Anthony K. v. State

Nebraska Advance Sheets
ANTHONY K. v. STATE 523
Cite as 289 Neb. 523
on the processing of paperwork and return of her license, in
the absence of being specifically told, was not sufficient to
warrant the giving of the instruction. We affirm the judgment
of the district court, which affirmed the judgment of the county
court for Platte County.
Affirmed.
Anthony K. and Arva K., individually and
as guardians and next friends on behalf
of their minor children, Ashley K.
et al., appellants, v. State of
Nebraska et al., appellees.
___ N.W.2d ___
Filed November 21, 2014. No. S-13-446.
1. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of
law, which an appellate court resolves independently of the trial court.
2. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to
dismiss is reviewed de novo.
3. Motions to Dismiss: Immunity: Appeal and Error. An appellate court reviews
de novo whether a party is entitled to dismissal of a claim based on federal or
state immunity, drawing all reasonable inferences for the nonmoving party.
4. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
5. Constitutional Law: States: Immunity. The immunity of states from suit is a
fundamental aspect of the sovereignty which the states enjoyed before ratification
of the federal Constitution and which they retain today.
6. Actions: States. It is inherent in the nature of sovereignty for a state not to be
amenable to the suit of an individual without its consent.
7. Constitutional Law: Legislature: Immunity: Waiver. Neb. Const. art. V, § 22,
provides that the State may sue and be sued and that the Legislature shall provide
by law in what manner and in what courts suits shall be brought. The State is
permitted to lay its sovereignty aside and consent to be sued on such terms and
conditions as the Legislature may prescribe.
8. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Douglas County: J Russell
Derr, Judge. Affirmed.
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Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for
appellants.
Jon Bruning, Attorney General, and John L. Jelkin for
appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ., and Bishop, Judge.
Wright, J.
I. NATURE OF CASE
This action was brought under 42 U.S.C. § 1983 (2012)
by Anthony K. and Arva K., individually and as guardians
and next friends on behalf of their seven minor children.
The plaintiffs sued the State of Nebraska, the Department of
Health and Human Services (DHHS), 18 DHHS employees
in their official and individual capacities, and the children’s
guardian ad litem. The plaintiffs sought general and special
damages for a violation of their constitutionally protected
rights to familial integrity, due process, and equal protec-
tion. They challenged the constitutionality of Neb. Rev. Stat.
§§ 43-283.01 and 43-1312 (Cum. Supp. 2012) and asked the
Douglas County District Court to temporarily and permanently
enjoin the application of the statutes in the State of Nebraska
and strike them down. This is the first of two related cases
filed by the plaintiffs.
Upon the defendants’ motion to dismiss, the district court
concluded that only the State had been properly served and
it dismissed all the remaining defendants for lack of proper
service. At that time, the court also determined that the State
was entitled to sovereign immunity as to the plaintiffs’ § 1983
claims that requested monetary damages. As to the plaintiffs’
remaining causes of action against the State, the court sus-
tained the State’s motion for summary judgment and dismissed
the plaintiffs’ complaint. For the reasons discussed below, we
affirm the dismissal of the plaintiffs’ complaint.
II. SCOPE OF REVIEW
[1] The question of jurisdiction is a question of law, which
an appellate court resolves independently of the trial court.
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In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868
(2012).
[2] A district court’s grant of a motion to dismiss is reviewed
de novo. Estate of Teague v. Crossroads Co-op Assn., 286 Neb.
1, 834 N.W.2d 236 (2013).
[3] We review de novo whether a party is entitled to dis-
missal of a claim based on federal or state immunity, drawing
all reasonable inferences for the nonmoving party. Michael E.
v. State, 286 Neb. 532, 839 N.W.2d 542 (2013).
[4] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the
evidence. Cartwright v. State, 286 Neb. 431, 837 N.W.2d
521 (2013).
III. FACTS
1. Juvenile Case
On February 12, 2000, the plaintiffs left their oldest three
minor children, Ashley K.; Anthony K., Jr. (Anthony Jr.);
and Ali K., unattended for 1 to 2 hours. Anthony notified
authorities that the children had been left alone. Following
the incident, the children were removed from the family
home by police. During the pendency of the juvenile case
involving Ashley, Anthony Jr., and Ali, four other children
were born to the plaintiffs. None of the other children were
removed from the home and were not the subjects of the
juvenile case.
On February 14, 2000, a petition was filed in the Lancaster
County Separate Juvenile Court alleging that Ashley, Anthony
Jr., and Ali lacked proper parental care by reason of the fault
or habits of the plaintiffs. Richard Bollerup was appointed as
the guardian ad litem for the minor children. Eighteen DHHS
caseworkers, case managers, or administrators were involved
in the case at various times over the next 9 years.
As part of the reunification plan, the court ordered Anthony
to undergo intensive outpatient therapy for substance abuse,
ordered the family to participate in family therapy, and ordered
the plaintiffs to maintain a safe and stable home for the
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children. The plaintiffs were granted visitation three times a
week, which included overnight visits.
On May 25, 2000, the children were placed back in the
plaintiffs’ home. Initial case closure was scheduled for April
2001. In March 2001, the plaintiffs were evicted from their res-
idence. Arva temporarily separated from Anthony and moved
into a city mission in Lincoln, Nebraska, with the children.
DHHS staff reported at this time that the plaintiffs were not
participating in services consistently, Ashley had been late or
absent from school, and Anthony had not entered alcohol treat-
ment. On March 28, a hearing was held and the juvenile court
ordered that the three oldest children be removed from the
home and that Anthony be subject to random alcohol screen-
ings. The new goal for case closure was set for October 2002,
but was later extended to April 2003.
The children continued to remain in out-of-home placement
due to the “‘lack of compliance with the plan as ordered by
the Court.’” This included Anthony’s failure to show comple-
tion of alcohol treatment and the plaintiffs’ continued need
to further demonstrate stability in their living situation. Case
closure was extended to September 2003, then to February and
December 2004, and finally to March 2005. Each time, the
stated reasons were because Anthony failed to show comple-
tion of substance abuse treatment and the plaintiffs failed to
show a stable living situation.
The plaintiffs attempted to complete the requirements
DHHS set forth in its plan for reunification. Anthony com-
pleted an alcohol treatment program, but could not produce a
certificate for the court because he could not afford to pay the
final bill. The continued reasons for out-of-home placement
of the three minor children included Anthony’s failing to pro-
duce the certificate of completion for his alcohol dependency
program and neither Anthony’s nor Arva’s having a valid
driver’s license, as well as the plaintiffs’ not having a big
enough car for all their children, not participating in therapy
to DHHS’ satisfaction, and not complying with the plan for
reunification. Anthony continually tested negative for drugs
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and alcohol, although he was cited for driving while under
the influence.
In July 2005, the plaintiffs attended a meeting with Todd
Reckling and Chris Peterson, administrators at DHHS. At the
meeting, Reckling and Peterson apologized for the length of
time for the case and informed the plaintiffs that they needed
to act quickly to reunify their family or the Lancaster County
Attorney was going to file a motion to terminate their paren-
tal rights. On July 14, the Lancaster County Attorney filed
a motion to terminate the plaintiffs’ parental rights. DHHS
employees recommended that the children be returned to the
family home.
In 2006, a Foster Care Review Board report recommended
reunification, noting that “‘case manager turnover, changes
in visitation schedules and in the permanency objective being
sought appear[ed] to have been more detrimental to the chil-
dren than if reunification had occurred’” and that those issues
had “‘as much impact on the children’s prolonged time in care
as the parent’s lack of progress.’” However, it also noted that
the plaintiffs’ lack of participation in services had contributed
to the children’s remaining in out-of-home placement.
In 2006, Ashley, Anthony Jr., and Ali were sent to South
Carolina to live with their grandparents. The plaintiffs initially
agreed to a guardianship with the grandparents, but later did
not agree to the guardianship, stating they were pressured into
agreeing to it. DHHS staff advised the plaintiffs at that time
that DHHS would seek to terminate their parental rights.
On March 14, 2008, DHHS noted that the guardianship
with the grandparents was no longer the permanency objec-
tive and requested that the county attorney refile for termina-
tion of parental rights as to Ashley, Anthony Jr., and Ali. The
juvenile court found that grounds for termination did not exist
and ordered the children returned to their parents and the case
closed. The plaintiffs and their four other children moved to
South Carolina to be closer to the three oldest children. In
November 2008, Ashley, Anthony Jr., and Ali were formally
placed in the care of the plaintiffs.
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2. P rocedural History
The plaintiffs filed the present lawsuit on February 5, 2010.
In it, they named as defendants the State; DHHS; 18 DHHS
employees who were assigned at various times to Ashley,
Anthony Jr., and Ali’s juvenile case as caseworkers, case man-
agers, or administrators; and the children’s guardian ad litem.
The case was brought pursuant to 42 U.S.C. § 1983. In the
complaint, they alleged six “causes of action.” Those were
(1) general violations of the plaintiffs’ constitutional rights,
including familial integrity, due process, and equal protec-
tion; (2) violation of the plaintiffs’ constitutionally protected
right to familial integrity, because reasonable efforts were not
made by DHHS to reunify the family; (3) violation of equal
protection, because the plaintiffs had to comply with arbitrary
requirements established by DHHS before they were reunited
as a family; (4) facial challenge of § 43-283.01, which requires
reasonable efforts to preserve and reunify the family; (5) as
applied challenge of § 43-283.01; and (6) as applied challenge
of § 43-1312, which requires a plan or permanency plan for
children placed in foster care. The plaintiffs requested general
and special damages for the first three causes of action and
temporary and permanent injunctions for the latter three causes
of action.
On April 22, 2010, the plaintiffs filed 18 praecipes for sum-
mons with the clerk of the district court for service of sum-
mons upon the DHHS employees at DHHS. The plaintiffs
filed a praecipe for summons via certified mail for service
upon DHHS at 301 Centennial Mall South, Lincoln, Nebraska
68509, and a praecipe for service upon Attorney General Jon
Bruning at 2115 State Capitol, Lincoln, Nebraska 68509. They
were unable to locate the guardian ad litem and moved for
alternative service. The record is unclear whether the motion
for alternative service was sustained or overruled, but there is
no indication that the guardian ad litem was ever served in this
case, and he did not enter an appearance.
On May 3, 2010, the certified mail for DHHS and the
DHHS employees was received and signed for at DHHS. The
certified mail receipts were signed for by John Hayden, a
DHHS employee whose duty was to sign for and receive all
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certified mail addressed to DHHS. Hayden did not conduct
an investigation whether each individual named on the certi-
fied mail was actually an employee of DHHS, and he had no
personal knowledge whether the named individual actually
received the certified mail for which he had signed a receipt.
Hayden was not an agent for any of the DHHS employees,
did not reside with them, and was not one of their fam-
ily members.
On May 3, 2010, only 3 of the 18 DHHS employees, Kee-
Sha Adams-Parks, Charlie Bennett, and Reckling, were still
employed by DHHS. Adams-Parks, Bennett, and Reckling did
not receive the summons and did not know they had been sued
in their individual capacities.
On June 3, 2010, the State moved to dismiss all of the
State defendants, including the State, DHHS, and the DHHS
employees, based on lack of subject matter jurisdiction, lack
of personal jurisdiction, lack of proper service of process, and
failure to state a claim upon which relief could be granted.
On January 7, 2011, the district court sustained the motion
to dismiss the State on causes of action one and two. It sus-
tained the motion to dismiss DHHS and the DHHS employees
in their official capacities due to lack of proper service. It
sustained the motion to dismiss all the DHHS employees in
their individual capacities (except Adams-Parks, Bennett, and
Reckling) because they were no longer employees at DHHS.
On January 25, 2011, the district court supplemented its pre-
vious order. It determined the State was protected from suit by
sovereign immunity. It found that the State and DHHS could
not be liable for monetary damages under 42 U.S.C. § 1983
when the State had not waived its immunity as a sovereign. It
dismissed causes of action one and two as to the State. It over-
ruled the State’s motion to dismiss as to the plaintiffs’ third
through sixth causes of action.
The district court then addressed DHHS’ and the DHHS
employees’ motion to dismiss for lack of proper service. It
determined it lacked jurisdiction over DHHS and the DHHS
employees in their official capacities, because the plaintiffs
failed to properly serve them. It concluded that the plain-
tiffs were required to send a summons for DHHS and each
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of the DHHS employees to the Attorney General in order to
gain jurisdiction over them as required by Neb. Rev. Stat.
§ 25-510.02 (Cum. Supp. 2014). It concluded that because the
plaintiffs served only the Attorney General at his office, only
the State had been properly served. Because the court lacked
jurisdiction, it sustained the motion to dismiss for DHHS and
the DHHS employees in their official capacities.
The district court found that it lacked jurisdiction over 15
of the DHHS employees in their individual capacities, because
they no longer worked for DHHS as of May 3, 2010, the date
the summons were received at DHHS. Because Hayden, the
DHHS employee who signed the certified mail receipts, had
no personal knowledge whether the DHHS employees named
in the plaintiffs’ complaint still worked at DHHS, was not
a member of their personal households, did not reside with
them, and had not been appointed or otherwise designated as
an agent to receive personal mail for them, service by certi-
fied mail at DHHS was not proper. It dismissed the 15 DHHS
employees in their individual capacities who no longer worked
at DHHS. But the court withheld determination on Adams-
Parks, Bennett, and Reckling pending a hearing to determine
if certified mail sent to DHHS was reasonably calculated to
provide them with notice that they had been sued in their indi-
vidual capacities. See Doe v. Board of Regents, 280 Neb. 492,
788 N.W.2d 264 (2010).
At this point, the remaining defendants were the State as
to the third through sixth causes of action and Adams-Parks,
Bennett, and Reckling in their individual capacities.
On June 27, 2011, the district court held a hearing to deter-
mine whether the three remaining DHHS employees had been
properly served in their individual capacities. The court found
that the method the plaintiffs used did not properly serve
Adams-Parks, Bennett, and Reckling and was not reasonably
calculated to notify them that they had been sued in their indi-
vidual capacities. The court dismissed Adams-Parks, Bennett,
and Reckling. At this point, only the State remained as a
defend­ant as to causes of action three through six.
On October 31, 2012, the State moved for summary judg-
ment on causes of action three through six. Those issues
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included whether the plaintiffs had standing to challenge the
constitutionality of §§ 43-283.01 and 43-1312 and whether
these issues were moot. The State argued that because the
plaintiffs no longer resided in Nebraska and were no longer
under the jurisdiction of DHHS, they therefore lacked standing
to challenge the constitutionality of the statutes. In the alterna-
tive, the State argued the issues were moot.
The district court sustained the State’s motion for summary
judgment. It again held that the State had not waived its sover-
eign immunity from suit under 42 U.S.C. § 1983 and could not
be liable to the plaintiffs for monetary damages. It concluded
that the plaintiffs lacked standing to challenge the constitu-
tionality of §§ 43-283.01 and 43-1312, because they were not
currently domiciled in Nebraska and had no intention of return-
ing to Nebraska. As such, they had no personal stake in the
outcome of their constitutional challenge. The court also con-
cluded that the issues were moot and that the plaintiffs failed
to show the likelihood of a similar case arising in the future in
which the juvenile court would be unable to address the situa­
tion. It dismissed the plaintiffs’ third through sixth causes of
action against the State.
On May 17, 2013, the plaintiffs filed this timely appeal. We
moved the case to our docket on our own motion. See Neb.
Rev. Stat. § 24-1106(3) (Reissue 2008).
IV. ASSIGNMENTS OF ERROR
The plaintiffs assign that the district court erred in (1) grant-
ing DHHS’ and the DHHS employees’ motion to dismiss on
the basis of failure to properly serve, (2) finding that the State
was entitled to sovereign immunity, (3) failing to find any
exception to immunity protection, and (4) finding that they
lacked standing to challenge the constitutionality of two stat-
utes and that the issues were moot.
V. ANALYSIS
1. DHHS and DHHS Employees’
Motion to Dismiss
We first consider whether DHHS and the DHHS employ-
ees in their official capacities were properly served and then
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discuss service upon the DHHS employees in their individ-
ual capacities.
(a) Service on DHHS and DHHS
Employees in Their
Official Capacities
Section 25-510.02 provides in part:
(1) The State of Nebraska, any state agency as defined
in section 81-8,210, and any employee of the state as
defined in section 81-8,210 sued in an official capacity
may be served by leaving the summons at the office of
the Attorney General with the Attorney General, dep-
uty attorney general, or someone designated in writing
by the Attorney General, or by certified mail or des-
ignated delivery service addressed to the office of the
Attorney General.
It is undisputed that the plaintiffs properly served the State
by serving summons on the Attorney General by certified
mail. The plaintiffs argue that by properly serving the State
at the Attorney General’s office, they also satisfied the statu-
tory requirements to serve DHHS and the DHHS employees
in their official capacities. The plaintiffs claim that service
of one summons and one complaint on the Attorney General
was sufficient to serve the State, DHHS, and the DHHS
employees in their official capacities, because the statute
does not require that the summons list each separately named
defendant. They claim that serving the Attorney General with
the complaint was sufficient notice to the State, because all
the defendants were distinctly named in the complaint. And
they assert that including each defendant’s name in the sum-
mons would only duplicate the notice the State received.
We disagree.
The plaintiffs were required to send a separate summons and
complaint to the Attorney General for each party to be served.
The purpose of § 25-510.02 is to give the State, its agencies,
and its employees “adequate notice of the case against it” and
to “eliminate ineffectual service.” See Ray v. Nebraska Crime
Victim’s Reparations Comm., 1 Neb. Ct. App. 130, 133, 487
N.W.2d 590, 592 (1992). Such purposes would not be served
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if a single summons could be served on the Attorney General
no matter how many State agencies or State employees were
being sued. Serving the Attorney General without naming the
parties to be served would require the State to ascertain parties
in the lawsuit and would thereby place an unreasonable bur-
den on the State to determine which of its numerous depart-
ments or agencies or which of its thousands of employees
were being sued. Additionally, requiring separate summons
for each party served through the Attorney General is consist­
ent with Neb. Rev. Stat. § 25-502.01 (Reissue 2008), which
requires a plaintiff to file the name and address “of each party
to be served” with the clerk of the court and state “the manner
of service for each party.”
In order to properly serve DHHS and the 18 DHHS employ-
ees in their official capacities, the plaintiffs had to request a
separate summons and complaint for each defendant and send
all the summonses and complaints to the Attorney General.
The plaintiffs did not do so. They served a single summons on
Attorney General Bruning via certified mail at his office in the
State Capitol. The summons was addressed only to Bruning
as the Attorney General and did not list DHHS or any of the
DHHS employees. No summons or complaint was served on
the Attorney General for any of those defendants as required
by § 25-502.01. Indeed, the proof of service showed that the
plaintiffs served those defendants at DHHS, located at 301
Centennial Mall South, in Lincoln.
By failing to serve separate summons on DHHS and the
DHHS employees in their official capacities through the
Attorney General, the plaintiffs failed to serve those defend­
ants. The district court correctly determined that service on
DHHS and the DHHS employees in their official capacities
was not proper and dismissed them from the suit.
(b) Service on DHHS Employees in
Their Individual Capacities
Eighteen DHHS employees were named in the plaintiffs’
complaint. As of May 3, 2010, when the summons were
received at DHHS, 15 of them no longer worked for DHHS.
Only Adams-Parks, Bennett, and Reckling still worked for
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DHHS. The plaintiffs served all 18 DHHS employees in their
individual capacities via certified mail at DHHS.
The plaintiffs do not claim that the 15 DHHS employees
who no longer worked at DHHS at the time of service were
properly served. The service method would not notify them
they had been sued in the underlying lawsuit. The district court
did not err in dismissing these 15 DHHS employees in their
individual capacities.
The question remains whether Adams-Parks, Bennett, and
Reckling were properly served via certified mail at their place
of employment. The plaintiffs argue that certified mail to
Adams-Parks’, Bennett’s, and Reckling’s employment address
was all that was required to effectuate proper service. The
State argues that serving the summons on these employees via
certified mail at their place of employment was not reasonably
calculated to apprise employees of the pendency of the action
and that the three DHHS employees who still worked at DHHS
never received the summons.
Because the DHHS employees were sued in their individual
capacities, Neb. Rev. Stat. § 25-508.01(1) (Cum. Supp. 2014)
governs service upon them. Section 25-508.01(1) provides that
“[a]n individual party . . . may be served by personal, resi-
dence, certified mail, or designated delivery service.”
Section 25-508.01(1) allowed the plaintiffs to elect the
method in which they wished to have service made on the
defendants. Neb. Rev. Stat. § 25-505.01(c) (Cum. Supp. 2014)
governs service by certified mail. It states that certified mail
service “shall be made . . . within ten days of issuance, send-
ing the summons to the defendant by certified mail with a
return receipt requested showing to whom and where delivered
and the date of delivery.” As we stated in Doe v. Board of
Regents, 280 Neb. 492, 788 N.W.2d 264 (2010), § 25-505.01
does not require service to be sent to the defendant’s resi-
dence or restrict delivery to the addressee. But due process
requires notice to be reasonably calculated to apprise inter-
ested parties of the pendency of the action and to afford them
the opportunity to present their objections. Doe v. Board of
Regents, supra.
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The 18 summons were received by DHHS. Hayden, an
employee of DHHS, signed the certified mail receipts for all of
the DHHS employees. He did so as part of his duties to sign
for certified mail addressed to DHHS. But Hayden was not an
appointed agent or an otherwise designated agent of any of the
defendants, was not one of their family members, and did not
reside with any of the defendants. He testified that he did not
know whether any of the named individuals received the mail
for which he signed certified mail receipts.
Once the certified mail was signed for by Hayden, it is
unclear where the mail was sent. But the evidence established
that Adams-Parks, Bennett, and Reckling did not receive the
certified mail and did not know about the summons until
almost a year later.
We conclude that service by certified mail at DHHS was
not “reasonably calculated to notify the defendants, in their
individual capacities, of the lawsuit.” See Doe, 280 Neb. at
496, 788 N.W.2d at 272. The plaintiffs elected to serve the
defendants by certified mail at their place of employment.
Although they were entitled to elect the method of service,
they bore the risk that the method was not reasonably calcu-
lated to provide notice to the individual that he or she had been
served. Hayden did not know whether Adams-Parks, Bennett,
or Reckling worked for DHHS. He was not authorized to
sign for their certified mail, and they did not receive the
summonses. DHHS was the largest state agency of the State
of Nebraska at the time the lawsuit was filed and employed
nearly 6,100 employees located across the state. The method
of service by certified mail at DHHS was not reasonably
calculated to notify Adams-Parks, Bennett, and Reckling that
they had been sued in their individual capacities. The district
court properly dismissed all 18 DHHS employees in their
individual capacities.
2. State’s Motion to Dismiss
The State moved to dismiss all six of the plaintiffs’ causes
of action against it. The district court sustained the State’s
motion as to the plaintiffs’ first and second causes of action,
because it concluded that the State had not waived its sovereign
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immunity as to § 1983 claims. But the court overruled the
State’s motion as to the remaining four causes of action, which
it determined “state[d] a claim against the State.”
We review de novo whether a party is entitled to dismissal of
a claim based on federal or state immunity, drawing all reason-
able inferences for the nonmoving party. Michael E. v. State,
286 Neb. 532, 839 N.W.2d 542 (2013). Upon our de novo
review, we find that the district court should have dismissed all
six of the plaintiffs’ causes of action against the State.
(a) State Has Not Waived
Sovereign Immunity
[5,6] The immunity of states from suit is a fundamental
aspect of the sovereignty which the states enjoyed before
ratification of the Constitution and which they retain today.
Northern Ins. Co. of N. Y. v. Chatham County, Ga., 547 U.S.
189, 126 S. Ct. 1689, 164 L. Ed. 2d 367 (2006), citing Alden
v. Maine, 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636
(1999). It is inherent in the nature of sovereignty for a state not
to be amenable to the suit of an individual without its consent.
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S. Ct. 1114,
134 L. Ed. 2d 252 (1996).
[7] Neb. Const. art. V, § 22, provides that the State may
sue and be sued and that the Legislature shall provide by law
in what manner and in what courts suits shall be brought.
McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009).
We have interpreted this provision to mean that the State is
permitted to lay its sovereignty aside and consent to be sued
on such terms and conditions as the Legislature may pre-
scribe. Id.
But Nebraska has not waived its sovereign immunity with
regard to § 1983 suits brought against it. See, Stagemeyer
v. County of Dawson, 192 F. Supp. 2d 998 (D. Neb. 2002);
Winnie v. Clarke, 893 F. Supp. 875 (D. Neb. 1995); Shearer
v. Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999), disap-
proved on other grounds, Simon v. City of Omaha, 267 Neb.
718, 677 N.W.2d 129 (2004); Patteson v. Johnson, 219 Neb.
852, 367 N.W.2d 123 (1985); Wiseman v. Keller, 218 Neb.
717, 358 N.W.2d 768 (1984). Neither did the enactment of
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§ 1983 abrogate the State’s 11th Amendment immunity by
creating a remedy against the State. See Will v. Michigan Dept.
of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d
45 (1989), holding limited on other grounds, Hafer v. Melo,
502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). There
is no waiver of immunity by the State that would allow the
plaintiffs’ suit against it.
(b) Exemption to Immunity
Protection Not Applicable
The plaintiffs argue that even though the State did not waive
its sovereign immunity, it was nonetheless subject to liability
in this instance because DHHS was implementing an unconsti-
tutional “‘policy statement, ordinance, regulation or decision
officially adopted’” and acting “‘pursuant to governmental
“custom.”’” Brief for appellants at 23. Their argument relies
upon Monell v. New York City Dept. of Social Services, 436
U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and Poor
Bear v. Nesbitt, 300 F. Supp. 2d 904 (D. Neb. 2004).
In Monell, 436 U.S. at 694, the Supreme Court held that
local municipalities could be liable for damages under § 1983
if the “execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury” on
the party. The court in Poor Bear, 300 F. Supp. 2d at 916, simi-
larly held that local governing bodies could be sued directly
under § 1983 where “‘the action that is alleged to be unconsti-
tutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
that body’s officers.’” Local governments could also be sued
for “‘constitutional deprivations visited pursuant to govern-
mental “custom” even though such a custom has not received
formal approval through the body’s official decisionmaking
channels.’” Id.
The plaintiffs argue that this exception to immunity applies
to the State. We disagree. This exception to immunity applies
only to local governments and not to State governments.
The Supreme Court in Monell stated, “Our holding today is,
of course, limited to local government units which are not
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considered part of the State for Eleventh Amendment pur-
poses.” 436 U.S. at 690 n.54. The court in Poor Bear, supra,
also limited its holding only to local governing bodies. The
plaintiffs do not cite to any authority that extends this excep-
tion to state governments.
(c) Immunity Barred All
Six Causes of Action
The district court concluded that sovereign immunity barred
only those causes of action against the State in which the plain-
tiffs’ requested monetary damages. This decision was consist­
ent with Michael E. v. State, 286 Neb. 532, 541, 839 N.W.2d
542, 551 (2013), in which we stated that “in an action brought
under 42 U.S.C. § 1983, 11th Amendment immunity does not
bar an action against a state or state officials for prospective
declaratory or injunctive relief.”
But in the absence of a waiver, sovereign immunity bars all
suits against the State, “regardless of the relief sought.” See
Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099,
87 L. Ed. 2d 114 (1985). See, also, Pennhurst State School
& Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L.
Ed. 2d 67 (1984) (holding limited on other grounds by Will v.
Michigan Dept. of State Police, 491 U.S. 58, 109 S. Ct. 2304,
105 L. Ed. 2d 45 (1989), and superseded by statute on other
grounds as stated in Joshua B. v. New Trier Tp. High School
Dist. 203, 770 F. Supp. 431 (N.D. Ill. 1991)). Therefore, in
Michael E., supra, we erred in stating that sovereign immunity
did not bar an action against the State for prospective relief,
and such statement is expressly disapproved.
To the extent our statement in Michael E. can be interpreted
as suggesting that the State can be sued under § 1983 for pro-
spective declaratory or injunctive relief, that interpretation is
also disapproved. The State cannot be sued under § 1983 for
prospective declaratory or injunctive relief. See Will, supra.
The State is removed from the category of possible defendants
in a § 1983 action by virtue of the fact that a state is not a
“person.” See id.
The district court erred in not dismissing all of the plaintiffs’
causes of action upon the State’s motion to dismiss, because
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they were all barred by sovereign immunity and because the
State cannot be sued under § 1983. We note, however, that
upon the State’s motion for summary judgment, the court dis-
missed the causes of action that survived the State’s motion
to dismiss. Granting summary judgment in favor of the State
accomplished the same result as sustaining the State’s motion
to dismiss as to all causes of action—a complete dismissal
of the plaintiffs’ complaint. The court reached the correct
result, and we therefore affirm the dismissal of the plain-
tiffs’ complaint.
4. Standing and Mootness
[8] The district court found that the plaintiffs did not have
standing to bring their three causes of action challenging
the constitutionality of §§ 43-283.01 and 43-1312. The court
also concluded that those three causes of action were moot.
The plaintiffs assign error to these determinations. However,
because we have concluded that all of the plaintiffs’ causes
of action should have been dismissed on sovereign immunity
grounds, we need not address standing or mootness. An appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it.
White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013).
VI. CONCLUSION
The district court properly dismissed DHHS and the DHHS
employees in their official and individual capacities for lack
of proper service of process. The court correctly determined
that sovereign immunity barred the plaintiffs’ claims against
the State for monetary damages under 42 U.S.C. § 1983. It
erred in not dismissing all of the plaintiffs’ causes of action
against the State upon the State’s motion to dismiss. Because
the court achieved the same result by dismissing all remaining
causes of action against the State on summary judgment, we
affirm the dismissal of the plaintiffs’ complaint.
Affirmed.
Cassel, J., not participating.