Opinion
CASE NO. 4:03CV3047
May 9, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Defendants' Motion to Dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). (Filing No. 6.) Briefs have been filed in support of and in opposition to the motion. (Filing Nos. 7, 10.)
FACTUAL BACKGROUND
The Plaintiff, Chrystal Holt, filed a Complaint against the following Defendants: State of Nebraska, Department of Health and Human Services ("HHS"); Ron Ross, in his official capacity as Director of HHS and in his individual capacity; Angie Roby, in her official capacity as a caseworker for HHS and in her individual capacity; and unknown servants and/or employees of HHS in their official and individual capacities. The Complaint is brought pursuant to 42 U.S.C. § 1983 and 1985 and also includes a pendent state law negligence claim. The incident complained of relates to the removal on or about June 29, 2001, of Holt's daughter, Lakisha Leas, from Holt's care while Holt and Lakisha were hospitalized. The Complaint alleges that Lakisha remained in HHS physical custody until on or about August 17, 2001, and in HHS legal custody until September 28, 2001. Holt requests declaratory and monetary relief. (Filing No. 1.)
Jurisdiction is alleged pursuant to 28 U.S.C. § 1331 and 1343(3). Holt also invokes pendent jurisdiction for the negligence claim.
Defendants filed a motion to dismiss certain claims pursuant to Rule 12(b)(1) and (6), alleging that the Court lacks subject matter jurisdiction and that the Complaint does not state claims upon which relief can be granted.
DISCUSSION
The Defendants argue that pursuant to Rule 12(b)(1) and (6):
1) all claims against HHS should be dismissed as barred by Eleventh Amendment immunity; 2) claims for monetary damages against Ross, Roby, and unknown "servants or employees" in their official capacities are also barred by the Eleventh Amendment; and 3) the negligence claim should be dismissed under the doctrine of sovereign immunity.
Standards
Rule 12(b)(1)For the court to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the defendant must successfully challenge the complaint either on its face or on the factual truthfulness of its averments. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a facial challenge to jurisdiction such as this, all factual allegations regarding jurisdiction would be presumed true and the motion may only succeed if the plaintiff has failed to allege an element necessary for subject matter jurisdiction. Id. "`Dismissal for lack of subject matter jurisdiction will not be granted lightly.'" Johnson v. Scotts Bluff County Sheriff's Dept., 245 F. Supp.2d 1056, 1058 (D.Neb. 2003) (quoting Wheeler v. St. Louis SW Ry. Co., 90 F.3d 327, 329 (8th Cir. 1996)). Rule 12(b)(6)
In considering a motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6), the Court must assume all the facts alleged in the complaint are true, and the Court must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears, beyond a doubt, that the plaintiff can prove no set of facts which would allow relief. Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show, on the face of the complaint, some insuperable bar to relief. Id.
Claims Against HHS — Sovereign Immunity
The Nebraska Constitution provides: "The state may sue and be sued, and the Legislature shall provide by law in what manner and in what courts suits shall be brought." Neb. Const. art. V, § 22. "This constitutional provision, however, is not self-executing and requires legislative action to waive the State's sovereign immunity." King v. Nebraska, 614 N.W.2d 341, 346 (Neb. 2000). For example, the Nebraska Legislature has waived sovereign immunity for certain specific tort actions against the State and its agencies pursuant to provisions of the Nebraska State Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 — 81-8,239.10 (Reissue 1996). This waiver does not extend to federal court actions: "Suits shall be brought in the district court of the county in which the act or omission complained of occurred or, if the act or omission occurred outside the boundaries of the State of Nebraska, in the district court for Lancaster County." Neb. Rev. Stat. § 81-8,214 (Reissue 1996). Section 81-8,214 operates as a limited waiver of sovereign immunity that allows an action to proceed against the State or a state agency exclusively in state district court. Menser v. Nebraska, No. 8:01CV635, 2002 WL 1558213, at *2-3 (D.Neb. July 12, 2002) (citing Peterson v. Nelson, Case No. 4:94CV3244, slip op. at 1-2 (D.Neb. May 15, 1997) (reaching the decision pursuant to Rule 12(b)(1))). Similarly, Neb. Rev. Stat. § 84-911 (Reissue 1999) permits a declaratory judgment action challenging the validity of state rules or regulations only in the District Court of Lancaster County, Nebraska.
The State of Nebraska has not waived its sovereign immunity to permit actions to be brought against the State under §§ 1983 or 1985, or under a theory of negligence, in federal court. For these reasons, all claims brought against the State of Nebraska Department of Health and Human Services will be dismissed.
Section 1983 and 1985 Claims for Monetary Damages Against Defendants Ross, Roby, and Unknown "Servants and/or Employees" in Their Official Capacities
Section 1983 provides a cause of action for those whose federal rights have been violated by "persons" acting under color of state law. A suit seeking monetary damages against a state employee in his or her official capacity, however , is the same as a suit against the state. Kentucky v. Graham, 473 U.S. 159, 165 (1985). The Eleventh Amendment provides state employees sued in their official capacities with immunity from suit for monetary damages. Quern v. Jordan, 440 U.S. 332, 341 (1979); Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Deretich v. Office of Admin. Hearings, 798 F.2d 1147, 1154 (8th Cir. 1986).
Congress has not abrogated states' sovereign immunity through its enactment of § 1983. Williams v. Missouri, 973 F.2d 599, 600 (8th Cir. 1992). Neither has the State of Nebraska waived immunity for the types of claims alleged in Holt's Complaint. Id. As requested by the Defendants, the claims against the individual Defendants in their official capacities must be dismissed insofar as they request monetary damages. Entergy Arkansas, Inc. v. Nebraska, 68 F. Supp.2d 1104, 1108 (D.Neb. 1999), aff'd in part, rev'd in part, 241 F.3d 979 (8th Cir.), cert. denied, 534 U.S. 889 (2001).
Holt's claim for monetary damages pursuant to 42 U.S.C. § 1985 against Defendants Ross, Roby, and unknown "servants and/or employees" in their official capacities is also barred. Id.; Cohen v. Nebraska, 83 F. Supp.2d 1042, 1046 (D.Neb. 2000). Pendent State Law Claim Claim for Monetary Relief
Official Capacities
The Nebraska Department of Health and Human Services is a state agency. Neb. Rev. Stat. § 81-101 (2003). HHS and its employees acting in their official capacities enjoy Eleventh Amendment immunity from state claims brought in federal court. Randolph v. Rodgers, 170 F.3d 850, 859 (8th Cir. 1999) (citing Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). A state may waive its immunity only where: the state has unequivocally waived its sovereign immunity and consented to suit in federal court; or Congress has unequivocally, through legislation, abrogated state immunity in order to effectuate the provisions of the Fourteenth Amendment. Kentucky v. Graham, 473 U.S. 159, 169 (1985); Pennhurst, 465 U.S. at 97-100; Burk v. Beene, 948 F.2d 489, 492-94 (8th Cir. 1991); Cohen, 83 F. Supp.2d at 1044.
The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI.
Holt does not argue, and the record does not reflect, that the State of Nebraska has waived its Eleventh Amendment immunity to tort claims in this Court. See id. Cf. Entergy, Arkansas, Inc. v. Nebraska, 241 F.3d 979, 987 (8th Cir. 2001) (affirming the court's prior holding that a state commission waived immunity to a federal contract suit by entering into a multi-state radioactive waste compact). In addition, as discussed previously in this Memorandum and Order, the Nebraska State Tort Claims Act, Neb. Rev. Stat. § 81-8,214, acts as a limited waiver of sovereign immunity which permits an action against the State or a state agency exclusively in state district court. Menser, No. 8:01CV635, 2002 WL 1558213, at *2. There is likewise no suggestion or indication of congressional abrogation.
Individual Capacities
The Nebraska Tort Claims Act does not generally prohibit claims against state employees in their individual capacities. Stagemeyer v. County of Dawson, 192 F. Supp.2d 998, 1008 (D.Neb. 2002). The Act defines a tort claim as a claim "caused by the negligent or wrongful act or omission of the employee of the state, while acting within the scope of his or her office or employment, . . ." Neb. Rev. Stat. § 81-8,210(4). This language has been interpreted as "limiting language" providing that tort claims against state employees for their actions occurring outside the scope of their employment do not fall within the Act. Stagemeyer, 192 F. Supp.2d at 1009.
The purpose of § 81-8,210(4) is to shield state employees from personal liability while performing their duties for the state. Cole v. Isherwood, 642 N.W.2d 524, 529 (Neb.Ct.App. 2002) (quoting Committee on Business and Labor, 91st Leg., 1st Sess. (Feb. 27, 1989)).
Applying these principles to Holt's case, if Ross, Roby and the unknown state employees acted outside their employment, Holt may pursue her claim against them in their individual capacities. However, if Ross, Roby and the unknown state employees acted within the scope of their employment, Holt cannot maintain a suit for money damages against those Defendants. See Bohl v. Buffalo Cty., 557 N.W.2d 668, 673 (Neb. 1997). Holt alleges in the Complaint that "[a]t all times relevant to this Complaint, Defendants acted under color and pretense of law." (Filing No. 1, ¶ 7.) Holt's pendent claim is then pleaded as follows: "Defendants negligently and with specific intent performed or failed to perform their specific duty when they acted to remove Plaintiff's child from her care, custody and control." (Filing No. 1, ¶ 27.) Holt's Complaint, therefore, only alleges that the Defendants acted within the scope of their state employment. The tort claim for monetary damages is not properly brought before this Court.
Claims for Declaratory Judgment
Holt's Complaint appears to request general declaratory relief with regard to all claims alleging both official and individual liability, i.e. §§ 1983, 1985, and the pendent state tort claim.
The federal Declaratory Judgment Act provides that when an "actual controversy" exists, a federal court may declare the rights and other legal relations of any interested party. 28 U.S.C. § 2201. To satisfy the "actual controversy" requirement, "`"a substantial controversy between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment"'" must exist. Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (8th Cir. 1996) (quoting Caldwell v. Gurley Refining Co., 755 F.2d 645, 649 (8th Cir. 1985) (quoting Maryland Cas. Co. v. Pacific Coal Oil Co., 312 U.S. 270, 273 (1941))). Or, in other words, "[a] live dispute must exist between the parties at the time of the court's hearing." Caldwell, 755 F.2d at 650. There is no precise test in determining whether the "actual controversy" requirement is met. Rather, each case must be examined to determine "whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Mattis v. Schnarr, 502 F.2d 588, 597 (8th Cir. 1974). The determination whether to entertain a request for declaratory judgment is made within the Court's discretion and is not dependent on whether the plaintiff has shown an entitlement to monetary relief. Id. at 591; BASF Corp. v. Symington, 50 F.3d 555, 557 (8th Cir. 1995). In Holt's case, the §§ 1983 and 1985 claims for official liability as well as the state tort claim for official and individual liability have been dismissed. Other than the general request for declaratory relief in the Complaint's prayer for relief, no facts are alleged in the Complaint that reveal a "substantial controversy" of "sufficient immediacy and reality" to justify the issuance of, or the continued entertainment of, a claim for declaratory relief. The Complaint alleges that Holt suffered damages and is entitled to monetary relief. Exercising its discretion, therefore, the Court finds that no "actual controversy" exists for purposes of declaratory relief. See Gopher Oil Co., 84 F.3d at 1050 (dismissing a claim for declaratory relief, stating that no facts indicated an immediate threat or tort liability). Cf. Mattis, 502 F.2d at 595 (finding that defendants have a live controversy because they have an interest in obtaining declaratory relief that would define their rights and powers as police officers).
Therefore, Holt's claims for declaratory relief, whether pled under §§ 1983, 1985, or her pendent state tort claim, are also dismissed.
CONCLUSION
For the reasons discussed, the following claims are dismissed pursuant to Rule 12(b)(6): all claims against the State of Nebraska Department of Health and Human Services; claims brought pursuant to 42 U.S.C. § 1983 and 1985 for monetary damages against Ron Ross, Angie Roby and "Unknown Servants and/or Employees" in their official capacities; the pendent state law negligence claim; all claims for declaratory relief as against all Defendants.
The only remaining claims are those brought pursuant to 42 U.S.C. § 1983 and 1985 for monetary relief against Ross, Roby and "Unknown Servants and/or Employees" in their individual capacities.
IT IS ORDERED:
1. The Defendants' Motion to Dismiss (Filing No. 6) is granted;
2. Dismissed are the following:
a. All claims against the Defendant, State of Nebraska, Department of Health and Human Services;
b. Claims brought pursuant to 42 U.S.C. § 1983 for monetary damages and declaratory relief against the remaining Defendants Ross, Roby, and unknown "servants and/or employees" in their official capacities;
c. Claims brought pursuant to 42 U.S.C. § 1985 for monetary damages and declaratory relief against the remaining Defendants Ross, Roby, and unknown "servants and/or employees" in their official capacities; and
d. The negligence claim for monetary damages and declaratory relief against the remaining Defendants Ross, Roby, and unknown "servants and/or employees"; and
3. The sole remaining claims are those brought pursuant to 42 U.S.C. § 1983 and 1985 for monetary relief against Defendants Ron Ross, Angie Roby and "Unknown Servants and/or Employees" in their individual capacities.