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Nebraska Supreme Court Advance S

301 Nebraska Report

ROUSE v. STATE

Cite as 301 Neb. 1037

Roy J. Rouse, appellant, 

State of Nebraska et al., appellees

___ N.W.2d ___

Filed January 4, 2019. No. S-18-129.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

3. Constitutional Law: Immunity: Waiver. Under the 11th Amendment, 

a nonconsenting state is generally immune from suit unless the state has 

waived its immunity.

4. Tort Claims Act: Legislature: Immunity: Waiver. The Legislature has 

provided limited waivers of the State’s sovereign immunity through the 

State Tort Claims Act, subject to statutory exceptions.

5. Statutes: Appeal and Error. Appellate courts give statutory language 

its plain and ordinary meaning and will not resort to interpretation to 

ascertain the meaning of statutory words which are plain, direct, and 

unambiguous.

6. Statutes: Immunity: Waiver. Statutes that purport to waive the State’s 

protection of sovereign immunity are strictly construed in favor of the 

sovereign and against the waiver.

7. Immunity: Waiver. To strictly construe against a waiver of sovereign 

immunity, courts broadly read exceptions to a waiver of sovereign 

immunity.

8. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found 

only where stated by the most express language of a statute or by such 

overwhelming implication from the text as will allow no other reasonable construction.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/15/2019 09:08 AM CDT
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ROUSE v. STATE

Cite as 301 Neb. 1037

9. Constitutional Law: Tort Claims Act: Immunity: Appeal and Error. 

An appellate court must determine whether the constitution and statutes 

provide sovereign immunity by reference to the nature of the underlying dispute. Where the facts are undisputed, whether an exception to 

immunity under the State Tort Claims Act precludes suit is a question 

of law.

10. Tort Claims Act: Federal Acts. Nebraska’s State Tort Claims Act is 

patterned after the Federal Tort Claims Act.

11. Tort Claims Act: Police Officers and Sheriffs. The structure and text 

of Neb. Rev. Stat. § 81-8,219(2) (Reissue 2014) demonstrate that the 

broad phrase “any law enforcement officer” covers all law enforcement 

officers, including correctional officers.

Appeal from the District Court for Lancaster County: Kev

R. McManaman, Judge. Aff

Roy J. Rouse, pro se.

Douglas J. Peterson, Attorney General, and David A. Lopez 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Miller-Lerman,

NATURE OF CASE

Roy J. Rouse is an inmate in the custody of the Nebraska 

Department of Correctional Services (DCS) who filed suit 

against various defendants in the district court for Lancaster 

County under the State Tort Claims Act (STCA), alleging that 

his personal property was seized and improperly disposed of 

by DCS personnel. In an order filed January 12, 2018, the 

district court granted all defendants’ motions to dismiss. In its 

order, the district court determined that Rouse’s claims against 

the individual defendants were barred by qualified immunity. 

The district court also determined that the claim against the 

State arose with respect to the detention of goods by DCS 

personnel who are law enforcement officers and was barred 

under Neb. Rev. Stat. § 81-8,219(2) (Reissue 2014), because 

the claim was an exception to the STCA’s waiver of sovereign 
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301 Nebraska Report

ROUSE v. STATE

Cite as 301 Neb. 1037

immunity. Section 81-8,219(2) provides that the State does not 

waive sovereign immunity for claims “arising with respect to 

the assessment or collection of any tax or fee, or the detention 

of any goods or merchandise by any law enforcement officer.” 

Rouse appeals from the portion of the order which dismissed 

his action against the State. We affirm.

STATEMENT OF FACTS

Rouse was an inmate housed at the Lincoln Correctional 

Center at the time of the events that gave rise to this action. 

Rouse brought this action under the STCA, Neb. Rev. Stat. 

§ 81-8,209 et seq. (Reissue 2014). He sued the State and various individuals by name. He alleged that when he was assigned 

to segregation on July 24, 2015, DCS personnel searched his 

cell and seized and negligently disposed of some of his personal property, including reference books, irreplaceable photographs, personal items, clothing, a sewing kit, and a compact 

disc player. Rouse attached exhibits to his complaint related 

to his claimed missing property, including letters denying his 

claims made through the grievance procedure, photographs of 

the missing items from the evidence file, and an itemized valuation of his property totaling $1,059.87.

All defendants moved to dismiss Rouse’s claim. In a consolidated order, the district court granted all defendants’ motions 

to dismiss. The district court determined that the claims against 

the individual defendants were barred by qualified immunity. 

Rouse does not assign error to this portion of the district 

court’s order. The district court next considered whether the 

STCA’s detention of goods exception, which provides that the 

waiver of immunity under the STCA shall not apply to “‘[a]ny 

claim arising with respect to the assessment or collection of 

any tax or fee, or the detention of any goods or merchandise 

by any law enforcement officer,’” bars Rouse’s claim. See 

§ 81-8,219(2).

The district court found that under § 81-8,219(2), corrections 

officers are “‘any law enforcement officers’” and that the loss 
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301 Nebraska Report

ROUSE v. STATE

Cite as 301 Neb. 1037

of Rouse’s personal property was a “‘detention of any goods or 

merchandise’” by such officers under that statute. The district 

court ultimately concluded that Rouse’s claim was within the 

exception to the State’s waiver of sovereign immunity under 

§ 81-8,219(2) and that thus, his action was barred by sovereign 

immunity. The district court dismissed Rouse’s action.

Rouse appealed.

ASSIGNMENTS OF ERROR

Rouse claims, summarized and restated, that the district 

court erred when it dismissed his claims against the State. 

He specifically contends that the State should not have been 

protected by sovereign immunity under the STCA detention of 

goods exception, § 81-8,219(2), because DCS personnel who 

detained his property are not “law enforcement officer[s].”

STANDARDS OF REVIEW

[1] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party. Amend v. Nebraska Pub. Serv. 

Comm., 298 Neb. 617, 905 N.W.2d 551 (2018).

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court 

below. Id.

ANALYSIS

This appeal presents the issue of whether exceptions to 

the STCA’s limited waiver of immunity in § 81-8,219 relating to “the detention of any goods or merchandise by any law 

enforcement officer” protects the State from Rouse’s claim that 

DCS personnel mishandled his inmate property. Rouse contends that the portion of the STCA at issue should not shield 

the State from his claims, because DCS personnel are not “law 

enforcement officer[s].”

The applicable exception to the waiver of sovereign immunity is § 81-8,219, which provides: “The State Tort Claims Act 
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301 Nebraska Report

ROUSE v. STATE

Cite as 301 Neb. 1037

shall not apply to: . . . (2) Any claim arising with respect to 

the assessment or collection of any tax or fee, or the detention 

of any goods or merchandise by any law enforcement officer.” For purposes of this opinion, we assume without deciding that DCS personnel “detained” Rouse’s property and thus 

satisfy § 81-8,219(2)’s “arising with respect to . . . the detention” requirement.

Statutory Waivers of Immunity and Exceptions 

to Waiver Are Construed in Favor 

of the Sovereign.

[3-5] Under the 11th Amendment, a nonconsenting state 

is generally immune from suit unless the state has waived its 

immunity. U.S. Const. amend. XI; Amend v. Nebraska Pub. 

Serv. Comm., supra. Nebraska Const. art. V, § 22, 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.” The Legislature has provided limited waivers of the 

State’s sovereign immunity through the STCA, subject to statutory exceptions. See § 81-8,219. Appellate courts give statutory 

language its plain and ordinary meaning and will not resort 

to interpretation to ascertain the meaning of statutory words 

which are plain, direct, and unambiguous. Amend v. Nebraska 

Pub. Serv. Comm., supra.

[6-8] Statutes that purport to waive the State’s protection of 

sovereign immunity are strictly construed in favor of the sovereign and against the waiver. Id. To strictly construe against a 

waiver of sovereign immunity, we broadly read exceptions to 

a waiver of sovereign immunity. See id. A waiver of sovereign 

immunity is found only where stated by the most express language of a statute or by such overwhelming implication from 

the text as will allow no other reasonable construction. Id.

[9] An appellate court must determine whether the constitution and statutes provide sovereign immunity by reference to 

the nature of the underlying dispute. See id. Where the facts 

are undisputed, whether an exception to immunity under the 

STCA precludes suit is a question of law. Id.
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ROUSE v. STATE

Cite as 301 Neb. 1037

“[A]ny law enforcement officer” in § 81-8,219(2) 

Includes DCS Correctional Officers.

As noted, § 81-8,219(2) provides that the State does not 

waive sovereign immunity for claims “arising with respect 

to . . . the detention of any goods or merchandise by any law 

enforcement officer.” If this exception to the STCA’s limited 

waiver of immunity applies to Rouse’s claims, his case was 

barred and properly dismissed. Rouse contends that the district court erred, because the exception to the State’s waiver 

of immunity for acts related to “the detention of any goods or 

merchandise by any law enforcement officer” does not apply 

to correctional officers. He also refers to other statutes in support of his contention. In contrast, the State asserts that Rouse’s 

action is barred by the language of § 81-8,219(2) and that such 

reading is supported by other Nebraska statutes. We agree with 

the State that § 81-8,219(2) bars Rouse’s action.

[10] The leading case relied upon by the district court and 

the State interpreted a provision of the Federal Tort Claims Act 

which is similar to § 81-8,219(2). See Ali v. Federal Bureau 

of Prisons, 552 U.S. 214, 128 S. Ct. 831, 169 L. Ed. 2d 680 

(2008). The Federal Tort Claims Act, at 28 U.S.C. § 2680(c) 

(2012), provides that sovereign immunity for torts committed 

by federal officers shall not apply to “[a]ny claim arising in 

respect of the assessment or collection of any tax or customs 

duty, or the detention of any goods, merchandise, or other 

property by any officer of customs or excise or any other law 

enforcement officer . . . .” We have recognized that Nebraska’s 

STCA is patterned after the Federal Tort Claims Act. Johnson 

v. State, 270 Neb. 316, 700 N.W.2d 620 (2005). Because 

Nebraska law is limited, we can look to federeal law for additional guidance. Id.

In Ali, a majority of the U.S. Supreme Court held that the 

federal statutory exception to the waiver of immunity contained in 28 U.S.C. § 2680(c) for acts related to “the detention 

of any goods, merchandise, or other property by any officer 

of customs or excise or any other law enforcement officer” 
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ROUSE v. STATE

Cite as 301 Neb. 1037

was clear and unambiguous and encompassed acts by Federal 

Bureau of Prisons officers. The Court reasoned that the phrase 

“‘any other law enforcement officer’ . . . suggests a broad 

meaning.” Ali v. Federal Bureau of Prisons, 552 U.S. at 218-19 

(emphasis in original).

Rouse distinguishes Ali by noting differences between 

Nebraska’s statutory STCA detention of goods provision and 

that of its federal counterpart. But he also finds similarities 

between the Nebraska and federal statutes. Finally, Rouse proposes that we adopt the reasoning of the dissenting justices in 

Ali and urges us to hold that § 81-8,219(2) applies only to law 

enforcement officers who detain goods or merchandise as part 

of the assessment or collection of taxes or fees. We decline to 

adopt the reasoning suggested by Rouse.

As noted above, we give statutory language its plain and 

ordinary meaning and we must broadly read exceptions to 

a waiver of sovereign immunity. Amend v. Nebraska Pub. 

Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018). Like the 

Federal Tort Claims Act, Nebraska’s STCA contains “[n]othing 

in the statutory context [which] requires a narrowing construction . . . .” Ali v. Federal Bureau of Prisons, 552 U.S. at 

227. To the contrary, we read Nebraska’s exception for “any 

law enforcement officer” more broadly than the Federal Tort 

Claims Act, which is limited to “any other” law enforcement 

officer. Thus, we interpret § 81-8,219(2) as encompassing acts 

by DCS personnel.

[11] We believe the text of § 81-8,219(2) indicates that 

the Legislature intended to preserve immunity from claims 

arising from the detention of property, and there is no indication of any intent that immunity from those claims turns 

on the type of official enforcing the law. The structure and 

text of § 81-8,219(2) demonstrate that the broad phrase “any 

law enforcement officer” covers all law enforcement officers, 

including correctional officers. Referring to the word “any” 

in Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219, 128 

S. Ct. 831, 169 L. Ed. 2d 680 (2008), the Court reasoned that 
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ROUSE v. STATE

Cite as 301 Neb. 1037

read naturally, the word “any” has an expansive meaning that 

is “‘“one or some indiscriminately of whatever kind,”’” quoting United States v. Gonzales, 520 U.S. 1, 117 S. Ct. 1032, 

137 L. Ed. 2d 132 (1997). We agree with the reasoning in Ali, 

and applying it to Nebraska’s statute, we conclude that DCS 

personnel are “any law enforcement officer[s]” covered by 

the exception to the waiver of sovereign immunity outlined in 

§ 81-8,219(2), and therefore, the State remains immune from 

claims such as that filed by Rouse. We observe that other 

states’ appellate courts have adopted the reasoning in Ali and 

have concluded that correctional officers are “any law enforcement officer[s]” under similar state tort claims statutes. See, 

e.g., Mason v. Department of Correction, 75 Mass. App. 1111 

(2009) (unpublished disposition listed in table of “Summary 

Dispositions” at 916 N.E.2d 423).

For completeness, we note that both Rouse and the State 

refer to numerous Nebraska statutes not repeated here as well 

as other sources in an effort to convince us of the meaning of 

§ 81-8,219(2) in general and “any law enforcement officer” in 

particular. None of these authorities are definitive or particularly convincing. Instead, we believe our interpretation of the 

language of § 81-8,219(2) itself provides the most coherent 

reading of the statute in question.

CONCLUSION

Rouse, an inmate, claimed money damages for property 

detained by DCS personnel while he was housed in segregation. Because the DCS personnel are “law enforcement 

officer[s]” covered by the exception to the waiver of sovereign immunity contained in § 81-8,219(2), the State has not 

waived sovereign immunity from Rouse’s claims. The district court did not err when it concluded that Rouse’s claims 

were barred by the State’s sovereign immunity and dismissed 

Rouse’s action.

Affirmed