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Anthony K. and Arva K., individually and as

guardians and next friends on behalf of

their minor children, Ashley K. et al., 

appellants, v. Nebraska Department

of Health and Human Services

et al., appellees.

___ N.W.2d ___

Filed November 21, 2014. No. S-12-736.

1. 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.

2. Motions to Dismiss: Appeal and Error. A district court’s grant of a motion to 

dismiss is reviewed de novo.

3. Actions: Immunity. A suit against a state agency is a suit against the State and 

is subject to sovereign immunity.

4. Actions: Public Officers and Employees: Pleadings. Official-capacity suits 

generally represent only another way of pleading an action against an entity of 

which an officer is an agent.

5. Actions: Public Officers and Employees: Immunity: Appeal and Error. In 

reviewing actions against state officials, a court must determine whether an action 

against individual officials sued in their official capacities is in reality an action 

against the state and therefore barred by sovereign immunity.

6. Actions: Parties. In an action for the recovery of money, the State is the real 

party in interest.

7. Actions: Public Officers and Employees: Immunity: Waiver: Damages. 

Sovereign immunity—if not waived—bars a claim for money even if the plaintiff 

has named individual state officials as nominal defendants.

8. Actions: Parties: Public Officers and Employees. Official-capacity actions for 

prospective relief are not treated as actions against the State.

9. Public Officers and Employees: Immunity. Where a court commands a state 

official to do nothing more than refrain from violating federal law, he or she is 

not the State for sovereign immunity purposes.

10. Public Officers and Employees: Immunity: Declaratory Judgments: 

Injunction. The State’s sovereign immunity does not bar a claim against state 

officers which seeks only prospective declaratory or injunctive relief for ongoing 

violations of federal law.

11. Actions: Guardians Ad Litem: Damages: Immunity. A guardian ad litem is 

entitled to absolute immunity from any suit for damages based upon conduct 

within the scope of his or her judicially imposed duties as guardian ad litem.

12. 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.

13. Limitations of Actions: Pleadings. A challenge that a pleading is barred by the 

statute of limitations is a challenge that the pleading fails to allege sufficient facts 

to constitute a claim upon which relief can be granted.
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14. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure 

to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state 

a claim to relief that is plausible on its face.

15. Motions to Dismiss: Appeal and Error. When reviewing a dismissal order, the 

appellate court accepts as true all the facts which are well pled and the proper and 

reasonable inferences of law and fact which may be drawn therefrom, but not the 

pleader’s conclusions.

16. Civil Rights: Limitations of Actions: States. The law of the state in which an 

action is brought under 42 U.S.C. § 1983 (2012) provides the appropriate statute 

of limitations.

17. Civil Rights: Limitations of Actions. For purposes of selecting one statute of 

limitations, actions brought under 42 U.S.C. § 1983 (2012) shall be characterized 

as personal injury actions.

18. ____: ____. In Nebraska, claims brought under 42 U.S.C. § 1983 (2012) are 

governed by the statute of limitations in Neb. Rev. Stat. § 25-207 (Reissue 2008).

19. Limitations of Actions. A statute of limitations begins to run as soon as the 

claim accrues.

20. Civil Rights: Limitations of Actions: States. Although state law determines 

which statute of limitations applies to a claim brought under 42 U.S.C. § 1983 

(2012), the accrual date of a § 1983 cause of action is a question of federal law 

that is not resolved by reference to state law.

21. Civil Rights: Limitations of Actions. A claim brought under 42 U.S.C. § 1983 

(2012) generally accrues when the plaintiff has a complete and present cause 

of action.

22. Constitutional Law: Civil Rights: Pleadings. In order to state a cause of 

action under 42 U.S.C. § 1983 (2012), a plaintiff must allege facts establishing 

conduct by a person acting under color of state law which deprived the plaintiff 

of rights, privileges, or immunities secured by the Constitution and laws of the 

United States.

23. Constitutional Law: Civil Rights: Limitations of Actions. A claim under 42 

U.S.C. § 1983 (2012) accrues when a plaintiff knows or should know that his 

or her constitutional rights have been violated. The plaintiff is deemed to know 

or have reason to know at the time of the act itself and not at the point that the 

harmful consequences are felt.

24. Limitations of Actions: Torts. The continuing tort doctrine does not delay when 

claims based on continuing torts accrue.

25. ____: ____. The continuing tort doctrine is not a separate doctrine, or an exception to the statute of limitations, as much as it is a straightforward application of 

the statute of limitations: It simply allows claims to the extent that they accrue 

within the limitations period.

Appeal from the District Court for Douglas County: J Russell

Derr, Judge. Affirmed.

Amy Sherman, of Sherman & Gilner, P.C., L.L.O., for 

appellants.
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Jon Bruning, Attorney General, and John L. Jelkin for 

appellees Nebraska Department of Health and Human Services 

et al.

Monica Green Kruger for appellee Richard Bollerup.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

and Miller-Lerman, JJ., and Bishop, Judge.

Wright, J.

I. NATURE OF CASE

This appeal involves the second of two cases 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. In both this and the first case, the plaintiffs alleged that over the course of the juvenile proceedings 

involving three of their children, the plaintiffs’ constitutional 

and statutory rights had been violated.

The plaintiffs’ claims against the State of Nebraska were 

determined in Anthony K. v. State, ante p. 523, ___ N.W.2d 

___ (2014) (Anthony K. I), where we held that all six of the 

plaintiffs’ causes of action against the State were barred by 

sovereign immunity. The instant case deals with the plaintiffs’ 

claims against the Nebraska Department of Health and Human 

Services (DHHS), 18 DHHS employees in their official and 

individual capacities, and the children’s guardian ad litem. 

Although premised on the same facts and arising from the 

same allegations as Anthony K. I, this case presents different 

issues for our resolution.

In the instant case, the plaintiffs appeal the orders of the 

Douglas County District Court that sustained the defendants’ 

motions to dismiss. In particular, the plaintiffs challenge the 

district court’s findings that the defendants were entitled to 

sovereign, qualified, absolute, and statutory immunities and 

that the plaintiffs’ claims against the DHHS employees in their 

individual capacities were barred by the statute of limitations. 

For the following reasons, we affirm the dismissal of the plaintiffs’ claims.
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II. SCOPE OF REVIEW

[1] We review 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. Michael E. 

v. State, 286 Neb. 532, 839 N.W.2d 542 (2013).

[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).

III. FACTS

The background information in this case is discussed at 

length in Anthony K. I. In summary, three minor children of 

the plaintiffs, Ashley K.; Anthony K., Jr. (Anthony Jr.); and 

Ali K., were removed from the family home in 2000. For 

various reasons, the children were not returned to the care of 

their parents until 2008 and the juvenile case was not closed 

until 2009.

The plaintiffs initially filed suit against the State, DHHS, 

the individual DHHS employees assigned to the juvenile case, 

and the guardian ad litem. However, due to lack of proper 

service, the district court dismissed all defendants except the 

State. Because more than 6 months had passed from the filing 

of the initial lawsuit, any service of process under the plaintiffs’ first complaint would have been ineffective on DHHS, 

the DHHS employees, and the guardian ad litem. See Neb. 

Rev. Stat. § 25-217 (Reissue 2008). Therefore, the plaintiffs 

filed the present lawsuit against these parties under a separate complaint.

The plaintiffs alleged that DHHS, the DHHS employees, and 

the guardian ad litem violated the plaintiffs’ right to familial 

integrity. They claimed that Ashley, Anthony Jr., and Ali were 

wards of the State from 2000 to 2009 and that the family was 

separated for too long. They alleged that DHHS and the DHHS 

employees failed to make reasonable efforts to preserve or 

reunify the family and that they had a duty to reunify the family sooner than when it finally occurred. The plaintiffs asked 

for declaratory judgment, general and special damages, costs, 

and attorney fees. They did not seek injunctive relief.
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Richard Bollerup, the guardian ad litem for the minor 

children, moved to dismiss for failure to state a claim upon 

which relief could be granted. Subsequently, DHHS and the 

DHHS employees in their official capacities also moved 

to dismiss.

On September 1, 2011, the district court determined that 

DHHS and the DHHS employees sued in their official capacities were shielded by sovereign immunity from an action 

brought under 42 U.S.C. § 1983 and could not be liable to the 

plaintiffs for monetary damages. It thus sustained the motions 

to dismiss as to the plaintiffs’ § 1983 claims against DHHS 

and the DHHS employees in their official capacities. It sustained Bollerup’s motion to dismiss based on his right to absolute immunity as the guardian ad litem. Following this order, 

the only defendants remaining in the action were the DHHS 

employees in their individual capacities.

Of the 18 DHHS employees sued by the plaintiffs, 2 were 

not named in their individual capacities and 10 were not 

properly served in that capacity. Those 12 employees were 

not parties to the present action in their individual capacities. 

Between August and October 2011, the six employees who 

had been properly served (David Hammer, Todd Reckling, 

Chris Peterson, Sandy Thompson, Jennifer Holt, and Jessica 

Hatfield) filed motions to dismiss the plaintiffs’ claims against 

them in their individual capacities. They argued that these 

claims should be dismissed, because the claims were barred 

by sovereign, qualified, absolute, and statutory immunities and 

by the statute of limitations. Hereinafter, we refer to the six 

DHHS employees who were parties to the present action in 

their individual capacities and who filed motions to dismiss as 

“the six employees.”

On February 3, 2012, the district court sustained the 

motions to dismiss filed by the six employees. It determined 

that they had (1) sovereign immunity for all actions performed within the scope of their duties as DHHS employees; (2) absolute immunity for any testimony given by them 

as witnesses in the juvenile court hearings; (3) qualified 

immunity, because there was no clearly established right to 
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familial integrity; and (4) statutory immunity under the Adult 

Protective Services Act.

The district court also concluded that the claims against the 

six employees in their individual capacities were barred by the 

applicable statute of limitations. It explained that even if there 

was a continuing pattern of tortious conduct, as the plaintiffs 

had argued, recovery for each injury had to be sought within 4 

years. Given that the plaintiffs’ complaint was filed on March 

8, 2011, their “period of recovery would be limited to the 

four years before that date.” However, the plaintiffs complaint 

contained “no allegations against [the six employees], in their 

individual capacities, after 2005.” Therefore, the court held 

that the statute of limitations for the plaintiffs’ claims against 

the six employees in their individual capacities ran “sometime 

in 2009.”

On March 5, 2012, the plaintiffs appealed the district court’s 

decisions. The Nebraska Court of Appeals issued an order 

to show cause why the district court’s orders were final and 

appealable. The record before the Court of Appeals did not 

include dismissal orders for the DHHS employees who had 

not been properly served in their individual capacities. The 

plaintiffs failed to respond, and on June 8, 2012, in case No. 

A-12-194, the appeal was dismissed without opinion.

On July 20, 2012, at the request of the plaintiffs, the district 

court issued an order dismissing the DHHS employees who 

had not been properly served in their individual capacities. On 

August 15, the plaintiffs timely filed the present 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, summarized and restated, that the 

district court erred in (1) sustaining the defendants’ motions 

to dismiss; (2) finding that the defendants were shielded 

from liability on the basis of sovereign, absolute, qualified, 

and statutory immunities; (3) failing to find any exception 

to the defendants’ immunity; (4) finding that the plaintiffs 

failed to plead that their constitutionally protected rights were 
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violated; (5) finding that their claims were barred by applicable statutes of limitations; and (6) holding that their claims 

were based in tort.

V. ANALYSIS

1. Motion to Dismiss Filed by

DHHS and DHHS Employees

in Official Capacities

The district court sustained the motion to dismiss filed by 

DHHS and the DHHS employees in their official capacities, 

because it concluded that they were immune from the plaintiffs’ § 1983 claims.

(a) DHHS

[3] A suit against a state agency is a suit against the State 

and is subject to sovereign immunity. Michael E. v. State, 286 

Neb. 532, 839 N.W.2d 542 (2013). “A suit generally may not 

be maintained directly against . . . an agency or department of 

the State, unless the State has waived its sovereign immunity.” 

Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 

684, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982). In Anthony 

K. I, we determined that the State had not waived its sovereign immunity as to § 1983 claims. In the absence of such a 

waiver, the plaintiffs’ claims against DHHS in the instant case, 

which were brought under § 1983, are also barred by sovereign immunity.

The plaintiffs argue that even though the State did not 

waive its sovereign immunity, DHHS was nonetheless subject 

to liability, because it was implementing an unconstitutional 

“‘policy statement, ordinance, regulation or decision officially 

adopted’” and acting “‘pursuant to governmental “custom.”’” 

See brief for appellants at 15. We previously addressed this 

argument, and dismissed it, in Anthony K. I. The district court 

did not err in sustaining DHHS’ motion to dismiss.

(b) DHHS Employees in 

Official Capacities

We first clarify that sovereign immunity has potential applicability to suits brought against state officials in their official 
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capacities only. It does not apply when state officials are sued 

in their individual capacities—that is, when a suit seeks to hold 

state officials personally liable. See Hafer v. Melo, 502 U.S. 

21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). This is true even 

when state officials are sued in their individual capacities for 

acts taken within the scope of their duties and authority as state 

officials. See id.

[4,5] “Official-capacity suits . . . ‘generally represent only 

another way of pleading an action against an entity of which an 

officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165, 

105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). Thus, in reviewing 

actions against state officials, “a court must determine whether 

an action against individual officials sued in their official 

capacities is in reality an action against the state and therefore 

barred by sovereign immunity.” Michael E., 286 Neb. at 540, 

839 N.W.2d at 550-51.

[6,7] In an action for the recovery of money, the State is the 

real party in interest. Id. This is because “‘a judgment against 

a public servant “in his official capacity” imposes liability 

on the entity that he represents.’” See Graham, 473 U.S. at 

169. Accordingly, “sovereign immunity—if not waived—bars a 

claim for money even if the plaintiff has named individual state 

officials as nominal defendants.” Michael E., 286 Neb. at 541, 

286 N.W.2d at 551.

[8-10] In contrast, “official-capacity actions for prospective 

relief are not treated as actions against the State.” Graham,

473 U.S. at 167 n.14. See, also, VA Office for Prot. and 

Advoc. v. Stewart, ___ U.S. ___, 131 S. Ct. 1632, 179 L. Ed. 

2d 675 (2011). Where a court “commands a state official to 

do nothing more than refrain from violating federal law, he 

[or she] is not the State for sovereign-immunity purposes.” 

Stewart, 131 S. Ct. at 1638. Thus, the State’s sovereign immunity “does not bar a claim against state officers which seeks 

only prospective declaratory or injunctive relief for ongoing 

violations of federal law.” See Doe v. Board of Regents, 280 

Neb. 492, 510, 788 N.W.2d 264, 281 (2010). See, also, Green 

v. Mansour, 474 U.S. 64, 106 S. Ct. 423, 88 L. Ed. 2d 371 

(1985); Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 

2002); Bragg v. West Virginia Coal Ass’n, 248 F.3d 275 (4th 
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Cir. 2001); Walker v. Livingston, 381 Fed. Appx. 477 (5th 

Cir. 2010).

In the instant case, the plaintiffs sued the DHHS employees 

in their official capacities for general and special damages, 

costs, and attorney fees and for a declaratory judgment that 

they had violated the plaintiffs’ rights. The plaintiffs did not 

seek injunctive relief. As we determined in Anthony K. I, the 

State has not waived its sovereign immunity as to § 1983 

claims. Therefore, the plaintiffs’ claims against the DHHS 

employees in their official capacities which were brought 

pursuant to § 1983 and which sought monetary damages 

are barred by sovereign immunity. Additionally, the plaintiffs’ 

claims against the employees in their official capacities for 

declaratory judgment are barred, because they did not allege 

a continuing violation of federal law. Nor is there a threat 

of future violations—Ashley, Anthony Jr., and Ali’s juvenile 

case is closed, and the family no longer lives in Nebraska. 

In the absence of such allegations, the plaintiffs’ claims for 

declaratory judgment do not fall within the limited exception 

for actions seeking prospective relief for ongoing violations of 

federal law.

All of the plaintiffs’ claims against the DHHS employees in 

their official capacities are barred by sovereign immunity. The 

district court did not err in sustaining the motions to dismiss as 

to the DHHS employees in their official capacities.

2. Motion to Dismiss Filed

by Guardian Ad Litem

The district court sustained the guardian ad litem’s motion 

to dismiss, because it concluded that he was immune from the 

plaintiffs’ § 1983 claims. We agree.

Most public officials are entitled only to qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 

125 L. Ed. 2d 209 (1993). However, certain officials are given 

“absolute protection from damages liability” for their performance of specific functions. See Buckley, 509 U.S. at 269. 

Such absolute immunity originated in common law and was 

intended to “protect the integrity of the judicial process.” See 

Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 88 
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L. Ed. 2d 507 (1985). See, also, Briscoe v. LaHue, 460 U.S. 

325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983).

In the instant case, the district court determined, based on 

Billups v. Scott, 253 Neb. 287, 571 N.W.2d 603 (1997), that 

absolute immunity should extend to Bollerup, the children’s 

guardian ad litem. The plaintiffs argue that it should not.

[11] In Billups, supra, we considered whether guardians ad 

litem were entitled to absolute immunity. We explained that 

the scope of absolute immunity was determined by “official 

functions performed, and not the office held.” See id. at 290, 

571 N.W.2d at 605. And we noted that in order to determine 

whether to grant absolute immunity, a court must “examine 

the nature of the functions with which a particular official 

. . . has been lawfully entrusted.” See id. After examining the 

role of guardians ad litem, we agreed with the conclusion of 

a Colorado court that guardians ad litem were “adjunct[s] of 

the court.” Id. at 292, 571 N.W.2d at 606. Thus, we concluded 

that a guardian ad litem is entitled to absolute immunity from 

any suit for damages based upon conduct within the scope of 

his or her judicially imposed duties as guardian ad litem. See 

Billups, supra.

Other courts have similarly recognized that a guardian ad 

litem has absolute immunity for actions that he or she takes as 

part of the judicial process. See, e.g., Dahl v. Charles F. Dahl, 

M.D., P.C., 744 F.3d 623 (10th Cir. 2014); Jones v. Brennan, 

465 F.3d 304 (7th Cir. 2006); Dornheim v. Sholes, 430 F.3d 

919 (8th Cir. 2005); Fleming v. Asbill, 42 F.3d 886 (4th Cir. 

1994); Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989); Gardner 

by Gardner v. Parson, 874 F.2d 131 (3d Cir. 1989).

The plaintiffs argue the district court incorrectly relied on 

Billups to determine that Bollerup was entitled to absolute 

immunity, because the guardian ad litem in Billups was sued 

under a negligence theory and not in a § 1983 action. We do 

not find this difference significant. In Billups, we determined 

that absolute immunity attached to the functions performed 

by guardians ad litem within the scope of their duties as 

adjuncts of a court. Under that test, the applicability of absolute immunity to any particular action depended upon whether 

the action was performed within the scope of the guardian ad 
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litem’s duties and not upon the theory under which he or she 

was sued. Indeed, in Billups, we discussed with approval a 

case in which absolute immunity was held to protect a guardian ad litem from § 1983 claims. See Kurzawa v. Mueller, 732 

F.2d 1456 (6th Cir. 1984). The absolute immunity recognized 

in Billups was not limited to negligence actions against guardians ad litem.

The district court did not err in relying upon Billups, supra, 

or in concluding, based upon that case, that Bollerup was absolutely immune from the plaintiffs’ complaint. Bollerup was 

entitled to absolute immunity against any suit for damages arising from conduct within the scope of his duties as guardian ad 

litem. See id. The plaintiffs’ complaint did not allege any facts 

which would support a finding that Bollerup acted outside of 

the duties assigned to him by the juvenile court. In the absence 

of any such allegations, absolute immunity barred the plaintiffs’ claims against Bollerup.

The plaintiffs argued that Bollerup was not entitled to 

absolute immunity because he failed to carry out his duties 

as guardian ad litem on behalf of the minor children. In the 

plaintiffs’ complaint, they alleged that he failed to carry out 

his duties by failing to “consult with the children . . . throughout the life of the case.” The district court concluded that this 

allegation did not defeat Bollerup’s absolute immunity, and 

we agree.

In Marr v. Maine Dept. of Human Services, 215 F. Supp. 

2d 261 (D. Me. 2002), the mother of a minor child who was 

killed while in the state’s care sued the guardian ad litem who 

handled her child’s juvenile case. She alleged that the negligence of the guardian ad litem led to the death of her child, 

because the guardian ad litem did not perform any investigations into how the child was being treated, did not report that 

the child was being abused, and saw the child only once during 

the pendency of the juvenile proceedings. In finding absolute 

immunity, the Maine court concluded that the factual allegations of failure to perform “merely state[d] [the plaintiff’s] dissatisfaction with the manner in which [the guardian ad litem] 

carried out his appointed duties, rather than alleging instances 

in which [the guardian ad litem] performed outside the scope 
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of his authorized duties.” Id. at 269. The court held that dissatisfaction with the performance of a guardian ad litem’s delegated duties was not enough to “remove the protections” of 

his or her immunity as guardian ad litem. See id.

We conclude this reasoning is applicable to the case at bar. 

The plaintiffs’ claim that Bollerup failed to perform his duties 

did not allege that he had acted outside the scope of his duties 

as guardian ad litem but merely expressed dissatisfaction with 

how he carried out those duties. Such an allegation was not 

enough to overcome the absolute immunity to which Bollerup 

was entitled in the performance of his judicially delegated 

duties. See id.

In the absence of allegations that Bollerup acted outside the 

scope of his duties as guardian ad litem, absolute immunity 

barred the plaintiffs’ claims against him. The district court did 

not err in sustaining his motion to dismiss.

3. Motions to Dismiss Filed

by Six Employees in

Individual Capacities

The district court provided two reasons for dismissing 

the plaintiffs’ claims against the six employees in their individual capacities: The claims were barred (1) due to various 

immunities of the six employees and (2) by the statute of 

limitations. In their motions to dismiss, the six employees 

pleaded multiple grounds for dismissal, including the statute 

of limitations.

[12] Although the plaintiffs assign error to both aspects of 

the district court’s decision, we address only the statute of 

limitations, because it is dispositive of the plaintiffs’ claims 

against the six employees in their individual capacities. An 

appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it. Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d 

868 (2013).

[13] The six employees raised the statute of limitations 

within their motions to dismiss pursuant to Neb. Ct. R. Pldg. 

§ 6-1112(b)(6). A challenge that a pleading is barred by the 

statute of limitations is a challenge that the pleading fails to 
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allege sufficient facts to constitute a claim upon which relief 

can be granted. Carruth v. State, 271 Neb. 433, 712 N.W.2d 

575 (2006).

[14] To prevail against a motion to dismiss for failure to 

state a claim, a plaintiff must allege sufficient facts, accepted 

as true, to state a claim to relief that is plausible on its face. 

Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 

(2013). As such, if a “complaint on its face shows that the 

cause of action is time barred, the plaintiff must allege facts 

to avoid the bar of the statute of limitations.” See Lindner v. 

Kindig, 285 Neb. 386, 393, 826 N.W.2d 868, 874 (2013). See, 

also, L.J. Vontz Constr. Co. v. Department of Roads, 232 Neb. 

241, 440 N.W.2d 664 (1989).

[15] To determine whether the district court erred in granting the six employees’ motions to dismiss on statute of limitations grounds, the first question is whether the face of the 

plaintiffs’ complaint shows that the claims against the six 

employees were time barred. If it does, we then consider 

whether the plaintiffs’ complaint alleged facts that show the 

claims are not barred. When reviewing a dismissal order, the 

appellate court accepts as true all the facts which are well 

pled and the proper and reasonable inferences of law and 

fact which may be drawn therefrom, but not the pleader’s 

conclusions. White v. Kohout, 286 Neb. 700, 839 N.W.2d 

252 (2013).

(a) Face of Complaint Shows 

Claims Were Time Barred

[16-18] The plaintiffs sued the six employees in their individual capacities under § 1983. The law of the state in which 

a § 1983 action is brought provides the appropriate statute 

of limitations. Bauers v. City of Lincoln, 245 Neb. 632, 514 

N.W.2d 625 (1994). “[F]or purposes of selecting one statute of 

limitations, § 1983 actions shall be characterized as personal 

injury actions.” Bauers, 245 Neb. at 646, 514 N.W.2d at 634. 

In Nebraska, § 1983 claims are governed by the statute of 

limitations in Neb. Rev. Stat. § 25-207 (Reissue 2008). See 

Bauers, supra. Section 25-207 requires that actions for an 
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injury to the plaintiff’s rights be filed within 4 years from the 

date on which the action accrued. Bauers, supra.

[19-21] “[A] statute of limitations begins to run as soon 

as the claim accrues.” Alston v. Hormel Foods Corp., 273 

Neb. 422, 425, 730 N.W.2d 376, 381 (2007). Although state 

law determines which statute of limitations applies to § 1983 

claims, “the accrual date of a § 1983 cause of action is a 

question of federal law that is not resolved by reference to 

state law.” See Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct. 

1091, 166 L. Ed. 2d 973 (2007) (emphasis in original). The 

U.S. Supreme Court has stated that a § 1983 claim generally 

accrues “‘when the plaintiff has “a complete and present cause 

of action.”’” See Wallace, 549 U.S. at 388.

[22,23] In order to state a cause of action under 42 U.S.C. 

§ 1983, a plaintiff must allege facts establishing conduct 

by a person acting under color of state law which deprived 

the plaintiff of rights, privileges, or immunities secured by 

the Constitution and laws of the United States. State ex 

rel. Jacob v. Bohn, 271 Neb. 424, 711 N.W.2d 884 (2006). 

Therefore, “[a] § 1983 claim accrues ‘when the plaintiff 

knows or should know that his or her constitutional rights 

have been violated.’” Hileman v. Maze, 367 F.3d 694, 696 

(7th Cir. 2004). See, also, Owens v. Baltimore City State’s 

Attorneys Office, 767 F.3d 379 (4th Cir. 2014); Hillcrest 

Property, LLC v. Pasco County, 754 F.3d 1279 (11th Cir. 

2014); Bishop v. Children’s Center for Developmental, 618 

F.3d 533 (6th Cir. 2010); Gorelik v. Costin, 605 F.3d 118 

(1st Cir. 2010); Douglas v. Noelle, 567 F.3d 1103 (9th Cir. 

2009); Kripp v. Luton, 466 F.3d 1171 (10th Cir. 2006); Price 

v. City of San Antonio, Tex., 431 F.3d 890 (5th Cir. 2005) 

(abrogated on other grounds as recognized by Vidrine v. U.S., 

No. 6:07-1204, 2008 WL 4198547 (W.D. La. Aug. 8, 2008) 

(unpublished opinion)); Sameric Corp. Del., Inc. v. City of 

Philadelphia, 142 F.3d 582 (3d Cir. 1998); Veal v. Geraci, 23 

F.3d 722 (2d Cir. 1994). “‘[The] plaintiff is deemed to know 

or have reason to know at the time of the act itself and not 

at the point that the harmful consequences are felt.’” Gorelik, 

605 F.3d at 122.
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In the instant case, the plaintiffs did not allege specifically 

when or how each of the six employees acted in a manner that 

violated the plaintiffs’ rights. But the sole basis for the plaintiffs’ claims against each of the six employees was his or her 

involvement in Ashley, Anthony Jr., and Ali’s juvenile case 

as a caseworker, case management supervisor, or administrator. Consequently, the plaintiffs’ claims against each of the 

six employees in their individual capacities accrued at some 

time during his or her individual involvement with the juvenile case.

The complaint sets forth when each employee was a caseworker, case management supervisor, or administrator for 

Ashley, Anthony Jr., and Ali’s case:

11. During the course of the case with [DHHS], the 

. . . family had the following case managers/case management supervisors:

a. Jennifer Holt in 2000

b. Kee-Sha Adams-Parks/David Hamme[r] in 2001

c. Abby Bowers/Sandy Thompson/Tonya Beckenhauer 

in 2001

. . . .

f. Jessica Hatfield/Sandy Thompson in 2002

g. Charlie Bennett/Sandy Thompson in 2002, 2003 

and 2004

. . . .

87. In July, 2005, [the plaintiffs] meet with [DHHS] 

administrators, Todd Reckling and Chris Peterson and 

other [DHHS] staff. The [plaintiffs] are told to “drop 

everything” and come to this meeting. The administrators 

apologize to [the plaintiffs] for the fact that their case had 

been going on so long. The administrators tell the [plaintiffs] that they have to act quickly to reunify the children 

because the Lancaster County Attorney will soon file a 

motion to terminate parental rights.

The plaintiffs did not allege that the six employees were 

involved with Ashley, Anthony Jr., and Ali’s juvenile case or 

had contact with the plaintiffs at any other time.

A § 1983 claim generally accrues when a person knows 

or has reason to know that he or she has been injured. See 
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Gorelik v. Costin, 605 F.3d 118 (1st Cir. 2010). Generally, a 

person “‘is deemed to know or have reason to know at the 

time of the act itself.’” See id. at 122. The plaintiffs did not 

claim a failure to discover the alleged injurious conduct by the 

six employees. And the plaintiffs did not allege that at the time 

each of the six employees engaged in conduct which allegedly 

violated the plaintiffs’ rights, they did not know or have reason to know of their injuries. Accordingly, on the face of the 

plaintiffs’ complaint, the plaintiffs’ claim against Holt accrued 

no later than 2000, because the complaint did not allege that 

she engaged in conduct which injured the plaintiffs after 2000. 

Similarly, the plaintiffs’ claim against Hammer accrued no 

later than 2001, because the plaintiffs did not allege that he 

acted in a manner that injured the plaintiffs after 2001. The 

plaintiffs’ claim against Hatfield accrued no later than 2002, 

because it was not alleged that she engaged in conduct which 

injured the plaintiffs after 2002. The plaintiffs’ claim against 

Thompson accrued no later than 2004, because the complaint 

contained no allegations of conduct by her which injured 

the plaintiffs after 2004. And the plaintiffs’ claims against 

Reckling and Peterson accrued no later than 2005, because the 

plaintiffs did not allege that Reckling and Peterson engaged in 

conduct which injured the plaintiffs after 2005.

Under the applicable statute of limitations, the plaintiffs 

had 4 years from the date of accrual of each claim to bring an 

action or until 2004, 2005, 2006, 2008, and 2009, respectively. 

The plaintiffs did not file their complaint until March 2011. 

Therefore, the face of the plaintiffs’ complaint shows that the 

claims against the six employees were time barred.

(b) Complaint Failed to Allege 

Facts Which Show Claims 

Are Not Barred

Because the plaintiffs’ complaint on its face showed that 

their claims against the six employees were time barred, the 

plaintiffs had the burden of alleging “facts to avoid the bar 

of the statute of limitations.” See Lindner v. Kindig, 285 Neb. 

386, 393, 826 N.W.2d 868, 874 (2013). The plaintiffs did not 

do so.
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The plaintiffs argue that the continuing tort doctrine applies 

to make their claims against the six employees timely. They 

assert that there was a “continuing pattern of tortious conduct” 

and that as a result, their claims “did not accrue until late 

2009,” when Ashley, Anthony Jr., and Ali’s juvenile case was 

finally closed. See brief for appellants at 24. This argument 

lacks merit.

[24,25] The plaintiffs misunderstand the continuing tort 

doctrine. In Nebraska, the continuing tort doctrine does not 

delay when claims based on continuing torts accrue. See 

Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 

(2007). “[T]he ‘continuing tort doctrine’ is not a separate doctrine, or an exception to the statute of limitations, as much as 

it is a straightforward application of the statute of limitations: 

It simply allows claims to the extent that they accrue within 

the limitations period.” Id. at 429-30, 730 N.W.2d at 383. As 

such, “a claim for damages caused by a continuing tort can 

be maintained for injuries caused by conduct occurring within 

the statutory limitations period.” See id. at 429, 730 N.W.2d 

at 383. A claim for damages caused by conduct occurring outside the statutory period preceding the lawsuit will be barred. 

See id.

Applying the continuing tort doctrine to the plaintiffs’ complaint does not make their claims against the six employees 

timely. Rather, it highlights that their claims against the six 

employees were barred, because they were based on conduct 

that occurred more than 4 years before the action was commenced in March 2011. The 4-year statutory period preceding 

their lawsuit commenced in March 2007. As explained above, 

the complaint shows on its face that none of the six employees engaged in conduct which allegedly injured the plaintiffs 

after 2005. Therefore, the claims against the six employees 

were based on conduct occurring outside the limitations 

period preceding the instant lawsuit and are consequently 

time barred.

It may be reasonable to infer that the “ill effects” of the 

actions taken by the six employees were felt until 2009, 

when the juvenile case was finally closed. But the continuing tort doctrine “requires that a tortious act—not simply the 
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continuing ill effects of prior tortious acts—fall within the 

limitation[s] period.” See Alston, 273 Neb. at 426, 730 N.W.2d 

at 381. In the absence of any allegations that the six employees 

engaged in tortious conduct during the limitations period preceding the plaintiffs’ lawsuit, the continuing tort doctrine does 

not give the plaintiffs any relief.

The plaintiffs argue that until 2009, they were “subjected 

to a continuing, cumulative pattern of tortious conduct” by 

virtue of the “conduct on the part of the Defendants.” See 

brief for appellants at 23. Even assuming, without deciding, 

that there may have been other DHHS employees that engaged 

in a pattern of tortious conduct within the 4-year limitations 

period preceding the plaintiffs’ lawsuit, such conduct cannot 

be attributed to the six employees. The face of the plaintiffs’ 

complaint does not show that any of the six employees worked 

on Ashley, Anthony Jr., and Ali’s case during the limitations period.

The plaintiffs did not allege facts in their complaint which 

would avoid the bar of the statute of limitations. They did not 

allege a pattern of tortious behavior by the six employees that 

continued within the limitations period. And the plaintiffs did 

not allege facts which indicate that they did not or could not 

have discovered the alleged wrongs when they accrued.

(c) Conclusion as to Statute 

of Limitations

The face of the plaintiffs’ complaint alleged facts which 

show that the claims against the six employees in their individual capacities were barred by the applicable statute of 

limitations. The plaintiffs’ complaint did not allege facts which 

would avoid this bar. Therefore, the district court did not err in 

sustaining the motion to dismiss filed by the six employees in 

their individual capacities.

4. Plaintiffs’ Remaining

Assignments of Error

The district court correctly determined that DHHS and the 

DHHS employees in their official capacities had sovereign 

immunity. It correctly determined that the guardian ad litem 
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was entitled to absolute immunity for conduct within the scope 

of his role in the juvenile proceedings. It correctly dismissed 

the six employees in their individual capacities because the 

plaintiffs’ claims against them were barred by the statute of 

limitations. The remaining 12 DHHS employees sued by the 

plaintiffs were not parties to this action. Therefore, there are 

no defendants remaining in the lawsuit that could be found 

liable to the plaintiffs. As such, we do not need to address the 

remaining assignments of error.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court that dismissed the plaintiffs’ complaint.

Affirmed.

Cassel, J., not participating.