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D.M. v. STATE

Cite as 23 Neb. App. 17

D.M., appellant, v. State of Nebraska

et al., appellees.

___ N.W.2d ___

Filed July 14, 2015. No. A-14-376.

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

motion to dismiss is reviewed de novo.

2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing 

an order dismissing a complaint, the appellate court accepts as true 

all facts which are well pled and the proper and reasonable inferences 

of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion.

3. Tort Claims Act. Whether the allegations made by a plaintiff present a 

claim that is precluded by exemptions set forth in the State Tort Claims 

Act is a question of law.

4. Tort Claims Act: Appeal and Error. An appellate court has an obligation to reach its conclusion on whether a claim is precluded by exemptions set forth in the State Tort Claims Act independent from the conclusion reached by the trial court.

5. Constitutional Law: States: Immunity. The immunity of states from 

suit is a fundamental aspect of the sovereignty which the states enjoyed 

before the ratification of the Constitution and which they retain today.

6. Actions: Immunity. A suit against a state agency is a suit against the 

State and is subject to sovereign immunity.

7. ____: ____. A suit generally may not be maintained directly against an 

agency or department of the State, unless the State has waived its sovereign immunity.

8. Statutes: Immunity. Statutes authorizing suits against the State are 

to be strictly construed because such statutes are in derogation of the 

State’s sovereign immunity.

9. Immunity: Waiver. Waiver of sovereign immunity will be found only 

where stated by the most express language or by such overwhelming 
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implications from the text as will leave no room for any other reasonable construction.

10. Immunity: Waiver: Presumptions. There is a presumption against 

waiver of sovereign immunity.

11. Public Officers and Employees: Immunity. Sovereign immunity has 

potential applicability to suits brought against state officials in their 

official capacities.

12. 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.

13. Actions: Parties: Public Officers and Employees: Liability: Damages.

In an action for the recovery of money, the State is the real party in 

interest because a judgment against a public servant in his official 

capacity imposes liability on the entity that he represents.

14. Actions: Public Officers and Employees: Immunity: Waiver: 

Damages. Unless waived, sovereign immunity bars a claim for money 

even if the plaintiff has named individual state officials as nominal defendants.

15. Tort Claims Act: Immunity: Waiver. The State Tort Claims Act waives 

the State’s sovereign immunity with respect to certain, but not all, types 

of tort actions.

16. Tort Claims Act: Public Officers and Employees: Immunity. The 

State Tort Claims Act allows lawsuits against the State and public officials for certain tortious conduct, but not all.

17. Actions: Immunity: Waiver. In the absence of a waiver, sovereign 

immunity bars all suits against the State and state agencies, regardless 

of the relief sought.

18. Tort Claims Act: Immunity: Waiver: Public Officers and Employees.

Although a state employee or officer may be allegedly sued individually, if he or she is acting within the scope of employment or office, 

the State Tort Claims Act still applies and provides immunity, unless 

such has been waived.

19. Tort Claims Act: Immunity: Negligence: Liability: Waiver. The State 

Tort Claims Act waives the State’s sovereign immunity for tort claims 

against the State for money only on account of damage to or loss of 

property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the state, while 

acting within the scope of his or her office or employment, under circumstances in which the State, if a private person, would be liable to the 

claimant for such damage, loss, injury, or death.

20. Tort Claims Act: Immunity: Waiver. Among the claims for which the 

State has not waived its sovereign immunity are claims arising out of 
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assault, battery, false imprisonment, false arrest, malicious prosecution, 

abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights, commonly referred to as the intentional 

tort exception.

21. Public Officers and Employees: Immunity: Negligence. To determine whether a claim arises from an intentional assault or battery and 

is therefore barred by sovereign immunity pursuant to the intentional 

tort exception, a court must ascertain whether the alleged negligence 

was the breach of a duty to select or supervise the employee-tort-feasor 

or the breach of some separate duty independent from the employment relation.

22. ____: ____: ____. If the allegation is that the government was negligent 

in the supervision or selection of the employee and that the intentional 

tort occurred as a result, the intentional tort exception bars the claim; 

otherwise, litigants could avoid the substance of the exception because it 

is likely that many, if not all, intentional torts of government employees 

plausibly could be ascribed to the negligence of the tort-feasor’s supervisors and would frustrate the purposes of the exception.

23. 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.

24. Public Officers and Employees: Immunity. A plaintiff cannot avoid 

the reach of the intentional tort exception by framing his or her complaint in terms of negligent failure to prevent the assault and battery. The 

exception does not merely bar claims for assault or battery; in sweeping 

language it excludes any claim arising out of assault or battery.

25. Tort Claims Act: Immunity: Waiver: Pleadings: Proof. Exceptions 

found in Neb. Rev. Stat. § 81-8,219 (Supp. 2011) to the general waiver 

of tort immunity are matters of defense which must be pled and proved 

by the State.

26. Actions: Immunity: Waiver. Nebraska has not waived its sovereign immunity with regard to 42 U.S.C. § 1983 (2012) suits brought 

against it.

27. Constitutional Law: Immunity: Public Officers and Employees. The 

enactment of 42 U.S.C. § 1983 (2012) did not abrogate the State’s 11th 

Amendment immunity by creating a remedy against the State.

28. Statutes: Constitutional Law: Immunity: Waiver. Neb. Rev. Stat. 

§ 20-148 (Reissue 2012) is a procedural statute designed to allow 

plaintiffs to bypass administrative procedures in discrimination 

actions against private employers; it does not operate to waive sovereign immunity.
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29. Public Officers and Employees: Immunity. Sovereign immunity does 

not apply when state officials are sued in their individual capacities—

that is, when a suit seeks to hold state officials personally liable.

30. Actions: Parties: Public Officers and Employees: Waiver. Sovereign 

immunity does not apply even when state officials are sued in their 

individual capacities for acts taken within the scope of their duties and 

authority as state officials.

31. Public Officers and Employees: Liability. Personal-capacity suits seek 

to impose individual liability upon a government officer for actions 

taken under color of state law.

32. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat. 

§ 25-217 (Reissue 2008) provides that a plaintiff has 6 months from the 

date the complaint was filed to serve the defendants, at which point the 

complaint shall be dismissed without prejudice.

33. Immunity. Qualified immunity is an affirmative defense which must be 

affirmatively pleaded.

34. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

35. Constitutional Law: Public Officers and Employees: Liability. The 

standard by which a supervisor is held liable under 42 U.S.C. § 1983 

(2012) in his or her individual capacity for the actions of a subordinate 

is extremely rigorous.

36. Constitutional Law: Public Officers and Employees: Liability: 

Proof. To hold a supervisor liable under 42 U.S.C. § 1983 (2012), the 

plaintiff must establish that the supervisor personally participated in 

the unconstitutional conduct or was otherwise the moving force of the 

violation by authorizing, approving, or knowingly acquiescing in the 

unconstitutional conduct.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed in part, and in part reversed 

and remanded for further proceedings.

Julie A. Jorgensen, of Morrow, Willnauer, Klosterman & 

Church, L.L.C., for appellant.

Jon Bruning, Attorney General, and David A. Lopez for 

appellee.

Irwin, Riedmann, and Bishop, Judges.
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Bishop, Judge.

INTRODUCTION

D.M., previously an inmate at the Omaha Correctional 

Center (OCC), filed a complaint against the State of Nebraska 

and the Nebraska Department of Correctional Services (DCS) 

and against Robert P. Houston, the director of the DCS; John 

Doe #1 (Doe), an investigator for the DCS; Jim Brown, a unit 

manager at the OCC; and Anthony Hansen, a prison guard at 

the OCC, all in their individual and official capacities. D.M. 

alleged that he was sexually assaulted by Hansen while D.M. 

was incarcerated at the OCC and that when D.M. reported 

the sexual assault, he was placed in disciplinary segregation 

for over 30 days. D.M.’s complaint contained several tort 

and constitutional violation claims against the above-named 

defendants; pursuant to a motion to dismiss filed by the State, 

the Douglas County District Court dismissed D.M.’s entire 

complaint with prejudice, concluding that all of his claims 

were barred by sovereign immunity. We affirm in part, and in 

part reverse and remand for further proceedings.

BACKGROUND

D.M. filed a complaint on December 10, 2013, alleging the 

following facts:

D.M. was admitted as an inmate to the OCC in December 

2011, with an expectation of parole in February 2012. On 

December 10, 2011, Hansen approached D.M. in the cafeteria with the proposition to meet in the chapel to engage in 

sexual activity. D.M. attempted to avoid and deflect Hansen’s 

sexual advances. Hansen later approached D.M. and advised 

that there were cameras in the chapel so they should meet in 

the commons area of the OCC. After D.M. again attempted 

to deflect Hansen’s sexual advances, Hansen spoke to D.M. 

regarding his parole date, which D.M. took as a threat 

to his future release based on previous encounters with 

Hansen where he had advised D.M. that if he did not comply 

with Hansen’s sexual requests, Hansen would cause D.M. 
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or his friends to lose “good time” or be placed in disciplinary segregation.

D.M. reluctantly met with Hansen in the commons area 

based on his threats, at which point Hansen shoved D.M. into 

a wall and forcibly kissed him, pushed him down to his knees, 

and ejaculated into D.M.’s mouth. D.M. preserved Hansen’s 

bodily fluids in a napkin. D.M. then orally reported the incident to Brown, D.M.’s unit manager. D.M. also filled out a 

formal complaint and requested a grievance form.

D.M. alleged that immediately after the incident and as a 

result of his reporting Hansen’s sexual assault, he was placed 

in disciplinary segregation, where he had limited telephone 

privileges and no contact with other inmates. Prison guards 

were instructed not to converse with him while he was in 

segregation, and D.M. was instructed by representatives of the 

defendants not to speak to anyone about the sexual assault. 

D.M. was subjected to disciplinary segregation for over 30 

days while the investigation was conducted. D.M. requested 

that he be “transferred to another medium security facility, but 

was told there was no room at any other facility.”

D.M. alleged that Doe visited D.M. on numerous occasions, 

advising him that he would get more jail time for lying and 

that he was “ruining” Hansen’s life. During the investigation, 

Hansen was permitted to work for a period of time and subsequently was given paid leave while D.M. remained in solitary confinement.

DNA testing confirmed that the bodily fluids collected by 

D.M. were Hansen’s; Hansen subsequently pled guilty to sexual assault. When the investigation was complete, D.M. alleges 

he was “transferred from a minimum security facility to a 

maximum security facility.” (We note that D.M.’s complaint 

is inconsistent as to whether he was in a minimum or medium 

security facility at the time of the assault.)

During the investigation, D.M. repeatedly requested counseling services; after “numerous” requests, and at the conclusion of the investigation, D.M. was given two therapy 

sessions after his transfer. D.M. continued to see a therapist 
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subsequent to his release; suffers from intimacy issues, depression, severe anxiety, and severe emotional distress; has been 

prescribed medication; and is expected to need therapy and 

psychiatric treatment.

D.M. alleged nine causes of action arising out of the above 

facts: (1) negligent hiring/supervising of Hansen, (2) failure 

to protect, (3) retaliation, (4) respondeat superior, (5) denial 

of equal protection, (6) cruel and unusual punishment, (7) 

intentional infliction of emotional distress as to Hansen, (8) 

intentional infliction of emotional distress as to all the defendants, and (9) negligent infliction of emotional distress as to all 

the defendants. D.M. sought damages, reasonable attorney fees, 

permission to assert a claim for punitive damages, and further 

relief as may be ordered. D.M. invoked jurisdiction pursuant to 

the State Tort Claims Act (STCA), Neb. Rev. Stat. §§ 81-8,209 

to 81-8,235 (Reissue 2008, Cum. Supp. 2010 & Supp. 2011); 

Neb. Rev. Stat. § 20-148 (Reissue 2012); the civil rights laws 

of the United States, including 42 U.S.C. § 1983 (2012); and 

the Nebraska Constitution.

On January 30, 2014, Houston, in both his official and individual capacities; the State; the DCS; and Doe, Brown, and 

Hansen, in their official capacities only, filed a motion to dismiss pursuant to Neb. Ct. R. of Pldg. § 6-1112(b)(6) for failure 

to state a claim, and also that “the Defendants are protected by 

sovereign immunity.”

A hearing on the motion was held on February 25, 2014. Our 

record does not contain the bill of exceptions from this hearing. 

The court entered an order on March 31. The court found:

[T]he alleged rape of [D.M.] by . . . Hanson [sic] was 

an assault as [are] all of the causes of action set forth in 

his complaint and, thus, the intentional tort exception of 

[§] 81-8,219(4) applies and bars [D.M.’s] action against 

the Defendants. The Court further finds that the complaint cannot be amended to state a cause of action and, 

therefore, that [D.M.’s] complaint should be dismissed 

with prejudice.
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D.M. filed a “Motion for Reconsideration” on April 11, 

2014. He requested that the court reconsider its dismissal of 

all causes of action against all the defendants because several of his claims were based on retaliation for reporting the 

assault and because several claims were brought against “State 

actors” in their individual capacities under Nebraska’s civil 

rights statute and 42 U.S.C. § 1983. He further argued that 

his claims under § 1983 should not be affected by state law 

immunity because it is preempted by federal law. The court 

overruled D.M.’s motion on April 29.

D.M. timely filed this appeal.

ASSIGNMENTS OF ERROR

D.M. assigns seven errors on appeal, which we summarize 

as follows: The district court erred in dismissing his entire 

complaint with prejudice, without leave to amend, based on 

its conclusion that all of his claims were barred by sovereign immunity.

STANDARD OF REVIEW

[1,2] A district court’s grant of a motion to dismiss is 

reviewed de novo. Brothers v. Kimball Cty. Hosp., 289 Neb. 

879, 857 N.W.2d 789 (2015). When reviewing an order dismissing a complaint, the appellate court accepts as true all facts 

which are well pled and the proper and reasonable inferences 

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

plaintiff’s conclusion. Id.

[3,4] Whether the allegations made by a plaintiff present a 

claim that is precluded by exemptions set forth in the STCA 

is a question of law. Hall v. County of Lancaster, 287 Neb. 

969, 846 N.W.2d 107 (2014). An appellate court has an obligation to reach its conclusion on whether a claim is precluded 

by exemptions set forth in the STCA independent from the 

conclusion reached by the trial court. See Hall v. County of 

Lancaster, supra.
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ANALYSIS

D.M. filed tort and constitutional claims against the State 

and the DCS and against Houston, Doe, Brown, and Hansen, 

in their individual and official capacities, seeking monetary 

damages. The district court dismissed D.M.’s claims against 

all the defendants on the basis of sovereign immunity, concluding that all his asserted claims arose from the sexual 

assault and that sovereign immunity is not waived for claims 

arising out of such an intentional tort. However, D.M.’s 

complaint asserted two distinct set of facts: (1) the assault 

and (2) D.M.’s reporting of the assault and the retaliatory 

conduct of various defendants in response to his report. 

Additionally, besides the various tort claims alleged by D.M., 

he also asserted constitutional and civil rights claims, including First Amendment retaliation, denial of equal protection 

based upon his disciplinary segregation upon reporting, and 

Eighth Amendment claims related to the assault and his treatment after reporting.

[5-10] We begin by reviewing the general principles of sovereign immunity upon which the district court relied to dismiss 

all claims against all the defendants. The immunity of states 

from suit is a fundamental aspect of the sovereignty which 

the states enjoyed before the ratification of the Constitution 

and which they retain today. SID No. 1 v. Adamy, 289 Neb. 

913, 858 N.W.2d 168 (2015). A suit against a state agency is 

a suit against the State and is subject to sovereign immunity. 

Anthony K. v. Nebraska Dept. of Health & Human Servs., 

289 Neb. 540, 855 N.W.2d 788 (2014) (Anthony II). A suit 

generally may not be maintained directly against an agency 

or department of the State, unless the State has waived its 

sovereign immunity. Id. Statutes authorizing suits against the 

State are to be strictly construed because such statutes are in 

derogation of the State’s sovereign immunity. SID No. 1 v. 

Adamy, supra. Waiver of sovereign immunity will be found 

only where stated by the most express language or by such 

overwhelming implications from the text as will leave no 
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room for any other reasonable construction. Id. This principle 

has been said to create a presumption against waiver. Dean v. 

State, 288 Neb. 530, 849 N.W.2d 138 (2014).

[11-14] Sovereign immunity has potential applicability to 

suits brought against state officials in their official capacities. See Anthony II, supra. Official-capacity suits generally 

represent only another way of pleading an action against an 

entity of which an officer is an agent. Id. In an action for 

the recovery of money, the State is the real party in interest 

because a judgment against a public servant in his official 

capacity imposes liability on the entity that he represents. See 

id. Unless waived, sovereign immunity bars a claim for money 

even if the plaintiff has named individual state officials as 

nominal defendants. See id.

[15,16] The STCA waives the State’s sovereign immunity 

with respect to certain, but not all, types of tort actions. See 

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

other words, the STCA allows lawsuits against the State and 

public officials for certain tortious conduct, but not all. We 

first consider D.M.’s tort claims against the various defendants, followed by a review of his constitutional claims.

Tort Claims Against State, DCS, 

and Named Individuals

[17,18] In the absence of a waiver, sovereign immunity 

bars all suits against the State and state agencies, regardless of the relief sought. See Anthony K. v. State, 289 Neb. 

523, 855 N.W.2d 802 (2014) (Anthony I). The DCS is a state 

agency. See Perryman v. Nebraska Dept. of Corr. Servs., 

253 Neb. 66, 568 N.W.2d 241 (1997), disapproved on other 

grounds, Johnson v. Clarke, 258 Neb. 316, 603 N.W.2d 373 

(1999). Sovereign immunity also has potential applicability 

to suits brought against state officials in their official capacities; official-capacity suits generally represent only another 

way of pleading an action against an entity of which an 

officer is an agent. See Anthony II, supra. In an action for 

the recovery of money, the State is the real party in interest 
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because a judgment against a public servant in his official 

capacity imposes liability on the entity that he represents. 

See id. Unless waived, sovereign immunity bars a claim for 

money even if the plaintiff has named individual state officials as nominal defendants. See id. Further, although a state 

employee or officer may be allegedly sued individually, if he 

or she is acting within the scope of employment or office, 

the STCA still applies and provides immunity, unless such 

has been waived. Bojanski v. Foley, 18 Neb. App. 929, 798 

N.W.2d 134 (2011).

D.M.’s complaint contains tort claims against Houston, Doe, 

and Brown, in both their official and individual capacities. 

However, while D.M. purports to have brought his tort claims 

against those individuals in their individual capacities, in looking at D.M.’s complaint, it is clear that his tort allegations on 

the part of Houston, Doe, and Brown occurred while they were 

acting within the scope of their employment with the DCS, 

and therefore, the tort claims against those defendants all fall 

within the STCA. See Bojanski v. Foley, supra.

[19,20] As previously noted, the STCA waives the State’s 

sovereign immunity with respect to certain, but not all, types 

of tort actions. Johnson v. State, supra. The STCA waives the 

State’s sovereign immunity for tort claims against the State 

for money only on account of damage to or loss of property or on account of personal injury or death caused by the 

negligent or wrongful act or omission of any employee of 

the state, while acting within the scope of his or her office 

or employment, under circumstances in which the State, if 

a private person, would be liable to the claimant for such 

damage, loss, injury, or death. See § 81-8,210(4). However, 

the State’s sovereign immunity is not waived with respect 

to the types of claims listed in § 81-8,219. Johnson v. State, 

270 Neb. 316, 700 N.W.2d 620 (2005). Among the claims 

for which sovereign immunity is not waived are claims “arising out of assault, battery, false imprisonment, false arrest, 

malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 
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§ 81-8,219(4). This subsection is commonly referred to as the 

“intentional tort exception.” See Britton v. City of Crawford, 

282 Neb. 374, 803 N.W.2d 508 (2011). The district court 

in the instant case concluded that all of D.M.’s claims were 

barred by this exception.

[21-23] To determine whether a claim arises from an intentional assault or battery and is therefore barred by sovereign 

immunity pursuant to the intentional tort exception, a court 

must ascertain whether the alleged negligence was the breach 

of a duty to select or supervise the employee-tort-feasor or the 

breach of some separate duty independent from the employment relation. Johnson v. State, supra (quoting Sheridan v. 

United States, 487 U.S. 392, 108 S. Ct. 2449, 101 L. Ed. 2d 

352 (1988) (Kennedy, J., concurring in judgment)). If the 

allegation is that the government was negligent in the supervision or selection of the employee and that the intentional tort 

occurred as a result, the intentional tort exception bars the 

claim. Id. Otherwise, litigants could avoid the substance of the 

exception because it is likely that many, if not all, intentional 

torts of government employees plausibly could be ascribed to 

the negligence of the tort-feasor’s supervisors. Id. To allow 

such claims would frustrate the purposes of the exception. 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. Stick v. City of Omaha, 289 Neb. 752, 857 

N.W.2d 561 (2015).

In Johnson v. State, supra, a female inmate at the OCC 

alleged that she was sexually assaulted by an employee of 

the DCS assigned to work at the OCC. She filed suit against 

the State, the DCS, and the OCC, alleging two theories of 

recovery: negligence and intentional infliction of emotional 

distress. With respect to her negligence claims, the female 

inmate alleged the defendants were negligent in violating state 

jail standards with respect to the housing of female inmates, 

failing to properly hire and supervise its employees, and failing to properly discipline the employee who perpetrated the 
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sexual assault. Our Supreme Court concluded that each of 

the above causes of action was based upon the employment 

relationship between her alleged assailant and the defendants 

and that thus, the intentional tort exception of § 81-8,219(4) 

applied to bar all her causes of action.

[24] D.M. does not dispute that his claims for negligent 

hiring/supervising and respondeat superior are barred by sovereign immunity, because both tort claims arise out of the 

intentional sexual assault, for which the State has not waived 

its sovereign immunity. See § 81-8,219(4). See, also, Johnson 

v. State, 270 Neb. 316, 700 N.W.2d 620 (2005). D.M.’s cause 

of action for failure to protect alleges that the “Defendants” 

breached their duty to protect him from the sexual assault; 

however, such a tort claim, although framed as an allegation of 

negligence, nevertheless is a claim “arising out of assault [or] 

battery.” § 81-8,219(4). Our Supreme Court has stated:

“‘[A plaintiff] cannot avoid the reach of [the intentional tort exception] by framing [his or] her complaint 

in terms of negligent failure to prevent the assault and 

battery. [The exception] does not merely bar claims for

assault or battery; in sweeping language it excludes any 

claim arising out of assault or battery. . . .’”

Britton v. City of Crawford, 282 Neb. 374, 384-85, 803 

N.W.2d 508, 517 (2011) (emphasis in original) (quoting 

Johnson v. State, supra). This provision covers claims that 

sound in negligence but stem from a battery committed by 

a government employee. See Britton v. City of Crawford, 

supra. Accordingly, D.M.’s tort claims for negligent hiring/

supervising, respondeat superior, and failure to protect were 

properly dismissed against the State and the DCS; Houston, 

Doe, and Brown; and Hansen, in his official capacity, on the 

basis of sovereign immunity because such claims arose from 

the sexual assault.

[25] However, D.M.’s claims for intentional and negligent 

infliction of emotional distress differ from the above claims in 

that they are not based on claims of emotional distress resulting from or arising out of the sexual assault; rather, D.M. 
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bases these two claims on his allegations that he was punished 

and retaliated against by different OCC employees for reporting the assault and that he was placed in solitary confinement 

and subjected to threats of legal action or prosecution for 

perjury for making his report. D.M.’s claims in this regard 

therefore do not arise from the assault, but, rather, from his 

reporting of the assault and the resulting retaliatory conduct 

by OCC employees, which conduct was separate and distinct 

from Hansen’s assault of D.M. We therefore conclude that the 

district court erred in dismissing D.M.’s claims for intentional 

and negligent infliction of emotional distress on the basis of 

sovereign immunity, since these claims arose from D.M.’s 

reporting of the assault rather than the assault itself. As our 

record does not reflect that the State raised or argued any 

other exception contained in § 81-8,219 in the district court 

below, our review is limited solely to whether D.M.’s claims 

are barred by the intentional tort exception to the STCA. See 

Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997) (holding that exceptions found in § 81-8,219 to general waiver of 

tort immunity are matters of defense which must be pled and 

proved by State).

Finally, D.M. alleged a separate cause of action against 

Hansen for intentional infliction of emotional distress as a 

result of his sexual assault of D.M. Such a claim against 

Hansen in his individual capacity would clearly not be governed by the STCA, as sexual assault would not fall within 

the scope of Hansen’s employment with the DCS. The district 

court therefore erred in dismissing this claim against Hansen in 

his individual capacity as barred by sovereign immunity.

In sum, we affirm the district court’s dismissal of D.M.’s 

tort claims for negligent hiring/supervising, failure to protect, and respondeat superior against the State and the DCS; 

Houston, Doe, and Brown, in both their individual and official 

capacities; and Hansen, in his official capacity, on the basis 

that such claims arose out of Hansen’s sexual assault and were 

therefore barred by sovereign immunity. See § 81-8,219(4). 
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We further conclude that the district court erred in dismissing D.M.’s claim against Hansen in his individual capacity 

for intentional infliction of emotional distress. Finally, we 

conclude that D.M.’s tort claims for intentional and negligent 

infliction of emotional distress were based on separate wrongful conduct subsequent to D.M.’s report, which conduct did 

not arise out of Hansen’s sexual assault within the meaning 

of § 81-8,219(4), and that the district court therefore erred in 

dismissing those two claims against the above defendants on 

that basis.

Constitutional Claims Against State, 

DCS, and Named Individuals in

Their Official Capacities

D.M.’s complaint contains three constitutional claims for 

which he seeks monetary damages under 42 U.S.C. § 1983 and 

§ 20-148: 1st Amendment retaliation, 5th and 14th Amendment 

equal protection and due process, and 8th Amendment cruel 

and unusual punishment. We conclude that all of his constitutional claims are barred by sovereign immunity against 

the State, the DCS, and the named individuals in their official capacities.

[26-28] Nebraska has not waived its sovereign immunity 

with regard to § 1983 suits brought against it. Anthony I. 

Neither did the enactment of § 1983 abrogate the State’s 11th 

Amendment immunity by creating a remedy against the State. 

Anthony I. Likewise, § 20-148 is a procedural statute designed 

to allow plaintiffs to bypass administrative procedures in discrimination actions against private employers; it does not operate to waive sovereign immunity. See Potter v. Board of 

Regents, 287 Neb. 732, 844 N.W.2d 741 (2014). As such, there 

is no waiver of sovereign immunity by the State with respect 

to D.M.’s constitutional violation claims against the State, the 

DCS, or the named individuals in their official capacities, and 

the district court therefore properly dismissed those claims on 

the basis of sovereign immunity.
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Cite as 23 Neb. App. 17

Constitutional Claims Against

Named Individuals in Their

Individual Capacities

[29-31] The district court dismissed all of D.M.’s constitutional claims under 42 U.S.C. § 1983 against the named individuals—Houston, Doe, Brown, and Hansen—in their individual capacities on the basis that such claims were barred 

by sovereign immunity. However, sovereign immunity does 

not apply when state officials are sued in their individual 

capacities—that is, when a suit seeks to hold state officials 

personally liable. Anthony II. 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. Id. Personal-capacity suits seek to impose individual 

liability upon a government officer for actions taken under 

color of state law. Id. As such, the district court erred when 

it dismissed D.M.’s constitutional claims against the named 

defendants in their individual capacities on the basis of sovereign immunity.

[32] The State claims that this court should nevertheless 

affirm the dismissal of D.M.’s claims against Doe and Brown 

in their individual capacities because “[D.M.] served only 

Houston and Hansen individually.” Brief for appellees at 15. 

At oral argument to this court, the State argued that there was 

“never a live suit” against Brown or Doe in their individual 

capacities, because D.M. did not serve them individually. 

D.M. filed his complaint on December 10, 2013, and the district court dismissed all of his claims, with prejudice, including his claims against all named individuals in their individual 

capacities, on March 31, 2014, approximately 31⁄2 months after 

D.M. filed his complaint. Pursuant to Neb. Rev. Stat. § 25-217 

(Reissue 2008), a plaintiff has 6 months from the date the 

complaint was filed to serve the defendants, at which point 

the complaint shall be dismissed without prejudice. If D.M. 

had not properly served the named defendants individually 
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D.M. v. STATE

Cite as 23 Neb. App. 17

as the State claims on appeal, pursuant to § 25-217, D.M. 

still had 21⁄2 months to effectuate such service. Moreover, our 

record does not reflect the manner in which D.M.’s complaint 

was served, and as such, our record is insufficient to review 

the State’s claimed deficient service.

[33,34] The State also contends that although the trial court 

may have mistakenly dismissed D.M.’s claims under § 1983 

against Houston in his individual capacity upon a finding that 

sovereign immunity barred the claims, this court should nevertheless affirm the district court’s dismissal because Houston 

is shielded by qualified immunity. Qualified immunity is an 

affirmative defense which must be affirmatively pleaded. See 

Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003). It is 

a longstanding rule that we will not consider an issue on appeal 

that was not presented to or passed upon by the trial court. 

Linscott v. Shasteen, 288 Neb. 276, 847 N.W.2d 283 (2014). 

Because the affirmative defense of qualified immunity was not 

raised in any of the pleadings below and was not presented to 

or passed upon by the trial court, we decline to do so for the 

first time on appeal.

[35,36] However, we do agree with the State that D.M. 

has failed to state a constitutional claim pursuant to § 1983 

with respect to Houston in his individual capacity. The standard by which a supervisor is held liable under § 1983 in his 

or her individual capacity for the actions of a subordinate is 

extremely rigorous. See Potter v. Board of Regents, 287 Neb. 

732, 844 N.W.2d 741 (2014). The plaintiff must establish that 

the supervisor personally participated in the unconstitutional 

conduct or was otherwise the moving force of the violation by authorizing, approving, or knowingly acquiescing in 

the unconstitutional conduct. Id. D.M. has alleged no facts 

in his complaint sufficient to establish Houston’s personal 

liability under § 1983, and therefore, the district court did 

not err in dismissing D.M.’s constitutional claims against 

Houston individually.
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D.M. v. STATE

Cite as 23 Neb. App. 17

CONCLUSION

In summary, as to the tort claims, we affirm the district 

court’s dismissal of D.M.’s tort claims for negligent hiring/

supervising, failure to protect, and respondeat superior against 

the State and the DCS; Houston, Doe, and Brown, in both 

their individual and official capacities; and Hansen, in his 

official capacity. We reverse, and remand for further proceedings D.M.’s tort claims for intentional and negligent infliction of emotional distress against the State and the DCS and 

against Houston, Doe, and Brown, because those claims are 

alleged to have arisen out of D.M.’s reporting of the sexual 

assault and not the assault itself. We reverse, and remand for 

further proceedings D.M.’s claim for intentional infliction of 

emotional distress against Hansen.

As to the constitutional claims, we affirm the dismissal 

of D.M.’s constitutional claims against the State, the DCS, 

and the named individuals in their official capacities, and 

against Houston in both his official and individual capacity. We 

reverse, and remand for further proceedings D.M.’s remaining 

constitutional claims against Brown, Doe, and Hansen in their 

individual capacities.

 Affirmed in part, and in part reversed and

remanded for further proceedings.