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Anthony K. v. Nebraska Department of Health and Human Services

Supreme Court of Nebraska

November 21, 2014

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

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Appeal from the District Court for Douglas County: J Russell Derr, Judge.

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

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.

Wright, J. Heavican, C.J., Wright, Connnnolly, Stephan, McCormack, and Miller-Lerman, JJ., and Bishop, Judge.

OPINION

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[289 Neb. 542] 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, 855 N.W.2d 802, 289 Neb. 523, (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

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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.

[289 Neb. 543] II. SCOPE OF REVIEW

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).

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.

[289 Neb. 544] 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

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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 [289 Neb. 545] 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 ...


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