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Roe v. State

United States District Court, D. Nebraska

October 20, 2015

HENRY ROE, Plaintiff,


LYLE E. STROM, Senior Judge United States District Court

This matter is before the Court on defendants’ motion to dismiss plaintiff’s amended complaint (Filing No. 11) for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Filing No. 12). The matter has been fully briefed by the parties. See Filing Nos. 13, 16, and 17. After review of the motion, briefs, and applicable law, the Court finds as follows.


On December 23, 2013, the plaintiff, Henry Roe[1](“plaintiff” or “Roe”) submitted his claim to the State Claims Board in accordance with Neb. Rev. Stat. § 81-8, 212 (Filing No. 11 at ¶ 3). The State of Nebraska did not make a final disposition of plaintiff’s claim within the statutorily required time. (Id.) Plaintiff then filed suit in the District Court of Lancaster County, Nebraska (Filing No. 1 at 1). On July 8, 2015, defendants, the State of Nebraska, and John and Jane Doe(s) 1 through 10 (“defendants”) removed the action to this Court. See Filing No. 1. On August 18, 2015, the plaintiff amended his complaint (Filing No. 11).

Plaintiff’s complaint alleges four causes of action against the State of Nebraska and unnamed “employees and agents” of the State “John and Jane Doe(s) 1 through 10." See Filing No. 11. Although unclear from the face of the complaint, plaintiff’s claims are based on his wrongful identification and enlistment on the Nebraska State Patrol Sex Offender Registry website and the repercussions flowing therefrom. See Filing No. 9, Exs. 1 and 2.

Liberally construed, plaintiff’s first cause of action alleges defendants’ negligence when “Henry Roe was given an incorrect classification by the State of Nebraska . . . . Plaintiff asserts that the manner in which the State supervised his classification, and actions related thereto . . . were negligent and lacking in due care. Such lack of supervision of action(s), essentially caused damage . . . .” (Filing No. 11 at ¶ 4). Plaintiff’s second cause of action alleges a taking under Article I, Section 21 of the Nebraska Constitution. Plaintiff bases his third cause of action on Neb. Rev. Stat. § 76-705 alleging defendants “damaged the property of Plaintiff, for public use, without instituting condemnation proceedings.” (Id. at ¶ 17). Finally, plaintiff’s fourth cause of action “is brought pursuant to Title 42 U.S.C. § 1983 . . . in that this action seeks to redress the deprivation, under color of state law, of rights secured to the Plaintiff, by the First, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States and the laws of the United States.” (Id. at ¶ 19).


A. Fed.R.Civ.P. 12(b)(1)

Suits are subject to dismissal when the court lacks subject matter jurisdiction to hear the matter. Fed.R.Civ.P. 12(b)(1). The party asserting jurisdiction bears the burden of proving that jurisdiction is proper. Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir. 2010). The Court “has the authority to dismiss an action for lack of subject matter jurisdiction on any one of three separate bases: ‘(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)); see also Jessie v. Potter, 516 F.3d 709, 712 (8th Cir. 2008) (“Motions to dismiss for lack of subject-matter jurisdiction can be decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like summary judgment motion; and on disputed facts”). “The district court has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1).” Osborn v. United States, 918 F.2d 724, 728 n.4 (8th Cir. 1990) (citing Land v. Dollar, 330 U.S. 731, 735 & n.4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Satz v. ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir. 1980)).

B. Fed.R.Civ.P. 12(b)(6)

Determining whether a complaint states a plausible claim for relief is “a context-specific task” that requires a court “to draw on its judicial experience and common sense.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Federal Rule of Civil Procedure 8 requires a complaint to present “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 677-78) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

When considering a motion to dismiss under Rule 12(b)(6), well-pled allegations are considered to be true and are viewed in the light most favorable to the plaintiff. Braden, 588 F.3d at 591, 595. In viewing the facts in the light most favorable to the plaintiff, the Court must determine whether the complaint states any valid claim for relief. Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978). Recitations of elements of a cause of action with mere conclusory statements fail to meet Rule 8’s pleading requirements. Iqbal, 556 U.S. at 678. However, plaintiffs may use legal conclusions to provide the framework of a complaint, so long as factual allegations support those legal conclusions. Id. at 678-79. Thus, a dismissal is likely “only in the unusual case in which a plaintiff includes allegations which show on the face of the complaint that there is some insuperable bar to relief.” Jackson Sawmill, 589 F.2d at 306.


I. Negligence

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