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Davis v. State

Supreme Court of Nebraska

October 6, 2017

Johnnie W. Davis, appellant,
v.
State of Nebraska et al., appellees.

         1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.

         3. Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

         4. Constitutional Law. The determination of constitutional requirements presents a question of law.

         5. Statutes. Statutory interpretation presents a question of law.

         6. Tort Claims Act. Whether a plaintiff's allegations present a claim that is barred by an exception to the State's waiver of tort immunity in a tort claims act presents a question of law.

         7. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8, 209 (Reissue 2014) bars tort claims against the State, its agencies, and its employees unless the State has waived its immunity for the claim.

         8. Statutes. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.

         9. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8, 215 (Reissue 2014), when read in pari materia with Neb. Rev. Stat. § 81-8, 209 (Reissue 2014), operates as a limited waiver of the State's tort immunity, subject to specified exceptions that are set out in Neb. Rev. Stat. § 81-8, 219 (2014).

          [297 Neb. 956] 10. Tort Claims Act: Public Officers and Employees: Immunity: Waiver. The exceptions to the waiver of the State's tort immunity include claims based on the exercise or performance of a discretionary function by a state officer or employee.

         11. __:__:__:__: Under Neb. Rev. Stat. § 81-8, 210 (Reissue 2014), whether a plaintiff has sued a state officer or employee in his or her individual capacity is irrelevant to whether the State Tort Claims Act bars a tort claim against that officer or employee. If an officer or employee was acting within the scope of his or her office or employment and the alleged tortious conduct falls within an exception to the State's waiver of tort immunity, the State Tort Claims Act bars a tort claim against the officer or employee, regardless of the capacity in which he or she was purportedly sued.

         12. Jurisdiction: Appeal and Error. An appellate court has an independent duty to decide jurisdictional issues on appeal, even if the parties have not raised the issue.

         13.__:__: When a trial court lacks the power, that is, jurisdiction, to adjudicate the merits of a claim, an appellate court also lacks the power to adjudicate the merits of the claim.

         14. Actions: Jurisdiction: Immunity. A trial court lacks subject matter jurisdiction over an action against the State unless the State has consented to suit.

         15. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

         16. Courts: Appeal and Error. The doctrine of stare decisis requires that appellate courts adhere to their previous decisions unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so.

         17. __:__: The doctrine of stare decisis is entitled to great weight, but it does not require an appellate court to blindly perpetuate a prior interpretation of the law if it concludes that prior interpretation was clearly incorrect.

         18. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception to the State's waiver of immunity under the State Tort Claims Act is an issue that the State may raise for the first time on appeal and that a court may consider sua sponte.

         19. Tort Claims Act: Appeal and Error. An appellate court has the power to determine whether a plaintiff's allegations, taken as true, show that a tort claim is facially barred by an STCA exception under Neb. Rev. Stat. § 81-8, 219 (Reissue 2014).

         20. False Imprisonment: Words and Phrases. False imprisonment is the unlawful restraint of a person's liberty against his or her will. Any [297 Neb. 957] intentional conduct that results in the placing of a person in a position where he or she cannot exercise his or her will in going where he or she may lawfully go may constitute false imprisonment.

         21. Judgments: Appeal and Error. An appellate court may affirm a lower court's ruling that reaches the correct result, albeit based on different reasoning.

         22. Constitutional Law: Civil Rights: Immunity. States or governmental entities that are considered arms of the State for 11th Amendment purposes are not "persons" that can be sued under 42 U.S.C. § 1983 (2012).

         23.__:__:__: Whether a state entity is an arm of the State and entitled to share its 11th Amendment immunity is a question of federal law.

         24. Judgments: Civil Rights: Immunity. Whether a money judgment against a state entity would be enforceable against the State is the critical consideration under 42 U.S.C. § 1983 (2012) for determining whether the entity is an arm of the State and therefore immune from suit by private persons.

         25. Actions: Immunity. A suit against a state agency is a suit against the State, and both the State and state agencies can assert the State's sovereign immunity against suit.

         26. Constitutional Law: Judgments: Probation and Parole: Civil Rights: Immunity. Because any judgment against the Board of Parole would be a judgment against the State, it is cloaked with the State's 11th Amendment immunity and cannot be named as a defendant in an action brought under 42 U.S.C. § 1983 (2012).

         27. Actions: Public Officers and Employees: Civil Rights: Liability. A state official sued in his or her official capacity is not a person who can be sued under an action brought under 42 U.S.C. § 1983 (2012), unless the plaintiff seeks only prospective relief.

         28. Actions: Parties: Public Officers and Employees: Liability: Damages. When a plaintiff seeks money damages against a state officer or employee in his or her official capacity, the State is the real party in interest, because the officer's liability in that capacity is liability for the state entity that the officer represents.

         29. Actions: Public Officers and Employees: Civil Rights: Immunity: Damages. Under 42 U.S.C. § 1983 (2012), the State's sovereign immunity does not bar a claim for damages against state officials and employees who are sued in their personal capacities.

         30. Actions: Public Officers and Employees: Civil Rights: Liability. To establish personal liability in an action brought under 42 U.S.C. § 1983 (2012), it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.

          [297 Neb. 958] 31. __:__:__: Acting under the color of state law does not mean that a state official or employee must have been complying with state law. Under 42 U.S.C. § 1983 (2012), liability exists as long as the action was taken within the scope of the defendant's official authority, even if the official or employee abused his or her authority.

         32. Actions: Public Officers and Employees: Immunity. State officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law.

         33. Constitutional Law: Due Process. The Due Process Clause of the federal Constitution provides both procedural and substantive protections.

         34. Constitutional Law: Probation and Parole. Parolees have a valuable liberty interest in their continued parole even though it depends upon their compliance with parole conditions. Parole is therefore protected by the 14th Amendment and requires at least minimal procedural protections before a State can terminate it.

         35. Due Process. The touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.

         36. Due Process: Public Officers and Employees. The due process protection in the substantive sense limits what the government may do in both its legislative and its executive capacities. But the criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.

         37. _:. Only the most egregious official conduct can be said to be arbitrary in the constitutional sense. The substantive component of the Due Process Clause is violated by executive action only when it can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.

         38. Due Process: Negligence: Liability. Liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.

         39. Arrests. Normally, when a State holds an individual in custody, the requisite level of conscience-shocking conduct is deliberate indifference, subject to the caveat that the standard is sensibly employed only when actual deliberation is practical.

         40. Constitutional Law: Arrests. A plaintiff states a cognizable constitutional violation under the 8th or 14th Amendment when the plaintiff alleges that a state defendant-who had knowledge of the plaintiff's complaint that he or she was being unlawfully detained and the authority to investigate that complaint-was deliberately indifferent to the

         [297 Neb. 959] plaintiff's liberty interest and the defendant's failure to take action resulted in the plaintiff's continued unlawful detention for more than an insignificant period.

         41. Public Officers and Employees: Immunity: Damages: Words and Phrases. Public officials performing a quasi-judicial function have absolute immunity from damages for acts they commit within the scope of that function. A quasi-judicial function refers to one that is closely related to the judicial process.

         42. Public Officers and Employees: Immunity: Liability. In determining whether to grant quasi-judicial immunity, courts examine the nature of the functions with which a particular official or class of officials has been lawfully entrusted to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.

         43. Probation and Parole. The Board of Parole's mere reliance on evidence presented to it does not change the nature of its function of exercising independent discretion whether to grant, deny, or revoke parole.

         44. Public Officers and Employees: Civil Rights: Immunity: Pleadings. Most executive officials and employees are limited to asserting qualified immunity as an affirmative defense against a personal capacity claim under 42 U.S.C. § 1983 (2012).

         45. Constitutional Law: Public Officers and Employees: Immunity: Damages: Proof. Qualified immunity shields state officials from money damages unless a plaintiff alleges facts that would, if proved, show (1) the official violated a federally guaranteed right and (2) the constitutional or statutory right was clearly established at the time of the challenged conduct.

         46. Actions: Immunity. Because qualified immunity is immunity from suit, a trial court should try to resolve immunity questions at the earliest possible stage in litigation.

         47. Actions: Public Officers and Employees: Immunity: Liability. Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.

         48. Constitutional Law: Public Officers and Employees. Whether a federal right is clearly established presents a question of law. A court must consider whether the law is clearly established as it relates to the particular facts of a case. The unlawfulness of a defendant's conduct must be obvious or apparent in the light of preexisting law. That is, the contours of the right must be sufficiently clear that a reasonable official would understand that his or her conduct violates that right.

         [297 Neb. 960] 49. _: _ . To show a clearly established federal right, the U.S. Supreme Court does not require a case to be directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.

         50. __:__: A federal right can be established by a robust consensus of cases of persuasive authority.

         51. Public Officers and Employees: Negligence: Immunity. Showing that a state defendant was negligent is insufficient to defeat a qualified immunity defense. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.

         52. Actions: Civil Rights: Liability. Vicarious liability is unavailable in an action brought under 42 U.S.C. § 1983 (2012).

         Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed.

          Charles E. Wilbrand and Jeanelle R. Lust, of Knudsen, Berkheimer, Richardson & Endacott, L.L.R, for appellant.

          Douglas J. Peterson, Attorney General, Bijan Koohmaraie, and David A. Lopez for appellees.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.

         I. NATURE OF CASE

         Johnnie W. Davis appeals from the district court's order that dismissed his negligence claim under the State Tort Claims Act (STCA)[1] and his due process and Eighth Amendment claims under 42 U.S.C. § 1983 (2012). Davis alleged that state officials and employees of the Nebraska Board of Parole (Parole Board) and the Department of Correctional Services (Department) were liable for mistakenly concluding that he was subject to a mandatory minimum sentence for a 1995[297 Neb. 961] habitual criminal conviction. Because of this mistake, the Parole Board revoked his parole and reincarcerated him for nearly 2 months before releasing him on parole again. The district court concluded that all of Davis' claims were barred by sovereign immunity, qualified immunity, or pleading deficiencies, and dismissed his complaint against all defendants.

         We overrule Nebraska cases holding that an exception to the State's waiver of immunity for tort claims under the STCA is an affirmative defense that the State must plead and prove. Because the exceptions are jurisdictional in nature, we hold that a court can consider an STCA exception sua sponte and for the first time on appeal. Here, we conclude that the exception for claims of false imprisonment applies, which exception bars Davis' tort claim under the doctrine of sovereign immunity. We further conclude that the court did not err in ruling that the defendants were shielded from Davis' § 1983 action by absolute or qualified immunity.

         II. BACKGROUND

         We glean the historical facts leading up to this action from the allegations in Davis' complaint.[2]

         1. Davis' Arrest, Pleas, and Sentencing

         On May 10, 1995, Davis was charged with 11 different crimes and was alleged to be a habitual offender. In lanuary 1996, under a plea agreement, Davis pled no contest to count I, attempted murder in the second degree, and count II, use of a deadly weapon to commit a felony. The State dismissed the remaining charges. In March, the court determined that Davis was a habitual offender and sentenced him to a term of 20 to 30 years' imprisonment for count I and a term of 10 to 20 years' imprisonment for count II, with the terms to be served consecutively.

          [297 Neb. 962] 2. Changes to Habitual Criminal Sentencing Before June 1995, the habitual criminal statute[3] provided the following:

Whoever has been twice convicted of a crime, sentenced, and committed to prison ... for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal and shall be punished by imprisonment ... for a term of not less than ten nor more than sixty years . . . .[4]

In June 1995, the Legislature amended § 29-2221 to provide a mandatory minimum sentence for habitual criminal convictions:

Whoever has been twice convicted of a crime, sentenced, and committed to prison ... for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal and shall be punished by imprisonment . . . for a mandatory minimum term of ten years and a maximum term of not more than sixty years . . . .[5]

Other mandatory minimums apply if a defendant has been convicted of felonies not at issue here.[6] This amendment became effective in September 1995, [7] after Davis committed his crimes but before he entered his pleas and was sentenced.

         Mandatory minimum sentences carry two consequences that a minimum term sentence comprising the same number of years does not. First, a "person convicted of a felony for which a mandatory minimum sentence is prescribed shall not be eligible for probation."[8] Second, the offender cannot become [297 Neb. 963] eligible for parole until the mandatory minimum is served in full; good time credits can be applied to the maximum term of an indeterminate sentence only after the offender serves the mandatory minimum.[9]

         3. Davis' Release and Reincarceration

         In 2012, Davis was paroled. In 2014, the Department obtained warrants to arrest released prisoners for whom it had miscalculated their release dates. Davis' name was not on that list. But an unknown person later added his name to this list, and a warrant was issued for his arrest. In June, Davis was informed by his parole officer that he needed to turn himself in because his parole eligibility date had been miscalculated. Davis had not violated his parole, and he was employed. Before turning himself in to the Department on June 25, he informed the Department and his parole officer that the mandatory minimum provision did not apply to him and that his parole eligibility date was correct. Neither the Department nor the Parole Board investigated his claim.

         At a parole hearing on July 29, 2014, the Parole Board revoked his parole despite his continued claim that he was not subject to the mandatory minimum amendment. On August 22, Davis was released again and given a certificate of parole. Six months after filing a "State Torts Claim" with the State's risk management division, Davis filed this action.

         4. Davis' Claims

         Davis named 16 defendants in his complaint: the State; the Department; the Attorney General's office; the Parole Board; the former governor; the former Attorney General; the Department's former director, former records administrator, former general counsel, and two of its former attorneys; the Parole Board's former and current chairpersons, its former vice [297 Neb. 964] chairperson, and a current and former member. He sued all of the state officers and employees in their official and individual capacities.

         For Davis' negligence claim under the STCA, he alleged that all the state defendants owed him a duty not to violate his civil rights and not to reincarcerate him or cause his reincarceration unless he had violated his parole. Davis alleged, condensed, that the defendants breached these duties when, despite his protests, they (1) failed to research the correct law and applied the wrong law to calculate his parole eligibility date, (2) determined that he had not served enough time, (3) added his name to a list of persons who should be arrested, and (4) reincarcerated him for 59 days when he should have been on parole.

         Davis alleged that in 1997, the Attorney General issued an opinion at the request of the Department's director at that time.[10] The Attorney General stated that generally, the good time provisions in effect when an offender committed the offense are the ones that apply to calculating the offender's sentence, [11] unless a later amendment increases the amount of credit that an offender can receive.[12] Davis alleged a lack of institutional oversight, implementing policies, and training; and he alleged deliberate indifference to his rights. He alleged that he lost his job as a valet, his engraving business, and the house he was renting and that his arrest had strained his relationship with his girlfriend and his family. He alleged that this stress led to two occasions when he attempted suicide while incarcerated.

         For his § 1983 due process claim, Davis alleged that the defendants' "acts, omissions, policies and practices [were] a substantial departure from accepted professional judgment, . . . [297 Neb. 965] constitute[d] punishment, [and] reflect[ed] deliberate indifference to the known and obvious consequences to [him]." For his § 1983 Eighth Amendment claim, he alleged that the defendants' "acts, omissions, policies and practices . . . constitute[d] cruel and unusual punishment." He alleged the defendants' conduct had caused him to suffer unspecified economic and noneconomic damages.

         5. Hearing on Defendants' Motion to Dismiss

         The defendants moved to dismiss Davis' negligence claim and § 1983 claims under Neb. Ct. R. Pldg. § 6-1112(b)(1) and (6). Their motion did not set out any specific grounds for a dismissal. At the hearing, the defendants argued that because Nebraska courts have held that the Parole Board's functions are quasi-judicial and inherently discretionary, Davis' claims against its members were not cognizable. They also argued that because the Parole Board had exclusive jurisdiction over Davis' parole revocation, the court should dismiss Davis' claims against the other defendants. Alternatively, they argued that Davis' § 1983 claims were deficient, because he had not alleged that the defendants were personally involved in determining that his parole should be revoked or in procuring his reincarceration. Regarding Davis' deliberate indifference allegations, the State argued that he would have to allege that the defendants knew he should not be reincarcerated and that they did so despite that knowledge. Regarding Davis' negligence claim, the State argued that the defendants who were not Board members were immune from suit under the doctrine of sovereign immunity, because they were performing a discretionary function.

         Davis responded that the Department is the main state agency with the duty to determine parole eligibility dates and release dates from mandatory minimum sentences. He argued that these duties were ministerial and not discretionary and that the Parole Board was not entitled to quasi-judicial immunity. He argued that his release on parole 2 months after he was reincarcerated showed that the only reason for his parole [297 Neb. 966] revocation was an incorrect calculation of his parole eligibility date.

         Davis also argued that the Department had continuing duties-before, during, and after his parole revocation-to review the record, apply the law correctly, and inform the Parole Board of its determinations. He argued that these duties showed other state actors besides the Parole Board were involved in his parole revocation and reincarceration. As a result, he argued that he could not yet plead with particularity and that the court could not yet determine whether any of the defendants were entitled to qualified immunity, because he had not had an opportunity to discover what each state actor had done.

         6. Court's Order

         The court granted the defendants' motion to dismiss. In its order, the court concluded that the Parole Board and its members were immune from Davis' claims, because they perform a quasi-judicial function that is inherently discretionary. It stated that Davis' claims against the Parole Board's members arose solely out of their official function and that Nebraska law did not permit civil damages for decisions involving discretion. It dismissed Davis' claims against the Parole Board and its members with prejudice.

         The court dismissed Davis' claims against the defendants who were not members of the Parole Board, because all of his claims arose from the revocation of his parole. The court determined that they were not involved in the revocation process and had no authority over the decision and that Davis had not alleged any facts connecting them to the revocation. It concluded that despite Davis' allegations about the Department's duties, the Parole Board had exclusive jurisdiction over his parole revocation, which did not involve the Attorney General's office or any other defendant who was not a Parole Board member.

          [297 Neb. 967] Regarding Davis' negligence claim, the court reasoned that under the STCA, the State can be liable only to the same extent as a private person would be under similar circumstances and a private person cannot revoke parole. Additionally, the court concluded that Davis' "negligence action triggers the discretionary function exception [to the State's waiver of immunity] because his claims are based upon State employees' executing Nebraska statutes . . . and performing discretionary functions."

         Regarding Davis' § 1983 claims, the court concluded that his claims against the State, state agencies, and state defendants in their official capacities were barred by sovereign immunity. It additionally found that the claims were not cognizable, because Davis had failed to "plead with any specificity that any named Defendant actually participated in any alleged constitutional violation." Alternatively, the court ruled that the defendants were entitled to qualified immunity from Davis' due process and Eighth Amendment claims. It concluded that the defendants' mistaken belief that Davis' parole eligibility date was correct did not deprive them of qualified immunity, because there is "no 'clearly established constitutional right' making State officials individually liable for erroneous parole revocations under the Eighth Amendment."

         III. ASSIGNMENTS OF ERROR

         Davis assigns, consolidated and restated, that the court erred as follows:

         (1) in dismissing all of his claims with prejudice; (2)in determining that the Parole Board and its members are immune from his claims;

         (3) in determining that the defendants who are not Parole Board members cannot be held liable for his reincarceration;

         (4) in failing to weigh the role that the defendants who are not Parole Board members played in his reincarceration;

         (5)in determining that the State has not waived its sovereign immunity for his negligence claim;

          [297 Neb. 968] (6) in determining that his negligence claim is barred by the discretionary function exception to the State's waiver of sovereign immunity;

         (7) in determining that he failed to plead his § 1983 claims with sufficient specificity;

         (8) in determining that the defendants were entitled to qualified immunity; and

         (9) in not allowing him to amend his complaint.

         VI. STANDARD OF REVIEW

         We review a district court's order granting a motion to dismiss de novo, accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party[13] To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face.[14] In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.[15]

         We independently review questions of law decided by a lower court.[16] The determination of constitutional requirements presents a question of law.[17] Statutory interpretation presents a question of law.[18] Whether a plaintiff's allegations present a claim that is barred by an exception to the State's waiver of tort immunity in a tort claims act presents a question of law.[19]

          [297 Neb. 969] V. ANALYSIS

         1. State Officers and Employees Acting Within Scope of Their Offices or Employment Can Be Sued for Tortious Conduct Only in Their Official Capacities

         Davis contends that he sued the defendants in their individual capacities and that some of the state employees acted outside of the scope of their duties. The State responds that Davis' negligence claim is not cognizable against the state defendants in their individual capacities. We agree.

         Section 81-8, 209 of the STCA bars tort claims against the State, its agencies, and its employees unless the State has waived its immunity for the claim:

The State of Nebraska shall not be liable for the torts of its officers, agents, or employees, and no suit shall be maintained against the state, any state agency, or any employee of the state on any tort claim except to the extent, and only to the extent, provided by the [STCA],

         Section 81-8, 215 is the State's general waiver of tort immunity under the STCA.[20] In relevant part, it provides that the State "shall be liable in the same manner and to the same extent as a private individual under like circumstances."

         Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.[21] Section 81-8, 215, when read in pari materia with § 81-8, 209, operates as a limited waiver of the State's tort immunity, subject to specified exceptions that are set out in § 81-8, 219.[22] The exceptions to the waiver of the State's tort immunity include claims based on the exercise [297 Neb. 970] or performance of a discretionary function by a state officer or employee.[23]

         Under § 81-8, 210, whether a plaintiff has sued a state officer or employee in his or her individual capacity is irrelevant to whether the STCA bars a tort claim against that officer or employee. That is because § 81-8, 210(4) defines a tort claim to mean a claim for money damages caused by the wrongful or negligent conduct of an officer or employee who was 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." And § 81-8, 209 authorizes tort liability for a state officer or employee only to the extent the STCA permits. So, under the STCA's definition of a tort claim, plaintiffs are limited to suing state officers and employees in their official capacities.[24] We have held that only when the officer or employee was not acting within the scope of his or her office or employment can a plaintiff pursue a tort claim against the officer or employee individually.[25] This means that if an officer or employee was acting within the scope of his or her office or employment and the alleged tortious conduct falls within an exception to the State's waiver of tort immunity, the STCA bars a tort claim against the officer or employee, regardless of the capacity in which he or she was purportedly sued.

         Here, the state defendants could not have committed the tortious acts set out in Davis' complaint as private individuals. To the extent that Davis implies that the defendants may have acted in bad faith, that argument is relevant to [297 Neb. 971] whether the defendants are entitled to quasi-judicial immunity, [26] not to whether they were acting within the scope of their office or employment. So even if they were negligent or abused their authority, Davis' argument that they might have acted outside of the scope of their official duties is ...


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