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
Motions to Dismiss: Pleadings. For purposes
of a motion to dismiss, a court may consider some materials
that are part of the public record or do not contradict the
complaint, as well as materials that are necessarily embraced
by the pleadings.
Pleadings: Complaints. Documents embraced by
the pleadings are materials alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached to the pleadings.
___. Documents embraced by the complaint are not considered
matters outside the pleadings.
Res Judicata: Judgments. Res judicata bars
relitigation of any right, fact, or matter directly addressed
or necessarily included in a former adjudication if (1) the
former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment,
(3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both actions.
Convictions: Claims: Pleadings. Under Neb.
Rev. Stat. § 29-4603 (Reissue 2016), a party alleging a
wrongful conviction claim must plead (1) conviction and
sentence for a felony for which the party has served at least
part of the sentence; (2) pardon, vacation of the conviction,
or reversal and remand without a resulting retrial and
conviction; (3) actual innocence of the crime; and (4) that
the plaintiff did not commit or suborn perjury, fabricate
evidence, or otherwise make a false statement to cause or
bring about such conviction or the conviction of another,
except for coerced confessions or guilty pleas.
Neb. 330] 7. Sentences: Words and
Phrases. Legal innocence is defined as the absence
of one or more procedural or legal bases to support the
sentence given to a defendant.
___. Actual innocence refers to the absence of facts that are
prerequisites for the sentence given to a defendant.
Actions: Complaints. In determining whether
a complaint states a cause of action, a court is free to
ignore legal conclusions, unsupported conclusions,
unwarranted inferences, and sweeping legal conclusions cast
in the form of factual allegations.
for further review from the Court of Appeals, Pirtle, Bishop,
and Arterburn, Judges, on appeal thereto from the District
Court for Lancaster County, Robert R. Otte, Judge. Judgment
of Court of Appeals reversed, and cause remanded with
D. Patterson for appellant.
Douglas J. Peterson, Attorney General, and Ryan S. Post for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and
Nadeem filed a claim against the State for damages under the
Nebraska Claims for Wrongful Conviction and Imprisonment
The district court granted the State's motion to dismiss
under Neb. Ct. R. Pldg. § 6-1112(b)(6) for failure to
state a claim. Nadeem appealed to the Nebraska Court of
Appeals, which reversed the district court's
dismissal. We granted the State's petition for
further review. Because Nadeem has not sufficiently pled a
claim of actual innocence, we reverse, and remand to the
Court of Appeals with directions to affirm the order of the
Neb. 331] FACTS
was convicted in 2010 of attempted first degree sexual
assault and attempted third degree sexual assault of H.K., a
minor. These offenses were based on an encounter that Nadeem
had with a 14-year-old girl in 2009 when he was 22 years old.
The evidence presented at Nadeem's criminal trial is
summarized in his original direct appeal,  but the facts
according to Nadeem's complaint are summarized below.
2009, Nadeem met a 14-year-old girl in a public library and
engaged in conversation with her. Nadeem asked the girl
questions such as how old she was, where she went to school,
and whether she had a boyfriend. The girl told Nadeem that
she was not allowed to give out her telephone number. Nadeem
asked the girl if he could give her his telephone number, and
she said, '"I guess.'" Nadeem wrote down
his telephone number for her and told her that he hoped she
the girl told her mother about her interaction with Nadeem,
the mother became very upset. She complained to the head
librarian, who suggested that she call the police.
girl's mother did call the police, and the next day,
investigators invited the girl and her mother into their
headquarters for recorded interviews. The investigators then
had the girl make a recorded '"controlled
call'" to Nadeem, instructing the girl on what to
say and how to respond to Nadeem. According to Nadeem, the
purpose of the call was to induce him into a conversation
with the girl that involved sexual content. The officers
instructed the girl to tell Nadeem to meet her at the library
and to bring a condom. Nadeem went to the library as
requested, but did not bring a condom. Police met Nadeem
there and arrested him.
convictions for attempted first degree sexual assault and
attempted third degree sexual assault of a minor [298 Neb.
332] were ultimately vacated by the Court of
Appeals. Although the Court of Appeals rejected
Nadeem's argument that there was insufficient evidence to
sustain his convictions, it reversed Nadeem's convictions
and remanded the cause for a new trial based on ineffective
assistance of counsel and based on the denial of a jury
instruction for the defense of entrapment.The State sought
further review with this court in 2013. which we denied.
During that time, Nadeem completed his prison sentence.
2015, Nadeem filed a claim against the State for compensation
under the Nebraska Claims for Wrongful Conviction and
Imprisonment Act, which claims are filed under the State Tort
Claims Act. In part of Nadeem's complaint, he
alleged that he had been entrapped. The State then filed a
motion to dismiss Nadeem's claim, arguing that the
affirmative defense of entrapment is legally insufficient to
show actual innocence (as opposed to legal