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08/09/2024 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
Ray Ryan, appellant, v.
State of Nebraska, appellee.
___ N.W.3d ___
Filed August 9, 2024. No. S-24-003.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.
2. Tort Claims Act: Appeal and Error. Whether the allegations made by
a plaintiff constitute a cause of action under the State Tort Claims Act
or whether the allegations set forth claims which are precluded by the
exemptions set forth in the act is a question of law, for which an appellate court has a duty to reach its conclusions independent of the conclusions reached by the district court.
3. Jurisdiction: Immunity. The doctrine of sovereign immunity is, by its
nature, jurisdictional, and presents a question of subject matter jurisdiction that courts cannot ignore.
4. Constitutional Law: Actions: Legislature: Political Subdivisions.
Under Neb. Const. art. V, § 22, the State may sue and be sued, and the
Legislature shall provide by law in what manner and in what courts suits
shall be brought. But this constitutional provision is not self-executing,
and no suit may be maintained against the State or a political subdivision unless the Legislature, by law, has provided otherwise.
5. Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action
waiving sovereign immunity, a trial court lacks subject matter jurisdiction over an action against the State.
6. Tort Claims Act: Legislature: Immunity: Waiver. Through the enactment of the State Tort Claims Act, the Legislature has waived sovereign
immunity with respect to some, but not all, types of tort claims.
7. Negligence. The threshold issue in any negligence action is whether the
defendant owes a legal duty to the plaintiff. If there is no legal duty,
there is no actionable negligence.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
8. ____. The question whether a legal duty exists for actionable negligence
is a question of law dependent on the facts in a particular situation.
9. Statutes: Legislature: Intent: Torts: Liability. A court may determine
that a statute gives rise to a tort duty to act in the manner required by
the statute where (1) the statute is enacted to protect a class of persons
which includes the plaintiff, (2) the statute is intended to prevent the
particular injury that has been suffered, and (3) the statute is intended
by the Legislature to create a private liability as distinguished from one
of a public character.
Appeal from the District Court for Lancaster County,
Andrew R. Jacobsen, Judge. Affirmed.
Ray Ryan, pro se.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Grant D. Strobl for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
An inmate in the custody of the Nebraska Department of
Correctional Services (DCS) appeals from an order of the
district court for Lancaster County, Nebraska, dismissing his
negligence action against the State brought under the State
Tort Claims Act (STCA). 1 The inmate asserts that DCS failed
to fulfill its duty under Nebraska regulations to investigate his
allegation that other inmates stole his property. The district
court found that it lacked subject matter jurisdiction over the
case because the inmate failed to plead a cognizable claim
under the STCA, among other things. Because we agree with
the district court that the inmate failed to plead a legal duty
owed to him by the State under the regulations upon which he
relies, we affirm.
1
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2022).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
BACKGROUND
The inmate here, Ray Ryan, initiated his suit against the
State in August 2022, but the district court denied his application to proceed in forma pauperis and dismissed his case.
We reversed that decision in a memorandum opinion filed on
April 14, 2023, in case No. S-22-720, and remanded the matter for further proceedings.
On remand, Ryan filed an amended complaint alleging
that while an inmate in DCS custody, he was transferred to
segregated confinement in October 2021. Upon his return
from segregated confinement, he discovered that “a bunch
of his property” was missing from his cell. According to
Ryan, “when an inmate goes to segregated confinement and
his property [winds] up missing, it’s because it had been stolen by other inmates; usually as a result of a staff member
opening a cell door for another inmate who doesn’t belong
in the cell.” Ryan informed several DCS staff members that
his property had been stolen, but “[n]o reports were written,
and no investigation took place to find out what had occurred
with respect to the theft of his property.” Ryan alleged that
one DCS staff member told him that nothing could be done
about lost or stolen property and that he could instead file a
tort claim. Ryan alleged that the stolen property was never
returned to him and that it had a value of $496.05. He also
claimed that he “suffered and is suffering from mental and
emotional distress” because of the incident.
As to his single cause of action, Ryan stated in his amended
complaint:
State officials . . . owed [him] a duty to file a report
regarding [his] complaint and investigate the matter in
accordance with Chapter 6 of Title 68 [of the Nebraska
Administrative Code] where [he] complained of an
inmate or inmates violating the Code of Offenses as
promulgated by Chapter 5 of Title 68 [of the Nebraska
Administrative Code].
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
Ryan also stated in his amended complaint that inmates violated the relevant regulations when they aided and abetted in
the theft of his property and entered his cell without proper
authorization and that DCS staff violated the regulations when
they failed to file a misconduct report following the incident.
Ryan alleged that DCS’ failure to file a report and investigate
the matter in accordance with the regulations constituted a
breach of its duty and that this breach was the actual and
proximate cause of him having “no chance of recovering any
of his property.” He sought $496.05 in damages from the
State for the property and $1.5 million in damages for his
“pain and suffering” due to DCS’ negligence.
The State moved to dismiss the amended complaint on the
grounds that the court lacked subject matter jurisdiction and
that Ryan failed to state a claim upon which relief could be
granted. The State argued, among other things, that the case
should be dismissed because the DCS regulations Ryan cited
did not create a legal duty owed to him and that, as such, he
failed to plead a tort claim under the STCA.
The district court agreed with the State, finding, as relevant
here, that the DCS regulations in question “relate[d] only to
the filing of misconduct reports and investigations for purposes of facilitating the [DCS] disciplinary process and do
not create a legal duty owed to [Ryan].” In other words, the
district court concluded that the regulations do not give rise
to a tort duty and that a violation of the regulations is not
evidence of a breach of a legal duty that exists independent of
the regulations. Because Ryan failed to show that DCS owed
him a legal duty, the court determined that he failed to state a
claim upon which relief could be granted. As such, the court
determined that it lacked subject matter jurisdiction and dismissed the case.
Ryan timely appealed, and we moved the matter to our
docket. 2
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
ASSIGNMENTS OF ERROR
Ryan assigns that the district court erred in dismissing
his case for lack of subject matter jurisdiction and in failing to state a claim upon which relief can be granted under
the STCA.
STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. 3
[2] Whether the allegations made by a plaintiff constitute a
cause of action under the STCA or whether the allegations set
forth claims which are precluded by the exemptions set forth
in the act is a question of law, for which an appellate court has
a duty to reach its conclusions independent of the conclusions
reached by the district court. 4
ANALYSIS
In this appeal, Ryan contends that the STCA waives sovereign immunity for his negligence action against the State. He
asserts that the State owed him a legal duty under the “Inmate
Disciplinary Procedures” regulations 5 to investigate his allegation that his property was stolen from his cell and that therefore, he properly alleged a tort claim under the STCA sufficient to survive the State’s motion to dismiss. We disagree. To
explain our decision, we briefly review fundamental principles
regarding sovereign immunity and the STCA before turning to
the regulations that Ryan asserts create a tort duty.
Sovereign Immunity and STCA
[3-5] Under the common-law doctrine of sovereign immunity, a sovereign could not be sued in its own courts without
3
Barber v. State, 316 Neb. 398,
4 N.W.3d 844 (2024).
4
Id.
5
68 Neb. Admin. Code, ch. 6 (2023).
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317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
its consent. 6 The doctrine of sovereign immunity is, by its
nature, jurisdictional, and presents a question of subject matter jurisdiction that courts cannot ignore. 7 In Nebraska, the
sovereign immunity of the State and its political subdivisions
is preserved in Neb. Const. art. V, § 22, which provides that
“[t]he [S]tate may sue and be sued, and the Legislature shall
provide by law in what manner and in what courts suits shall
be brought.” 8 But this constitutional provision is not self-executing, and no suit may be maintained against the State or
a political subdivision unless the Legislature, by law, has provided otherwise. 9 Therefore, absent legislative action waiving
sovereign immunity, a trial court lacks subject matter jurisdiction over an action against the State. 10
[6] Through the enactment of the STCA, the Legislature
has waived sovereign immunity with respect to some, but not
all, types of tort claims. 11 And no tort claim can be brought
against the State, any state agency, or any employee of the
State, except to the extent provided by the STCA. 12 Disputes
over the STCA often center upon whether one of the exemptions to the State’s limited waiver of sovereign immunity in
6
Brown v. State,
315 Neb. 336,
996 N.W.2d 56 (2023). See, also, Joshua M.
v. State,
316 Neb. 446, 457,
5 N.W.3d 454, 464 (2024) (“a state’s immunity
from suit is recognized as a fundamental aspect of sovereignty”).
7
Joshua
M., supra note 6.
8
See Garcia v. City of Omaha,
316 Neb. 817,
7 N.W.3d 188 (2024). See,
also, Rouse v. State,
301 Neb. 1037,
921 N.W.2d 355 (2019) (noting
that under 11th Amendment to U.S. Constitution, nonconsenting state is
generally immune from suit unless that state has waived immunity).
9
See
Garcia, supra note 8. See, also, Joshua
M., supra note 6, 316 Neb. at
458, 5 N.W.3d at 465 (describing Neb. Const. art. V, § 22, as “permit[ting]
the State to lay its sovereignty aside and consent to be sued on such terms
and conditions as the Legislature may prescribe”).
10
Joshua
M., supra note 6.
11
Barber, supra note 3. See § 81-8,210(4).
12
See, § 81-8,209; Doe v. State,
312 Neb. 665,
980 N.W.2d 842 (2022).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
the STCA apply. 13 Here, however, we confront a different
question—whether Ryan plausibly alleged a “tort claim” as
defined by the STCA. If he did not, the State’s sovereign
immunity was not waived, and the district court lacked subject
matter jurisdiction over his suit.
The STCA’s definition of a “tort claim” includes, as relevant
here, “any claim against the State of Nebraska for money only
on account of damage to or loss of property . . . caused by the
negligent or wrongful act or omission of any employee of the
state.” 14 In the present case, Ryan seeks money damages from
the State for his stolen property based on the theory that DCS
staff were negligent in failing to investigate his complaint
regarding the theft, which negligence prevented the recovery
of his property. The State, however, asserts that Ryan failed
to plausibly allege the requisite elements of such a negligence action.
[7] The elements that a plaintiff must plausibly allege for
an actionable negligence claim under the STCA are the same
as for a negligence action generally: A plaintiff must show a
legal duty owed by the defendant to the plaintiff, a breach of
such duty, causation, and damages. 15 The threshold issue in
any negligence action is whether the defendant owes a legal
duty to the plaintiff. 16 If there is no legal duty, there is no
actionable negligence. 17 We thus turn our analysis to whether
Ryan plausibly alleged a negligence claim against the State
by determining whether he showed that the State owed him a
legal duty.
13
See § 81-8,219.
14
§ 81-8,210(4).
15
See
Doe, supra note 12.
16
Reiber v. County of Gage,
303 Neb. 325,
928 N.W.2d 916 (2019).
17
Stonacek v. City of Lincoln,
279 Neb. 869,
782 N.W.2d 900 (2010).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
No Legal Duty Owed by State Under
Applicable Regulations
Ryan asserts on appeal that 68 Neb. Admin. Code, ch. 6
(2023), which is unchanged in all material respects from the
regulations in effect in 2021, and, by extension, the statutes
under which the regulations were promulgated, 18 “require[]
staff to . . . investigate misconduct by prisoners,” such as
when inmates enter another inmate’s cell and take his or her
property. 19 He argues that chapter 6 was enacted “to protect
prisoners as well [as] prison staff and property from harm
[and] to require prison staff to prevent injury.” 20 In support
of this argument, he relies on 68 Neb. Admin. Code, ch. 5
(2023), which at all relevant times prohibited conduct by
inmates such as theft, being in unauthorized areas, and possessing or receiving unauthorized articles, each of which
Ryan alleges other inmates committed here. Because any such
offense may result in disciplinary action under chapter 6,
Ryan argues that the regulations were designed to protect him
and his property from harm. He concludes that when the DCS
staff “failed to adhere to [these] regulations” by not filing a
report and investigating the theft of his property, they “committed negligence against [him]” under the STCA. 21 These
inmate disciplinary procedure statutes and regulations are the
only authority Ryan asserts to support his theory that the State
owed him a legal duty.
[8,9] Whether a legal duty exists for actionable negligence
is a question of law dependent on the facts in a particular situation. 22 The parties rely on a three-part test that we have used
to determine whether a statute gives rise to a tort duty. That
18
See Neb. Rev. Stat. §§ 83-4,109 to 83-4,123 (Reissue 2014 & Cum. Supp.
2022).
19
Brief for appellant at 10.
20
Id. at 9.
21
Id.
22
Porter v. Knife River, Inc.,
310 Neb. 946,
970 N.W.2d 104 (2022).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
test considers whether (1) the statute is enacted to protect a
class of persons which includes the plaintiff, (2) the statute
is intended to prevent the particular injury that has been suffered, and (3) the statute is intended by the Legislature to
create a private liability as distinguished from one of a public
character. 23 The parties also suggest that this same test applies
to regulations, like those at issue here. For purposes of our
discussion, we assume without deciding that this is the case.
Applying the test to the inmate disciplinary procedure statutes and regulations that Ryan relies upon, we find that they
were not enacted to protect a class of persons that includes
Ryan. Ryan’s arguments to the contrary are based on the mistaken premise that the applicable statutes and regulations were
enacted to protect an inmate who seeks an investigation into
other inmates’ alleged misconduct. Based on their plain language, we instead find that the statutes and regulations were
enacted to prescribe disciplinary procedures for inmates who
allegedly engaged in that misconduct. 24
Sections 83-4,109 to 83-4,123 govern the “[d]isciplinary
procedures in adult institutions administered by [DCS].” 25 The
Legislature stated that it enacted these disciplinary procedure
statutes to, as relevant here, require DCS to adopt rules and
regulations to establish criteria for determining the rights and
privileges of inmates, including criteria concerning “disciplinary procedures and a code of offenses for which discipline
may be imposed.” 26 In addition, the statutes contain inmate
grievance procedures, 27 which “allow inmates to communicate
grievances” to corrections officials. 28
23
Doe, supra note 12 (citing Claypool v. Hibberd,
261 Neb. 818,
626
N.W.2d 539 (2001)).
24
See, §§ 83-4,109 to 83-4,123; 68 Neb. Admin. Code, ch. 6 (2023).
25
§ 83-4,109.
26
§ 83-4,111.
27
See
Neb. Rev. Stat. §§ 83-4,135 to 83-4,139 (Reissue 2014).
28
§ 83-4,137.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
RYAN V. STATE
Cite as 317 Neb. 337
As directed, DCS established regulations for “Inmate
Disciplinary Procedures” in chapter 6. 29 The regulations clarify that the inmate disciplinary procedures are “designed to
contribute to the efficient operation” of each facility and “to
be conducive to the successful re-socialization of the inmates
confined therein.” 30 They also state that “[d]isciplinary action
is used to regulate an inmate’s behavior” and “to hold the
inmate accountable for his/her misconduct and to deter that
inmate and other inmates from engaging in similar misconduct
in the future.” 31 In chapter 5, DCS lists a “Code of Offenses”
that prohibits certain inmate conduct. 32 A violation of that
code “may result in disciplinary action” under chapters 5 and
6. 33 The regulations also contain a procedure for the “Filing
and Logging of Misconduct Reports.” 34 Section 005 of chapter
6 (Section 005) states:
If an employee witnesses or has a reasonable belief that
an infraction of the Code of Offenses has been committed by an inmate, the employee shall prepare a written
report. The report shall be filed . . . within 72 hours of
the occurrence of the infraction or the discovery of it.
. . . The report shall be logged within 24 hours after the
report is filed, which commences the investigation. 35
In short, the disciplinary procedures within the relevant
statutes and regulations both primarily include the measures
that must be taken before an inmate is disciplined for misconduct, such as notice, review from a disciplinary committee,
and a hearing; the principles governing disciplinary action
and restrictions on the type of discipline and punishment an
29
See 68 Neb. Admin. Code, ch. 6.
30
Id. at § 002.
31
Id. at § 003.01.
32
See 68 Neb. Admin. Code, ch. 5 (2023).
33
Id. at § 002.
34
68 Neb. Admin. Code, ch. 6, § 005.
35
Id.
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RYAN V. STATE
Cite as 317 Neb. 337
inmate can be subjected to; and a subsequent review of the
disciplinary action taken and an appeals process. 36 None of
these inmate disciplinary procedures, however, indicate that
their purpose is to create a legal duty of the State, owed to an
inmate, to file a certain type of report or undertake a particular
type of investigation in response to other inmates’ alleged misconduct against the inmate.
Ryan places particular emphasis on Section 005 of the
regulations. He asserts that Section 005 “create[s] a duty
upon [the State] to take certain steps specified therein to hold
those responsible for stealing [his] property accountable, and
to prevent [him] future harm.” 37 However, it is apparent from
the text of this regulation that while the procedure related to
the filing of misconduct reports requires a DCS employee to
prepare a written report when an inmate is suspected of committing an infraction, it does not create a legal duty owed to
any inmate to file that report or investigate the suspected misconduct. Ryan fails to recognize this crucial distinction. His
other arguments related to the State’s duty owed to him under
the regulations are likewise without merit.
Our determination that the applicable statutes and regulations were not enacted to protect an inmate like Ryan, who
seeks an investigation into other inmates’ alleged misconduct,
is dispositive of whether Ryan plausibly alleged a duty he was
owed by the State. We have found that if the authority for
which a plaintiff relies upon fails to satisfy any of the three
factors stated above, it cannot give rise to a tort duty. 38 There
is, therefore, no need to consider the other two factors.
Because the inmate disciplinary procedure statutes and
regulations that Ryan relies upon do not give rise to a tort
duty of the State to investigate the alleged theft of Ryan’s
property, Ryan failed to state a claim of negligence under
36
See, generally, §§ 83-4,109 to 83-4,123; 68 Neb. Admin. Code, ch. 6.
37
Brief for appellant at 8.
38
See
Stonacek, supra note 17.
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RYAN V. STATE
Cite as 317 Neb. 337
the STCA. As such, the State’s sovereign immunity was not
waived, and the district court lacked subject matter jurisdiction over Ryan’s case. 39
CONCLUSION
The district court did not err in dismissing Ryan’s complaint
insofar as he alleged no negligence on the part of the State.
Accordingly, we affirm the order of the district court.
Affirmed.
39
See Doe, supra note 12,
312 Neb. at 681, 980 N.W.2d at 854 (“plaintiffs
bringing an action under the STCA must plausibly allege a ‘tort claim’ as
that term is defined under the STCA, both to survive a motion to dismiss
for failure to state a claim and to establish subject matter jurisdiction”).
Stacy, J., concurring.
I agree with the majority that no tort duty was created by
the prison regulations on which Ray Ryan relies. But I think
there is a more fundamental reason to affirm the district court’s
judgment of dismissal—Ryan’s operative complaint did not
allege a plausible “tort claim” as that term is defined under the
State Tort Claims Act (STCA). 1
The State sought dismissal of Ryan’s complaint on two
grounds: a lack of subject matter jurisdiction under Neb.
Ct. R. Pldg. § 6-1112(b)(1) (rule 12(b)(1)) and the failure
to state a claim upon which relief can be granted under
§ 6-1112(b)(6) (rule 12(b)(6)). The trial court correctly noted
that under such circumstances, we instruct courts to consider
the rule 12(b)(1) grounds first and address the rule 12(b)(6)
grounds only if the court determines it has subject matter
jurisdiction. 2 Following that order of operations, I agree with
1
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2022).
2
See, Holmstedt v. York Cty. Jail Supervisor,
275 Neb. 161,
745 N.W.2d
317 (2008); Anderson v. Wells Fargo Fin. Accept.,
269 Neb. 595,
694
N.W.2d 625 (2005).
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the district court that Ryan’s complaint did not establish subject matter jurisdiction under the STCA.
Section 81-8,210(4) of the STCA defines a “tort claim” as
[A]ny claim against the State of Nebraska 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 . . . .
We have recognized that under this definition, the type of tort
claims that fall within the STCA’s limited waiver of sovereign
immunity are limited only to those for which a private person,
under like circumstances, would be liable to the plaintiff in
tort. 3 As such, a plaintiff bringing an action under the SCTA
must plausibly allege a “tort claim” as that term is defined
under the STCA to survive a motion to dismiss for lack of
subject matter jurisdiction. 4
Ryan’s operative complaint alleged that after he reported
property missing from his cell, prison officials had a duty
to “file a report” and to “investigate” the matter under certain prison regulations. The complaint alleged prison officials breached that duty and, as a result, Ryan was damaged
and “had no chance of recovering any of his property that
was stolen.”
Ryan does not argue there is a private analogue for this
claim, and his complaint alleged no facts suggesting a private
person, under like circumstances, would be liable to him in
tort for such conduct. On this record, Ryan has failed to allege
a plausible “tort claim” for which the State has waived its
immunity under the STCA. I would affirm the dismissal on
rule 12(b)(1) grounds.
3
See Doe v. State, 312 Neb. 665,
980 N.W.2d 842 (2022).
4
See id.