Henry Roe v. State of Nebraska , 861 F.3d 785 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-3680
___________________________
Henry Roe,
lllllllllllllllllllll Plaintiff - Appellant,
v.
State of Nebraska; John and Jane Does 1-10,
lllllllllllllllllllll Defendants - Appellees.
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: November 16, 2016
Filed: June 30, 2017
____________
Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Henry Roe, proceeding under a pseudonym, asserts that his true name and
picture mistakenly appeared on the Nebraska State Patrol’s online sex offender
registry. He sued the State of Nebraska and ten unnamed state employees for
damages, alleging negligence, unlawful taking of property for public use under
Nebraska law, and a deprivation of federal rights under 42 U.S.C. § 1983. The
district court1 dismissed all of Roe’s claims as either insufficiently pleaded or barred
by the statute of limitations. We affirm.
I.
Roe asserts that the State erroneously listed him on its public sex offender
registry sometime in early 2010. This allegedly happened because “Roe was given
an incorrect classification by the State of Nebraska.” Roe discovered the wrong
“shortly after December 23, 2011.” Roe asserts that the error damaged his reputation
and employability.
Roe filed a tort claim with the Nebraska State Claims Board on December 23,
2013. When the Board failed to address his claim within six months, Roe withdrew
it (as permitted by statute) and sued in Nebraska state court. See Neb. Rev. Stat. § 81-
8,213. The State and its unnamed employees removed the case to federal court.
Shortly thereafter, Roe filed an amended complaint.
Roe’s amended complaint raised several claims: negligence under the
Nebraska State Tort Claims Act, unlawful taking of property for public use under the
Nebraska Constitution and a Nebraska statute, and violations of the Federal
Constitution under 42 U.S.C. § 1983. Roe sought money damages from the State and
from state employees in their official and individual capacities. The district court
granted the defendants’ motion to dismiss the complaint. The court dismissed the
official-capacity § 1983 claims and the § 1983 claims against the State for lack of
subject matter jurisdiction and determined that the remaining allegations failed to
state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(1),
12(b)(6). We review the judgment de novo.
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
-2-
II.
To survive a motion to dismiss for failure to state a claim, a plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when it alleges
facts that allow the court to “draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although
“[s]pecific facts” are not required, Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam), bare assertions or “formulaic recitation[s]” of the elements are not enough
to state a claim. Twombly, 550 U.S. at 555.
A.
The district court dismissed Roe’s negligence claim on two grounds: that the
claim was barred by the statute of limitations and that Roe failed to state a claim upon
which relief could be granted. We conclude that even if Roe’s pleading was
sufficient to state a claim of negligence against the defendants, his claim is barred by
the two-year statute of limitations of the Nebraska State Tort Claims Act. See Neb.
Rev. Stat. § 81-8,227.2
The statute of limitations under the State Tort Claims Act begins to run when
the plaintiff “discovers, or in the exercise of reasonable diligence should discover, the
existence of the injury.” Shlien v. Bd. of Regents of Univ. of Neb., 640 N.W.2d 643,
651 (Neb. 2002). The record shows that Roe knew about his alleged injury more than
two years before he filed his claim with the Claims Board in December 2013. The
defendants attached to their motion to dismiss a transcript of testimony that Roe
2
Roe’s amended complaint alleged that the unnamed state employees’ negligent
actions were taken within the scope of their employment, so any tort claim against the
employees must be brought under the State Tort Claims Act. See D.M. v. State, 867
N.W.2d 622, 632 (Neb. Ct. App. 2015).
-3-
presented before a committee of the Nebraska Legislature on March 16, 2011. In that
testimony, Roe acknowledged learning through a neighbor in spring 2010 that his
name and picture appeared on the State’s sex offender registry. The district court
cited the transcript and evidently took judicial notice of the public record. See Fed.
R. Evid. 201.
In addressing a motion to dismiss, “[t]he court may consider the pleadings
themselves, materials embraced by the pleadings, exhibits attached to the pleadings,
and matters of public record.” Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir.
2011) (alteration in original) (internal quotation marks omitted). A district court may
consider these materials without converting the defendant’s request to a motion for
summary judgment. Levy v. Ohl, 477 F.3d 988, 991-92 (8th Cir. 2007). Roe does not
argue that it was improper for the court to rely on his public testimony, so we
consider the transcript as part of the record on the motion.
Roe does contend, however, that his testimony is consistent with a timely
negligence claim. He asserts that although he knew in spring 2010 and March 2011
that his name and image appeared on the registry, he did not know that he was
incorrectly listed. And without knowledge that the listing was erroneous, Roe argues,
he did not recognize that he had a legal claim against the State.
Nebraska’s discovery rule does not delay the accrual of a claim until a plaintiff
knows the legal significance of an injury. Roe admits that he knew as of March 2011
(or earlier) that he was injured by his appearance on the sex offender registry. With
the exercise of reasonable diligence, he could have and should have discovered that
state law did not provide for his listing on the public registry at that time. That he did
not discover his legal claim until later is an insufficient reason to delay the accrual of
his claim.
-4-
Roe also asserts that the defendants’ negligence was a “continuing course of
conduct,” so that the statute of limitations did not expire as long as his name and
image continued to appear on the website. This argument misconstrues Nebraska’s
continuing tort doctrine. Under Nebraska law, “the continuing ill effects of prior
tortious acts” are insufficient to extend the statute of limitations. Alston v. Hormel
Foods Corp., 730 N.W.2d 376, 381 (Neb. 2007). The mere “failure to right a wrong”
that occurred outside the limitations period is not a tortious act that restarts the statute
of limitations. Id. “In Nebraska, the continuing tort doctrine does not delay when
claims based on continuing torts accrue. . . . It simply allows claims to the extent that
they accrue within the limitations period.” Anthony K. ex rel. Ashley K. v. Neb. Dep’t
of Health & Human Servs., 855 N.W.2d 788, 800-01 (Neb. 2014) (internal citation
and quotation omitted). Roe does not allege that state employees committed a
tortious act within the limitations period; he pleaded that the tortious act—the
incorrect classification of Roe as an offender who should be listed on the
registry—occurred on or before December 23, 2011. Accordingly, the district court
correctly ruled that the negligence claim was untimely.
B.
Roe next alleged unlawful takings of property under the Nebraska Constitution
and Nebraska Revised Statute § 76-705. The state constitution declares that “[t]he
property of no person shall be taken or damaged for public use without just
compensation therefor.” Neb. Const. art. I, § 21. The statute provides that “[i]f any
condemner shall have taken or damaged property for public use without instituting
condemnation proceedings,” then the condemnee may petition a county judge for
damages. Neb. Rev. Stat. § 76-705. Roe did not adequately plead a claim based on
these provisions. Roe’s amended complaint asserts that conduct by the State and its
employees “damaged property owned by Plaintiff” and “deprived Plaintiff of the use
of their [sic] property.” He does not allege, however, that his residence or other
-5-
property was taken or damaged for public use. The district court properly dismissed
the takings claims.
C.
Roe brought § 1983 claims for money damages against the State and the
unnamed employees in their official capacities. Nebraska has not waived sovereign
immunity nor did Congress abrogate states’ sovereign immunity in § 1983, see Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 66-67, 71 (1989), so the district court
correctly dismissed these claims as barred by the Eleventh Amendment. Roe argues
that he might seek injunctive relief in the future, but his amended complaint did not
seek that form of relief. The district court properly dismissed under Rule 12(b)(1) the
official-capacity claims and the claim against the State as they were pleaded.
Roe also brought § 1983 claims against the unnamed state employees in their
individual capacities. The amended complaint asserted violations of the First, Sixth,
Eighth, and Fourteenth Amendments. The district court did not address the
sufficiency of the constitutional claims, but dismissed the § 1983 claims on the
ground that Roe did not make allegations specific enough to permit identification of
the unnamed defendants after reasonable discovery. See Munz v. Parr, 758 F.2d
1254, 1257 (8th Cir. 1985).
Roe does not develop any argument on appeal that the amended complaint is
sufficient to permit identification of the unnamed defendants after reasonable
discovery. We therefore see no basis to set aside the district court’s ruling on this
point. In any event, we also conclude that Roe did not adequately plead that any
unnamed defendant violated his constitutional rights. On appeal, he argues a
violation of his right to due process and equal protection under the Fourteenth
Amendment; the other claims are abandoned. The amended complaint alleges simply
that the state employees failed to use “due care” and were “negligent” in carrying out
-6-
their duties. “[L]iability for negligently inflicted harm is categorically beneath the
threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S.
833, 849 (1998); see Daniels v. Williams, 474 U.S. 327, 330-31 (1986). And a
mistake or lack of due care by state employees in a particular circumstance does not
establish invidious or irrational treatment that could violate the Equal Protection
Clause. Cent. Airlines, Inc. v. United States, 138 F.3d 333, 335 (8th Cir. 1998).
Accordingly, we affirm the district court’s dismissal of the § 1983 claims against the
state employees in their individual capacities.
* * *
The judgment of the district court is affirmed.
______________________________
-7-