D.M. v. State

25 Neb.App. 596

911 N.W.2d 621

D.M., appellee,

v. STATE of Nebraska et al., appellees,andGeoff Britton and Michael L. Kenney, Appellants.

No. A-16-587

Court of Appeals of Nebraska.

Filed March 13, 2018

Douglas J. Peterson, Attorney General, David A. Lopez, and Maddisen Ebert and Joshua Baumann, Senior Certified Law Students, for appellants.

Julie A. Jorgensen, of Morrow, Willnauer, Klosterman & Church, Omaha, for appellee D.M.

Moore, Chief Judge, and Pirtle and Bishop, Judges.

Bishop, Judge.

I. INTRODUCTION

While incarcerated at the Omaha Correctional Center, D.M. was sexually assaulted by a guard. D.M. sued the State, the Nebraska Department of Correctional Services (DCS), and various individual defendants in their official and individual capacities. This appeal involves two of those defendants, Geoff Britton (an investigator for the DCS) and Michael L. Kenney (warden of the Omaha Correctional Center), and the remaining constitutional claims pending against them. Both filed motions to dismiss the remaining claims for failure to state a claim, and both alleged they were entitled to qualified immunity as a matter of law. The district court for Douglas County overruled the motions, and Britton and Kenney filed interlocutory appeals challenging the district court's order denying their entitlement to qualified immunity.

Because D.M.'s First Amendment claim necessitates resolving a fact-related dispute, we conclude this part of the appeal is not immediately reviewable under the collateral order doctrine and we dismiss the appeal in part as to the First Amendment issue for lack of jurisdiction. However, we conclude D.M. failed to establish a violation of his 8th and 14th Amendment rights as to Britton and Kenney; therefore, they are entitled to qualified immunity on those claims. We reverse the district court's order to the extent it denied Britton and Kenney qualified immunity on the 8th and 14th Amendment claims.

II. BACKGROUND

Due to the procedural posture of this case, the facts considered are those alleged in D.M.'s amended complaint. D.M. states that he was sexually assaulted by Anthony Hansen, a guard, in the commons area of the Omaha Correctional Center. D.M. reported the sexual assault to Jim Brown, his unit manager, immediately after it occurred. D.M. also completed a formal complaint and grievance form. Thereafter, D.M. was placed in segregation for more than 30 days while corrections/prison officials investigated the allegations made against Hansen.

While in segregation, D.M. was isolated from the general population and allowed no contact with other inmates. He had limited telephone privileges and was instructed not to speak to anyone about his allegations, including friends and family. Prison guards were instructed not to speak with D.M. Britton repeatedly interrogated D.M. about the incident, told D.M. that he would get jail time for lying about Hansen, encouraged D.M. to change his story, and told D.M. that he was "ruining the life" of Hansen and Hansen's wife, who also worked at the facility.

Hansen was allowed to work for some time during the investigation, but was eventually placed on paid leave, while D.M. remained in segregation. D.M. requested that he be transferred to another facility rather than remain in segregation, but was told that there was no room and that he would not be transferred. D.M. repeatedly requested counseling services, but none were initially provided.

After the investigation, Hansen pled guilty to sexual assault. D.M. was then transferred from his minimum security facility to a maximum security facility with a "reputation for violence." After transfer and numerous requests, D.M. was approved for counseling and received two sessions before his release.

D.M. filed a complaint against the State in December 2013. D.M. brought tort claims for negligent hiring/supervising, failure to protect, and respondeat superior against the State and the DCS; Robert P. Houston (director of the DCS), Britton (then known as John Doe # 1), and Brown, in both their individual and official capacities; and Hansen, in both his individual and official capacities. Several persons and entities filed a motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) for failure to state a claim and also on the ground of sovereign immunity. Filing the motion to dismiss were Houston, in both his individual and official capacities; the State; the DCS; and John Doe # 1, Brown, and Hansen, in their official capacities only. See D.M. v. State , 23 Neb. App. 17, 867 N.W.2d 622 (2015), overruled on other grounds, Davis v. State , 297 Neb. 955, 902 N.W.2d 165 (2017). The district court dismissed D.M.'s entire complaint with prejudice, concluding that all of his claims were barred by sovereign immunity. Id. On appeal, we affirmed in part, and in part reversed and remanded for further proceedings, because we found that sovereign immunity did not apply to all of D.M.'s claims and all of the defendants. Id.

D.M. filed an amended complaint in December 2015 against the State; the DCS; and Houston, Britton (formerly John Doe # 1), Kenney, Brown, and Hansen in their individual and official capacities. D.M. alleged six causes of action: (1) First Amendment retaliation (against all defendants), (2) violation of equal protection and due process (against all defendants), (3) cruel and unusual punishment (against all defendants) under the Nebraska and federal Constitutions, (4) intentional infliction of emotional distress (against Hansen only), (5) intentional infliction of emotional distress (against all defendants), and (6) negligent infliction of emotional distress (against all defendants).

In December 2015, the State and the DCS, along with Houston, Britton, Brown, and Hansen (in their official capacities only), filed a motion to dismiss the entire amended complaint. The district court subsequently granted the motion in part, dismissing D.M.'s fifth cause of action (intentional infliction of emotional distress) and sixth cause of action (negligent infliction of emotional distress) with prejudice. As to Britton and Kenney, this left only the three constitutional claims.

In March 2016, Britton and Kenney filed identical motions to dismiss D.M.'s amended complaint for failure to state a claim upon which relief can be granted and/or because they were entitled to qualified immunity as a matter of law. After a hearing, the district court denied these motions on May 20. Britton and Kenney filed an interlocutory appeal from that order.

III. ASSIGNMENTS OF ERROR

Britton and Kenney assign that the district court erred in (1) overruling their motions to dismiss on the ground of qualified immunity and (2) denying their individual assertions of qualified immunity without issuing an "individualized analysis" of each claim.

IV. STANDARD OF REVIEW

An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law. Carney v. Miller , 287 Neb. 400, 842 N.W.2d 782 (2014).

A district court's denial of a motion to dismiss is reviewed de novo. See Brothers v. Kimball Cty. Hosp. , 289 Neb. 879, 857 N.W.2d 789 (2015). See, also, StoreVisions v. Omaha Tribe of Neb. , 281 Neb. 238, 795 N.W.2d 271 (2011), modified on denial of rehearing 281 Neb. 978, 802 N.W.2d 420.

An appellate court reviewing the denial of a motion to dismiss accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusions. See Tryon v . City of North Platte , 295 Neb. 706, 890 N.W.2d 784 (2017).

V. ANALYSIS

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Hallie Mgmt. Co. v. Perry , 272 Neb. 81, 718 N.W.2d 531 (2006). Generally, only final orders are appealable. Carney, supra. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the three types of final orders that an appellate court may review are (1) an order that affects a substantial right and that determines the action and prevents a judgment, (2) an order that affects a substantial right made during a special proceeding, and (3) an order that affects a substantial right made on summary application in an action after a judgment is rendered. Carney , supra.

The present appeal is taken from the district court's order overruling Britton's and Kenney's motions to dismiss, both of which asserted D.M.'s amended complaint failed to state a claim upon which relief could be granted and/or claimed entitlement to qualified immunity as a matter of law. Denial of a motion to dismiss is not a final order. See Hallie Mgmt. Co., supra. However, the collateral order doctrine is an exception to the final order rule. Carney, supra. Britton and Kenney assert that our jurisdiction is proper under the collateral order doctrine. Under the collateral order doctrine, the denial of a claim of qualified immunity is appealable, notwithstanding the absence of a final judgment, if the denial of immunity turns on a question of law. Carney, supra.

1. COLLATERAL ORDER DOCTRINE

We take a moment to address the status of the collateral order doctrine in Nebraska. Last year, the Nebraska Supreme Court decided Heckman v . Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017), wherein it overruled eight enumerated cases, originating with Richardson v . Griffiths , 251 Neb. 825, 560 N.W.2d 430 (1997), that allowed interlocutory appeals through the collateral order doctrine for orders disqualifying counsel in a civil case. The Supreme Court engaged in a detailed discussion of the right to appeal in Nebraska, reiterating that the right is " 'purely statutory.' " Heckman , 296 Neb. at 461, 894 N.W.2d at 299. "In other words, unless a statute provides for an appeal, such right does not exist. The right to appeal does not exist at common law." Id.

Heckman, supra, refers to Richardson-Merrell Inc. v. Koller , 472 U.S. 424, 105 S.Ct. 2757, 86...