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Roe v. State

United States Court of Appeals, Eighth Circuit

June 30, 2017

Henry Roe, Plaintiff- Appellant,
v.
State of Nebraska; John and Jane Does 1-10, Defendants - Appellees.

          Submitted: November 16, 2016

         Appeal from United States District Court for the District of Nebraska - Lincoln

          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 court[1] 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.

         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 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 ...


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