Submitted: November 16, 2016
from United States District Court for the District of
Nebraska - Lincoln
COLLOTON, BEAM, and GRUENDER, Circuit Judges.
COLLOTON, Circuit Judge.
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 dismissed all of
Roe's claims as either insufficiently pleaded or barred
by the statute of limitations. We affirm.
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
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.
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.
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.
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.
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 ...