Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/04/2019 08:06 AM CST




                                                          - 1037 -
                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                     ROUSE v. STATE
                                                   Cite as 301 Neb. 1037




                                            Roy J. Rouse, appellant, v.
                                        State of Nebraska et al., appellees.
                                                      ___ N.W.2d ___

                                           Filed January 4, 2019.    No. S-18-129.

                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 rea-
                    sonable inferences in favor of the nonmoving party.
                2.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
                    tion of law, for which an appellate court has an obligation to reach
                    an independent conclusion irrespective of the decision made by the
                    court below.
                3.	 Constitutional Law: Immunity: Waiver. Under the 11th Amendment,
                    a nonconsenting state is generally immune from suit unless the state has
                    waived its immunity.
                4.	 Tort Claims Act: Legislature: Immunity: Waiver. The Legislature has
                    provided limited waivers of the State’s sovereign immunity through the
                    State Tort Claims Act, subject to statutory exceptions.
                5.	 Statutes: Appeal and Error. Appellate courts give statutory language
                    its plain and ordinary meaning and will not resort to interpretation to
                    ascertain the meaning of statutory words which are plain, direct, and
                    unambiguous.
                6.	 Statutes: Immunity: Waiver. Statutes that purport to waive the State’s
                    protection of sovereign immunity are strictly construed in favor of the
                    sovereign and against the waiver.
                7.	 Immunity: Waiver. To strictly construe against a waiver of sovereign
                    immunity, courts broadly read exceptions to a waiver of sovereign
                    immunity.
                8.	 Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
                    only where stated by the most express language of a statute or by such
                    overwhelming implication from the text as will allow no other reason-
                    able construction.
                                  - 1038 -
             Nebraska Supreme Court A dvance Sheets
                     301 Nebraska R eports
                              ROUSE v. STATE
                            Cite as 301 Neb. 1037

 9.	 Constitutional Law: Tort Claims Act: Immunity: Appeal and Error.
     An appellate court must determine whether the constitution and statutes
     provide sovereign immunity by reference to the nature of the underly-
     ing dispute. Where the facts are undisputed, whether an exception to
     immunity under the State Tort Claims Act precludes suit is a question
     of law.
10.	 Tort Claims Act: Federal Acts. Nebraska’s State Tort Claims Act is
     patterned after the Federal Tort Claims Act.
11.	 Tort Claims Act: Police Officers and Sheriffs. The structure and text
     of Neb. Rev. Stat. § 81-8,219(2) (Reissue 2014) demonstrate that the
     broad phrase “any law enforcement officer” covers all law enforcement
     officers, including correctional officers.

  Appeal from the District Court for Lancaster County: K evin
R. McM anaman, Judge. Affirmed.
   Roy J. Rouse, pro se.
   Douglas J. Peterson, Attorney General, and David A. Lopez
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Miller-Lerman, J.
                       NATURE OF CASE
   Roy J. Rouse is an inmate in the custody of the Nebraska
Department of Correctional Services (DCS) who filed suit
against various defendants in the district court for Lancaster
County under the State Tort Claims Act (STCA), alleging that
his personal property was seized and improperly disposed of
by DCS personnel. In an order filed January 12, 2018, the
district court granted all defendants’ motions to dismiss. In its
order, the district court determined that Rouse’s claims against
the individual defendants were barred by qualified immunity.
The district court also determined that the claim against the
State arose with respect to the detention of goods by DCS
personnel who are law enforcement officers and was barred
under Neb. Rev. Stat. § 81-8,219(2) (Reissue 2014), because
the claim was an exception to the STCA’s waiver of sovereign
                              - 1039 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                          ROUSE v. STATE
                        Cite as 301 Neb. 1037

immunity. Section 81-8,219(2) provides that the State does not
waive sovereign immunity for claims “arising with respect to
the assessment or collection of any tax or fee, or the detention
of any goods or merchandise by any law enforcement officer.”
Rouse appeals from the portion of the order which dismissed
his action against the State. We affirm.

                   STATEMENT OF FACTS
   Rouse was an inmate housed at the Lincoln Correctional
Center at the time of the events that gave rise to this action.
Rouse brought this action under the STCA, Neb. Rev. Stat.
§ 81-8,209 et seq. (Reissue 2014). He sued the State and vari-
ous individuals by name. He alleged that when he was assigned
to segregation on July 24, 2015, DCS personnel searched his
cell and seized and negligently disposed of some of his per-
sonal property, including reference books, irreplaceable photo-
graphs, personal items, clothing, a sewing kit, and a compact
disc player. Rouse attached exhibits to his complaint related
to his claimed missing property, including letters denying his
claims made through the grievance procedure, photographs of
the missing items from the evidence file, and an itemized valu-
ation of his property totaling $1,059.87.
   All defendants moved to dismiss Rouse’s claim. In a consol-
idated order, the district court granted all defendants’ motions
to dismiss. The district court determined that the claims against
the individual defendants were barred by qualified immunity.
Rouse does not assign error to this portion of the district
court’s order. The district court next considered whether the
STCA’s detention of goods exception, which provides that the
waiver of immunity under the STCA shall not apply to “‘[a]ny
claim arising with respect to the assessment or collection of
any tax or fee, or the detention of any goods or merchandise
by any law enforcement officer,’” bars Rouse’s claim. See
§ 81-8,219(2).
   The district court found that under § 81-8,219(2), corrections
officers are “‘any law enforcement officers’” and that the loss
                             - 1040 -
          Nebraska Supreme Court A dvance Sheets
                  301 Nebraska R eports
                         ROUSE v. STATE
                       Cite as 301 Neb. 1037

of Rouse’s personal property was a “‘detention of any goods or
merchandise’” by such officers under that statute. The district
court ultimately concluded that Rouse’s claim was within the
exception to the State’s waiver of sovereign immunity under
§ 81-8,219(2) and that thus, his action was barred by sovereign
immunity. The district court dismissed Rouse’s action.
   Rouse appealed.
                ASSIGNMENTS OF ERROR
  Rouse claims, summarized and restated, that the district
court erred when it dismissed his claims against the State.
He specifically contends that the State should not have been
protected by sovereign immunity under the STCA detention of
goods exception, § 81-8,219(2), because DCS personnel who
detained his property are not “law enforcement officer[s].”
                  STANDARDS 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. Amend v. Nebraska Pub. Serv.
Comm., 298 Neb. 617, 905 N.W.2d 551 (2018).
   [2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court
below. Id.
                          ANALYSIS
   This appeal presents the issue of whether exceptions to
the STCA’s limited waiver of immunity in § 81-8,219 relat-
ing to “the detention of any goods or merchandise by any law
enforcement officer” protects the State from Rouse’s claim that
DCS personnel mishandled his inmate property. Rouse con-
tends that the portion of the STCA at issue should not shield
the State from his claims, because DCS personnel are not “law
enforcement officer[s].”
   The applicable exception to the waiver of sovereign immu-
nity is § 81-8,219, which provides: “The State Tort Claims Act
                              - 1041 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                          ROUSE v. STATE
                        Cite as 301 Neb. 1037

shall not apply to: . . . (2) Any claim arising with respect to
the assessment or collection of any tax or fee, or the detention
of any goods or merchandise by any law enforcement offi-
cer.” For purposes of this opinion, we assume without decid-
ing that DCS personnel “detained” Rouse’s property and thus
satisfy § 81-8,219(2)’s “arising with respect to . . . the deten-
tion” requirement.
Statutory Waivers of Immunity and Exceptions
to Waiver Are Construed in Favor
of the Sovereign.
   [3-5] Under the 11th Amendment, a nonconsenting state
is generally immune from suit unless the state has waived its
immunity. U.S. Const. amend. XI; Amend v. Nebraska Pub.
Serv. Comm., supra. Nebraska Const. art. V, § 22, provides:
“The state may sue and be sued, and the Legislature shall pro-
vide by law in what manner and in what courts suits shall be
brought.” The Legislature has provided limited waivers of the
State’s sovereign immunity through the STCA, subject to statu-
tory exceptions. See § 81-8,219. Appellate courts give statutory
language its plain and ordinary meaning and will not resort
to interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. Amend v. Nebraska
Pub. Serv. Comm., supra.
   [6-8] Statutes that purport to waive the State’s protection of
sovereign immunity are strictly construed in favor of the sov-
ereign and against the waiver. Id. To strictly construe against a
waiver of sovereign immunity, we broadly read exceptions to
a waiver of sovereign immunity. See id. A waiver of sovereign
immunity is found only where stated by the most express lan-
guage of a statute or by such overwhelming implication from
the text as will allow no other reasonable construction. Id.
   [9] An appellate court must determine whether the constitu-
tion and statutes provide sovereign immunity by reference to
the nature of the underlying dispute. See id. Where the facts
are undisputed, whether an exception to immunity under the
STCA precludes suit is a question of law. Id.
                              - 1042 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                          ROUSE v. STATE
                        Cite as 301 Neb. 1037

“[A]ny law enforcement officer” in § 81-8,219(2)
Includes DCS Correctional Officers.
   As noted, § 81-8,219(2) provides that the State does not
waive sovereign immunity for claims “arising with respect
to . . . the detention of any goods or merchandise by any law
enforcement officer.” If this exception to the STCA’s limited
waiver of immunity applies to Rouse’s claims, his case was
barred and properly dismissed. Rouse contends that the dis-
trict court erred, because the exception to the State’s waiver
of immunity for acts related to “the detention of any goods or
merchandise by any law enforcement officer” does not apply
to correctional officers. He also refers to other statutes in sup-
port of his contention. In contrast, the State asserts that Rouse’s
action is barred by the language of § 81-8,219(2) and that such
reading is supported by other Nebraska statutes. We agree with
the State that § 81-8,219(2) bars Rouse’s action.
   [10] The leading case relied upon by the district court and
the State interpreted a provision of the Federal Tort Claims Act
which is similar to § 81-8,219(2). See Ali v. Federal Bureau
of Prisons, 552 U.S. 214, 128 S. Ct. 831, 169 L. Ed. 2d 680
(2008). The Federal Tort Claims Act, at 28 U.S.C. § 2680(c)
(2012), provides that sovereign immunity for torts committed
by federal officers shall not apply to “[a]ny claim arising in
respect of the assessment or collection of any tax or customs
duty, or the detention of any goods, merchandise, or other
property by any officer of customs or excise or any other law
enforcement officer . . . .” We have recognized that Nebraska’s
STCA is patterned after the Federal Tort Claims Act. Johnson
v. State, 270 Neb. 316, 700 N.W.2d 620 (2005). Because
Nebraska law is limited, we can look to federeal law for addi-
tional guidance. Id.
   In Ali, a majority of the U.S. Supreme Court held that the
federal statutory exception to the waiver of immunity con-
tained in 28 U.S.C. § 2680(c) for acts related to “the detention
of any goods, merchandise, or other property by any officer
of customs or excise or any other law enforcement officer”
                             - 1043 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                         ROUSE v. STATE
                       Cite as 301 Neb. 1037

was clear and unambiguous and encompassed acts by Federal
Bureau of Prisons officers. The Court reasoned that the phrase
“‘any other law enforcement officer’ . . . suggests a broad
meaning.” Ali v. Federal Bureau of Prisons, 552 U.S. at 218-19
(emphasis in original).
   Rouse distinguishes Ali by noting differences between
Nebraska’s statutory STCA detention of goods provision and
that of its federal counterpart. But he also finds similarities
between the Nebraska and federal statutes. Finally, Rouse pro-
poses that we adopt the reasoning of the dissenting justices in
Ali and urges us to hold that § 81-8,219(2) applies only to law
enforcement officers who detain goods or merchandise as part
of the assessment or collection of taxes or fees. We decline to
adopt the reasoning suggested by Rouse.
   As noted above, we give statutory language its plain and
ordinary meaning and we must broadly read exceptions to
a waiver of sovereign immunity. Amend v. Nebraska Pub.
Serv. Comm., 298 Neb. 617, 905 N.W.2d 551 (2018). Like the
Federal Tort Claims Act, Nebraska’s STCA contains “[n]othing
in the statutory context [which] requires a narrowing con-
struction . . . .” Ali v. Federal Bureau of Prisons, 552 U.S. at
227. To the contrary, we read Nebraska’s exception for “any
law enforcement officer” more broadly than the Federal Tort
Claims Act, which is limited to “any other” law enforcement
officer. Thus, we interpret § 81-8,219(2) as encompassing acts
by DCS personnel.
   [11] We believe the text of § 81-8,219(2) indicates that
the Legislature intended to preserve immunity from claims
arising from the detention of property, and there is no indi-
cation of any intent that immunity from those claims turns
on the type of official enforcing the law. The structure and
text of § 81-8,219(2) demonstrate that the broad phrase “any
law enforcement officer” covers all law enforcement officers,
including correctional officers. Referring to the word “any”
in Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219, 128
S. Ct. 831, 169 L. Ed. 2d 680 (2008), the Court reasoned that
                             - 1044 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                         ROUSE v. STATE
                       Cite as 301 Neb. 1037

read naturally, the word “any” has an expansive meaning that
is “‘“one or some indiscriminately of whatever kind,”’” quot-
ing United States v. Gonzales, 520 U.S. 1, 117 S. Ct. 1032,
137 L. Ed. 2d 132 (1997). We agree with the reasoning in Ali,
and applying it to Nebraska’s statute, we conclude that DCS
personnel are “any law enforcement officer[s]” covered by
the exception to the waiver of sovereign immunity outlined in
§ 81-8,219(2), and therefore, the State remains immune from
claims such as that filed by Rouse. We observe that other
states’ appellate courts have adopted the reasoning in Ali and
have concluded that correctional officers are “any law enforce-
ment officer[s]” under similar state tort claims statutes. See,
e.g., Mason v. Department of Correction, 75 Mass. App. 1111
(2009) (unpublished disposition listed in table of “Summary
Dispositions” at 916 N.E.2d 423).
   For completeness, we note that both Rouse and the State
refer to numerous Nebraska statutes not repeated here as well
as other sources in an effort to convince us of the meaning of
§ 81-8,219(2) in general and “any law enforcement officer” in
particular. None of these authorities are definitive or particu-
larly convincing. Instead, we believe our interpretation of the
language of § 81-8,219(2) itself provides the most coherent
reading of the statute in question.
                        CONCLUSION
   Rouse, an inmate, claimed money damages for property
detained by DCS personnel while he was housed in segre-
gation. Because the DCS personnel are “law enforcement
officer[s]” covered by the exception to the waiver of sover-
eign immunity contained in § 81-8,219(2), the State has not
waived sovereign immunity from Rouse’s claims. The dis-
trict court did not err when it concluded that Rouse’s claims
were barred by the State’s sovereign immunity and dismissed
Rouse’s action.
                                                  A ffirmed.
