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SUPREME COURT OF NEBRASKA
Cole
v.
Isherwood
No. S-00-665.
264 Neb. 985; 653 N.W.2d 821
December 6, 2002, Filed
Stephan, J.
Frankie Levi Cole, an inmate,
brought an action against various prison employees asserting claims for
personal injury and property loss. Defendants successfully demurred to Cole's
third amended petition on grounds that the district court lacked jurisdiction
and that the petition failed to state a cause of action. The action was
dismissed. The Nebraska Court of Appeals affirmed the dismissal, holding the
district court lacked subject matter jurisdiction. Cole v. Isherwood, 11 Neb.
App. 44, 642 N.W.2d 524 (2002). We granted Cole's petition for further review.
I. FACTS
The facts in this case are fully
set forth in the opinion of the Court of Appeals and are summarized here. In
his original petition filed on July 2, 1999, Cole alleged that defendants
refused his request to be transferred to a cell with a nonsmoking cellmate and
denied him proper medical attention after two separate altercations with his
cellmate. After the first altercation,
Cole required surgery on his right thumb, and after the second, he required
stitches near his left eye.
Defendants successfully demurred to Cole's
initial petition, as well as his first and second amended petitions. Cole then
filed his operative third amended petition, which alleges tort claims and
violations of 42 U.S.C. § 1983 (2000) and is brought against defendants in
their individual capacities for monetary damages and in their official
capacities to the extent that prospective injunctive relief might apply.
Defendants filed a demurrer asserting that the court lacked jurisdiction over
Cole's claims and their persons and that the petition did not state a cause of
action. After conducting a telephonic hearing, the district court sustained the
demurrer on all grounds and dismissed the petition without articulating its
rationale. The court found that it was reasonably unlikely that Cole could
amend to correct the grounds stated in the demurrer. [*987]
The Court of Appeals affirmed in
a published opinion. Cole v. Isherwood,
supra. The court found that Cole's claims were subject to the Nebraska State
Tort Claims Act, Neb. Rev. Stat. § 81-8,209 et seq. (Reissue 1996), because his
allegations were brought against state employees based upon alleged actions
within the scope of their employment. The State Tort Claims Act provides in
relevant part that "no suit shall be permitted . . . unless the State
Claims Board has made final disposition of the claim." § 81-8,213. The court noted that Cole
filed his initial suit in district court on July 2, 1999. In his third amended
petition filed April 3, 2000, Cole alleged that he filed his claim with the
State Claims Board on March 31, 1999, and that it was denied on August 11,
1999. Cole v. Isherwood, supra. Based
upon these facts, the Court of Appeals determined that the district court
properly granted the demurrer because when "Cole filed his petition prior
to the denial of his claims by the State Claims Board, the district court
lacked jurisdiction to hear Cole's claim under the Act." Id. 11 Neb. App. at 50, 642 N.W.2d at 530.
The Court of Appeals noted that
a question remained as to whether Cole had a valid cause of action under §
1983. Citing Pratt v. Clarke, 258 258
Neb. 402, 604 N.W.2d 822 (1999), the court found that when a prisoner has
requested both monetary [**825] damages and injunctive relief with respect to
prison conditions under § 1983, the Prison Litigation Reform Act requires that
the prisoner exhaust his or her administrative remedies before bringing the
action. The Court of Appeals determined that Cole failed to exhaust his
remedies because he filed his State Tort Claims Act claim in an untimely
manner, and concluded that "therefore, the district court lacked
jurisdiction to hear Cole's § 1983 claims and correctly granted the defendants'
demurrer . . . ." Cole v. Isherwood , 11 Neb. App. 44, 51, 642 N.W.2d 524,
530 (2002).
II.
ASSIGNMENTS OF ERROR
In
his petition for further review, Cole asserts that the Court of Appeals erred
as a matter of law (1) in finding that the district court lacked jurisdiction
because final determination by the State Claims Board had not been made prior
to initiation of the district court action and (2) in finding that the district
court [*988] lacked jurisdiction to hear the § 1983 action because
administrative remedies had not been exhausted.
III. STANDARD OF REVIEW
[1]
In reviewing an order sustaining a demurrer, an appellate court accepts the
truth of the facts which are well pled, together with the proper and reasonable
inferences of law and fact which may be drawn therefrom, but does not accept
the conclusions of the pleader. Regier v. Good Samaritan Hosp., ante p. 660, 264
Neb. 660, 651 N.W.2d 210 (2002); Shirley v. Neth, ante p. 138, 264 Neb. 138,
646 N.W.2d 587 (2002).
IV.
ANALYSIS
1.
Subject Matter Jurisdiction
Cole argues that the Court of Appeals erred in holding that the district
court lacked subject matter jurisdiction over his claims. He generally contends
that the filing of a suit in district court prior to final disposition of a
claim filed with the State Tort Claims Board does not deprive the district
court of subject matter jurisdiction. He further argues that exhaustion of
administrative remedies is not a jurisdictional component of a § 1983 action.
(a)
State Tort Claims Act
The
relevant portion of the State Tort Claims Act provides that no suit can be
brought in district court "unless the State Claims Board has made final
disposition of the claim." § 81-8,213. Final disposition occurs either
when the claims board decides the claim or when the claim is withdrawn. See id.
The statute specifically states, however, that a claim may be withdrawn only if
the board has not acted upon the claim within 6 months. Id. From the face of
the operative third amended petition, it is apparent that Cole's suit was filed
in the district court less than 6 months after the claim was submitted to the
claims board and prior to final disposition by that board.
[2]
Cole relies upon cases interpreting a separate but similar provision in the Political
Subdivisions Tort Claims Act, Neb. Rev. Stat. § 13-901 et seq. (Reissue 1997).
See, Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001); Millman v. County
of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990). In Keller and Millman, we held
that the failure to file or present a claim to the appropriate [*989] political
subdivision did not deprive the district court of subject matter jurisdiction
Id. See § 13-905. Generally, provisions in the Political Subdivisions Tort
Claims Act should be construed in harmony with similar provisions in the State
Tort Claims Act. Jasa v. Douglas County, 244 Neb. 944, 510 N.W.2d 281 (1994).
The [**826] provisions in both acts requiring the presentment of claims prior
to initiation of actions in the district court are nearly identical. Compare §
81-8,212 with § 13-905 (requiring that claims "shall be filed").
Thus, the rule that the filing or presentment of a claim is not a
jurisdictional prerequisite to commencement of suit applies to the State Tort
Claims Act, as well as the Political Subdivision Tort Claims Act.
This rule, however, does not fully resolve the question of subject
matter jurisdiction in this case. In both Keller and Millman, the plaintiff
wholly failed to file a claim with the applicable governing board. See §§
81-8,212 and 13-905. In this case, the third amended petition alleges that Cole
presented his initial claim to the board on March 31, 1999, thus complying with
the initial presentment provision in the State Tort Claims Act. See § 81-8,212.
Cole, however, filed suit in the
district court on July 2, although the claims board did not finally deny his
claim until August 11.
These facts meet the initial presentment requirement of § 81-8,212 but
conflict with the requirement of § 81-8,213 that no suit can be brought in
district court "unless the State Claims Board has made final disposition
of the claim." The issue presented is whether the reasoning of Keller and
Millman applies to these facts. We conclude that it does.
[3,4] Subject matter jurisdiction is the power of a tribunal to hear and
determine a case of the general class or category to which the proceedings in
question belong and to deal with the general subject matter involved. Hunt v. Trackwell, 262 Neb. 688, 635 N.W.2d
106 (2001); Falotico v. Grant Cty. Bd. of Equal., 262 Neb. 292, 631 N.W.2d 492
(2001). The district court has exclusive subject matter jurisdiction over suits
under the State Tort Claims Act pursuant to § 81-8,214. The requirements of §
81-8,213, like the requirements of § 81-8,212, are simply statutory conditions
that a plaintiff must follow prior to instigating suit in district court. As we
have noted:
[*990]
"Statutory conditions or conditions
precedent have nothing to do with subject matter jurisdiction of [the trial
court]. [Citations omitted.] They deal only with the appropriate conditions set
by the legislature as a prerequisite for commencing or maintaining an action.
Subject matter jurisdiction is conferred on the [trial court] by the constitution.
[Citation omitted.] Whether or not a proper claim has been filed, the [trial
court] has jurisdiction of the subject matter."
Millman v. County of Butler, 235 Neb. 915,
922, 458 N.W.2d 207, 212 (1990), quoting Figgs v. City of Milwaukee, 121 Wis.
2d 44, 357 N.W.2d 548 (1984).
In
this case, the statutory condition requiring final disposition by the board
prior to instigation of a suit is analogous to the statutory condition
requiring the initial presentment of a claim to the Board. In Chicago Lumber
Co. v. School Dist. No. 71, 227 Neb. 355, 368-69, 417 N.W.2d 757, 766 (1988),
we explained the purpose or function of requiring an initial claim against a
governing board:
The written claim required by [the Political
Subdivisions Tort Claims Act] notifies a political subdivision concerning
possible liability for its relatively recent act or omission, provides an
opportunity for the political subdivision to investigate and obtain information
about its allegedly tortious conduct, and enables the political subdivision to
decide whether to pay the claimant's demand or defend the litigation predicated
on the claim made.
[**827] Summarized, the Political
Subdivisions Tort Claims Act "affords a governmental subdivision a
pre-action opportunity, or a period before commencement of a lawsuit, to
examine the merits of a tort claim and possibly avoid the expense, time, and
varied but frequent rigors of litigation to dispose of a claim." Millman
v. County of Butler, 235 Neb. at 925, 458 N.W.2d at 214.
This reasoning applies equally
to the final disposition requirement in the State Tort Claims Act. Like the
requirement of the initial filing of a claim, the final disposition requirement
is simply a statutory procedural requirement enacted to benefit the State
entity being sued by allowing it an opportunity to adequately examine and
investigate the claim prior to commencement of a lawsuit. Thus, although filing a lawsuit prior to final
disposition [*991] of the claim by the claims board violates the statutory
requirement of § 81-8,213, it does not deprive the district court of its
general subject matter jurisdiction to hear the case. See Millman v. County of
Butler, supra.
[5]
The only remaining question is whether the filing of the claim with the board
vested the board with subject matter jurisdiction so that the district court
could not exercise its general subject matter jurisdiction prior to resolution
of the claim. Generally, when subject matter jurisdiction is vested in one
judicial tribunal, it cannot simultaneously be exercised in another. See Nebraska
Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001). This case, however,
does not involve two judicial tribunals. According to § 81-8,211, the State
Claims Board, acting on behalf of the State, has authority to "consider,
ascertain, adjust, compromise, settle, determine, and allow any tort
claim." The plain language of the statute reveals that the claims board is
not acting in a judicial manner, but is merely representing the State, one of
the parties to the dispute. The filing of a claim with the board therefore
cannot divest the district court of its subject matter jurisdiction to hear a
tort claim.
[6]
In summary, we hold that the filing requirements set forth in § 81-8,212 and
the final disposition requirements set forth in § 81-8,213 of the State Tort
Claims Act are conditions precedent to the commencement of suit, but are not
jurisdictional prerequisites for the adjudication of a tort claim against the
State. Accordingly, the Court of Appeals erred in concluding that the district
court lacked subject matter jurisdiction to determine Cole's tort claims under
the State Tort Claims Act. While defendants may assert an affirmative defense alleging
Cole's failure to comply with § 81-8,213, such a defense is not jurisdictional
in nature and therefore was not properly raised by defendants' demurrer. See Neb.
Rev. Stat. § 25-806(1) (Reissue 1995).
(b)
42 U.S.C. § 1983
The
Court of Appeals also concluded that Cole's failure to exhaust his
administrative remedies under the State Tort Claims Act caused the district
court to lack subject matter jurisdiction to hear his § 1983 claims. [*992]
In
reaching its conclusion, the Court of Appeals relied upon our decision in Pratt
v. Clarke, 258 258 Neb. 402, 604
N.W.2d 822 (1999). In Pratt , a prisoner filed a § 1983 action alleging that
prison employees were conspiring to deprive him of his rights under the U.S.
Constitution. The prisoner sought both injunctive and monetary relief. The
defendant prison employees demurred to the petition, alleging, inter alia, that
it failed to state a cause of action and that the district court did not have
subject matter jurisdiction.
[**828] In Pratt, we recognized that the Prison Litigation Reform Act
(hereinafter PLRA), adopted in 1996, requires prisoners to exhaust administrative
remedies prior to filing actions under § 1983 or any federal law. We found that
Pratt had a number of administrative remedies available to him which he had not
exhausted prior to filing his § 1983 action. Id., citing Neb. Rev. Stat. §§
83-4,111 and 83-4,135 through 83-4,139 (Reissue 1999) and 68 Neb. Admin. Code,
ch. 2 (1994). After examining the available administrative prison grievance
procedures, we stated:
We note that other remedies are not
precluded. In particular, 68 Neb. Admin. Code, ch. 2, § 005.01 (1994), stated:
"Claims against the Department involving miscellaneous or tort claims for
money damages may be filed pursuant to the State Tort Claims Act." Thus,
prisoners in Nebraska must adhere to and exhaust these specific provisions
before bringing a § 1983 claim.
(Emphasis supplied.) Pratt v. Clarke, 258 Neb. at 407, 604 N.W.2d at
826. Our holding in Pratt clearly required a prisoner to exhaust his or her
administrative remedies under the State Tort Claims Act prior to bringing a §
1983 action. Because Pratt failed to comply with the PLRA by exhausting his
administrative remedies, we concluded that the district court lacked subject
matter jurisdiction to hear his § 1983 claim.
Since Pratt was decided, however, the Eighth Circuit has held that a
prisoner's failure to exhaust administrative remedies prior to bringing a §
1983 action does not deprive a court of subject matter jurisdiction. Chelette
v. Harris, 229 F.3d 684 (8th Cir. 2000). The court in Chelette reasoned that the
applicable provisions of the PLRA, codified at 42 U.S.C. § 1997e (2000), did
not contain the "'sweeping and direct'" language [*993] necessary to
impose a jurisdictional requirement of exhaustion of administrative remedies. 229
F.3d at 687. See § 1997e(a). The court noted that this conclusion was
reinforced by other provisions of § 1997e which permit a court to evaluate and
dismiss a claim on the ground that it lacks substantive merit even when
administrative remedies have not been exhausted. Similar conclusions have been
reached by other federal circuit courts.
Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000); Rumbles v. Hill, 182 F.3d
1064 (9th Cir. 1999); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532
(7th Cir. 1999); Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); Wright v.
Morris, 111 F.3d 414 (6th Cir. 1997).
[7] We find this federal
authority persuasive and therefore conclude that exhaustion of administrative
remedies is not a jurisdictional prerequisite to the commencement of an action
pursuant to § 1983. Rather, a prisoner's failure to exhaust administrative
remedies is an affirmative defense which may be raised in a § 1983 action. To
the extent that Pratt v. Clarke, 258
258 Neb. 402, 604 N.W.2d 822 (1999), held that exhaustion of administrative
remedies is a jurisdictional component of a § 1983 action, it is overruled.
Because we have now determined that exhaustion of administrative remedies is
not a jurisdictional component of a § 1983 action, the Court of Appeals was also
in error in concluding that the district court lacked subject matter
jurisdiction over the § 1983 claims due to Cole's failure to exhaust
administrative remedies.
2.
Failure to State Cause of Action
The
district court also sustained defendants' demurrer on the ground that Cole's
petition failed to state a cause of action. Although Cole assigned this
disposition as error, the Court of Appeals did not reach the issue because it
upheld the sustaining of the demurrer based on lack of subject [**829] matter
jurisdiction. Because we disagree with the Court of Appeals on this issue, we
must examine whether the district court nevertheless properly sustained the
demurrer. See Folgers Architects v. Kerns, 262 Neb. 530, 633 N.W.2d 114 (2001)
(this court upon granting further review may consider assignments of error
Court of Appeals did not reach).
[*994] [8] A cause of action is judicial protection of one's recognized right or interest, when another, owing a corresponding duty not to invade or violate such right or interest, has caused a breach of that duty. Millman v. County of Butler, 235 Neb. 915, 458 N.W.2d 207 (1990). As noted, we determined in Millman that the filing or presentment of a claim under the Political Subdivisions Tort Claims Act is not a substantive element of a plaintiff's recovery in a negligence action. Instead, plaintiff's noncompliance with the condition precedent is an affirmative defense that may be raised by the defendant. For the reasons stated in the previous discussion, the final disposition requirement of the State Tort Claims Act is similarly only a condition precedent to the filing of a suit and is not a substantive element of the plaintiff's tort claim. In addition, we agree with those federal courts that have concluded that exhaustion of administrative remedies is merely a condition precedent to the filing of a § 1983 claim and not an element of such claim. See, Chelette v. Harris, 229 F.3d 684 (8th Cir. 2000); Underwood v. Wilson, supra. Therefore, the demurrer was not properly sustained on the ground that the petition failed to state a cause of action, and the Court of Appeals erred in affirming the sustaining of the demurrer and dismissal of the case.
3.
Personal Jurisdiction
As
an alternative justification for the dismissal of Cole's action, defendants
argue that they were not properly served. The record does not disclose the
manner in which service was obtained, and the issue was not specifically addressed
by either the district court or the Court of Appeals. Accordingly, we do not
address it.
V.
CONCLUSION
For the foregoing reasons, we
conclude that the Court of Appeals erred in affirming the dismissal of this
action. We reverse the decision and remand the cause to the Court of Appeals
with directions to reverse the judgment of the district court and remand the
cause for further proceedings consistent with this opinion.
Reversed and remanded with directions.
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