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Cole v. Clarke6/3/2003
rately in the "Causes of Action" section of his petition, but in the "Relief Requested" section of his petition, he sought an order restraining the defendants from continuing the "legally invalid act" of enforcing the dental health care policy complained of by Cole. The district court correctly determined that Cole could not bring his suit for alleged negligence by a state employee pursuant to § 25-222 and that his negligence claim was barred by § 81-8,219(1). Accordingly, the district court could not grant either prospective or injunctive relief under § 25-222. Likewise, the district court correctly determined that Cole's petition did not state a cause of action for a claim of equal protection. Therefore, the court could not grant either prospective or injunctive relief under this theory.
We conclude, construing Cole's third amended petition liberally as we must, that Cole did not plead adequate facts to support his causes of action (professional malpractice or negligence and an Equal Protection Clause violation) or to show entitlement to prospective or injunctive relief. Accordingly, the district court did not err in sustaining the amended demurrer and in dismissing Cole's petition.
Default Judgment.
Cole asserts that the district court erred in denying his motion for default judgment against the defendant referenced as "John Doe dental technician." Cole actually filed a motion seeking a default judgment "against each of the Defendants named . . . except [Tewes]." Cole asserts that this motion should have been granted as to "John Doe dental technician" because this individual failed to respond to Cole's petition in any manner. Given the fact that Cole's tort action was barred by the exemption of § 81-8,219(1) and the fact that his petition failed to state facts sufficient to constitute a cause of action, the district court did not err in failing to grant Cole's motion for default judgment.
CONCLUSION
The district court did not err in sustaining the amended demurrer and dismissing Cole's third amended petition or in failing to grant Cole's motion for default judgment.
Affirmed.
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