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Cole v. Isherwood12/6/2002
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.
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 " o 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. 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 Neb. 402, 604 N.W.2d 822 (1999), the court found that when a prisoner has requested both monetary 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 " herefore, the district court lacked jurisdiction to hear Cole's § 1983 cl
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