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Micheal E. obo Avalyn J. v. Health and Human Services

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Wednesday, May 1, 2013

S-12-0812, Micheal E. individually and on behalf of Avalyn J. (Appellant) v. State of Nebraska, Department of Health and Human Services, Joshua McDougall, Sara Jelinek, Kim Hubbard, Lesa Kechley, Susan Larson, Kim Zueter, Individually and in their official capacities

Douglas County, Judge Joseph S. Troia

Attorneys: Amy Sherman (Sherman & Gilner PCLLO) (Appellant) --- John M. Baker (Special Assistant Attorney General)

Civil: Action under 28 U.S.C. § 1983, damages, facial challenge to constitutionality of Neb. Rev. Stat. § 42-263 and Neb. Rev. Stat. § 43-265.

Proceedings below: The trial court held that Micheal did not have a 1983 action and that the Defendants had not waived their sovereign immunity. The Court did find that two statutes were unconstitutional but found that the State, NDHHS, and ultimately the employees were entitled to immunity related to the application of those laws. The Court did not enter an injunction as requested by Micheal.

Issues: The Court erred in (1) granting the Defendants' Motion to Dismiss; (2) finding that the Defendants were shielded from liability on the basis of immunity; (3) failing to find any exception to immunity protection; (4) finding that the Plaintiffs did not allege a violation of their constitutionally protected rights; (5) dismissing the State and the NDHHS from the Fifth and Sixth Causes of Action regarding the constitutionality of Neb. Rev. Stat. 43-263 and 43-265; (6) failing to grant the Motion for Summary Judgment related to the Fifth and Sixth Causes of Action; (7) in failing to enter an injunction; (8) failing to award a judgment to the Plaintiffs when it found that the Plaintiffs were successful in challenging the constitutionality of Neb. Rev. Stat. §§ 43-263 and 43-265.


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