Holmstedt v. York Cty. Jail Supervisor

D uane S. H olmSteDt , appellant , v . Y ork C ountY J ail
S uperviSor ( name unknown ) et al ., appelleeS.
745 N.W.2d 317
Filed February 29, 2008. 	No. S-05-906.
1. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
2. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Service of
Process. When a motion to dismiss raises grounds pursuant to Neb. Ct. R. of
Pldg. in Civ. Actions 12(b)(6) (rev. 2003) and any combination of rule 12(b)(2),
(4), and (5) grounds, the court should consider the rule 12(b)(2), (4), and (5)
grounds first and should then consider the rule 12(b)(6) grounds only if it deter-
mines that it has personal jurisdiction and that process and service of process
were sufficient.
3. Civil Rights: Public Officers and Employees. In order to sue a public official
in his or her individual capacity, a plaintiff in an action pursuant to 42 U.S.C.
§ 1983 (2000) must expressly and unambiguously state so in the complaint;
otherwise, it will be assumed that the defendant is being sued only in his or her
official capacity.
4. ____: ____. In actions pursuant to 42 U.S.C. § 1983 (2000), a suit against
a public employee in his or her official capacity is merely a suit against the
public employer.
Petition for further review from the Court of Appeals, S ieverS
and C aSSel, Judges, and H annon, Judge, Retired, on appeal
thereto from the District Court for York County, alan G. G leSS,
Judge. Judgment of Court of Appeals reversed, and cause
remanded with directions.
Duane S. Holmstedt, pro se.
Charles 	W. 	Campbell, 	of Angle, 	Murphy, 	Valentino 	&
Campbell, P.C., for appellees.
H eaviCan, 	C.J., 	wriGHt, 	C onnollY, 	G errarD, 	S tepHan,
mCC ormaCk, and miller -lerman, JJ.
miller -lerman, J.
NATURE OF CASE
Duane S. Holmstedt filed an action pursuant to 42 U.S.C.
§ 1983 (2000) against the York County jail supervisor, the York
County Sheriff’s Department, Sheriff Dale Radcliff, Lt. Paul
Vrbka, and Deputy Ray Silverstrand (collectively defendants).
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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162 	275 NEbRASkA REPORTS
The district court for York County dismissed the action as to
all defendants pursuant to Neb. Ct. R. of Pldg. in Civ. Actions
12(b) (rev. 2003), subsections (2) (lack of personal jurisdic-
tion), (4) (insufficiency of process), (5) (insufficiency of ser-
vice), and (6) (failure to state claim). Holmstedt appealed to
the Nebraska Court of Appeals, which concluded that the dis-
trict court properly dismissed the action as to the York County
Sheriff’s Department for lack of personal jurisdiction but erred
in dismissing the complaint as to the remaining individual
defendants. Holmstedt v. York Cty. Jail Supervisor, 15 Neb.
App. 893, 739 N.W.2d 449 (2007). We granted the defendants’
petition for further review. We reverse the decision of the Court
of Appeals and remand the cause to the Court of Appeals with
directions to affirm the dismissal as to all defendants.
STATEMENT OF FACTS
The Court of Appeals set forth the facts as follows:
On May 20, 2005, Holmstedt filed a pro se complaint
in the York County District Court against the defen-
dants, which he designated in the caption as follows:
“York County Jail Supervisor, (name unknown) York
County Sheriff’s Department, Sheriff Dale Radcliff, Lt.
Paul Vrbka, Deputy Ray Silverstrand, Defendants.” In the
complaint, which he entitled “Petition,” the allegations
which appear to be relevant to a possible claim against
the defendants are that he was arrested and interrogated
by Radcliff and Vrbka on August 13, 2003. He alleges
with some particularity that he was abused by them on
that day and on later occasions while incarcerated in the
York County jail (apparently awaiting the disposition of
a criminal charge against him). Holmstedt alleges he was
struck, yelled at, deprived of an attorney, and told that
he “had to tell [them] everything.” He also alleges that
Radcliff deprived him of medical care and medication. He
alleges other abuse by Radcliff, Vrbka, and Silverstrand
during subsequent intermittent times he was in the jail.
For purposes of this opinion, we think it is unnecessary to
set forth all of the details of his pro se handwritten com-
plaint. Holmstedt prays that the defendants be charged and

prosecuted for the alleged crimes, that the York County
Sheriff’s Department be ordered to pay him the sum of
$250,000, and that the remaining defendants be ordered to
pay him $25,000 each.
The transcript shows that the defendants were served on
May 23, 2005, by delivery of a copy of the summons and
complaint for each of the named defendants as follows:
on Radcliff, to “Dale E. Radcliff”; on the York County
Sheriff’s Department, to “Dale E. Radcliff, Sheriff of
York County, Nebraska”; on the York County jail super-
visor, to “John Prusia, York County Jail Supervisor”; on
Vrbka, to “Paul M. Vrbka”; and on Silverstrand, to “Ray
Silverstrand a/k/a Gene R. Silverstrand.”
Separate motions to dismiss were filed by counsel for
each of the defendants in the name used in the complaint.
Each motion raised the same grounds for dismissal, that
is, pursuant to rule 12(b)(2), (4), (5), and (6), and all
but the motion of the York County Sheriff’s Department
alleged the complaint was deficient in that it (1) purports
to sue the respective defendant in his official capacity but
the defendant was not served in his official capacity, (2)
fails to state a claim for relief because it fails to allege
that Holmstedt exhausted his administrative remedies as
required by 42 U.S.C. § 1997e(a) (2000), and (3) fails
to state a claim for relief against the defendant acting
in his official capacity pursuant to § 1983. The motion
of the defendant York County Sheriff’s Department dif-
fers in that the first reason stated in its motion to dismiss
was that there is no individual or political subdivision
which may be sued known as the “‘York County Sheriff’s
Department,’” rather than the first reason stated by the
other defendants, as shown above.
The transcript shows a letter from Holmstedt to the
trial judge dated June 4, 2005, and file stamped June 7,
wherein Holmstedt “object[s]” to the motions to dismiss
and then goes on to briefly argue each of the points raised
in the motions. The motions were heard by the district
court on June 24, with Holmstedt appearing by telephone
and the defendants’ attorney appearing in person. At that
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164 	275 NEbRASkA REPORTS
hearing, the defendants’ attorney stated the bases for the
motions to dismiss. Then Holmstedt stated that his brief
had been mailed “yesterday,” and requested a continuance.
The continuance was denied, but the judge stated that he
would not rule until he had received Holmstedt’s brief.
Holmstedt started to read the brief over the telephone;
the judge asked Holmstedt whether he had anything to
say that was not in the brief, and he said no. The judge
then stated that he would rather not listen to Holmstedt
read the brief because he was going to read the brief
several times himself before he ruled on the motion.
Holmstedt stated, “That works.” The hearing was con-
cluded shortly thereafter.
Holmstedt’s brief in opposition to the motions to dis-
miss was dated June 23, 2005. The brief was received
by the district court clerk on June 29, but was not filed
because the brief was considered Holmstedt’s written argu-
ment to the court. On July 12, the district court entered
an order which stated, in its entirety, “Motion to dismiss
sustained in all bases. Complaint dismissed.”
Holmstedt v. York Cty. Jail Supervisor, 15 Neb. App. 893, 895-
97, 739 N.W.2d 449, 455-56 (2007).
Holmstedt appealed to the Court of Appeals. He asserted,
inter alia, that the district court erred in dismissing his com-
plaint as to each of the defendants. With regard to the defen-
dant “York County Sheriff’s Department,” the Court of Appeals
determined that the complaint contained no allegations that
would support a finding that such an entity could be sued.
The Court of Appeals noted that while “York County” was an
entity that could be sued, if it was Holmstedt’s intent to sue a
department of York County, suit was required to be brought in
the proper name of the county. The Court of Appeals therefore
concluded that the district court properly sustained the motion
to dismiss the “York County Sheriff’s Department” under rule
12(b)(2), (4), and (5). Holmstedt, 15 Neb. App. at 905, 739
N.W.2d at 461.
With regard to the remaining defendants, who were all indi-
viduals, the Court of Appeals found it necessary to determine
the capacity in which such individuals were being sued in

order to determine the jurisdiction-related issues. The Court of
Appeals stated that under § 1983, public servants may be sued
in their official capacity, in their individual capacity, or both.
The Court of Appeals noted, however, that federal circuit courts
disagree on the proper means of determining whether an action
is pleaded as one suing a person in his or her official capacity
or as one alleging individual liability. The Court of Appeals
cited Moore v. City of Harriman, 272 F.3d 769 (6th Cir. 2001),
in which the Court of Appeals for the Sixth Circuit stated that
the majority of circuits followed a “course of proceedings” test
which considers factors such as the nature of the plaintiff’s
claims, requests for compensatory or punitive damages, subse-
quent pleadings, and the nature of any defenses, such as quali-
fied immunity, raised in response to the claim, which defenses
would indicate whether the defendant had actual knowledge
of the potential for individual liability. The Court of Appeals
for the Sixth Circuit noted that only two circuits deviated from
the “course of proceedings” test. The Court of Appeals for the
Eighth Circuit has held that in order to sue a public official in
his or her individual capacity, “a plaintiff must expressly and
unambiguously state so in the pleadings, otherwise, it will be
assumed that the defendant is sued only in his or her official
capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531,
535 (8th Cir. 1999). The Court of Appeals for the Ninth Circuit,
by contrast, has held that “[w]here state officials are named in
a complaint which seeks damages under 42 U.S.C. § 1983, it
is presumed that the officials are being sued in their individual
capacities.” Shoshone-Bannock Tribes v. Fish & Game Com’n,
Idaho, 42 F.3d 1278, 1284 (9th Cir. 1994).
because the Nebraska Supreme Court had not ruled on
which method should be used to determine the capacity in
which a person is sued under § 1983 in Nebraska state courts,
the Court of Appeals attempted to determine how this court
would decide the issue and took guidance from federal juris-
prudence. Although noting that the Eighth Circuit approach
“displays the virtues of simplicity and certainty,” the Court of
Appeals concluded that this court would follow the majority of
circuits and adopt the “course of proceedings” test. Holmstedt,
15 Neb. App. at 903, 739 N.W.2d at 460.
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166 	275 NEbRASkA REPORTS
Applying the “course of proceedings” test, the Court of
Appeals noted that Holmstedt conceded in his brief that he
had not specified whether the individual defendants were being
sued in their official capacities or in their individual capacities.
because the case was in its early stages, the Court of Appeals
noted that it lacked information regarding some of the factors
in the “course of proceedings” test, such as defenses raised in
an answer and subsequent pleadings by the plaintiff. However,
the Court of Appeals determined that Holmstedt had sued the
individual defendants in their individual capacities because the
complaint alleged actions by identified individuals and did not
allege violations related to actions taken pursuant to policy,
ordinance, regulation, or custom which would have suggested
that the individuals were being sued for actions taken in their
official capacities. Holmstedt v. York Cty. Jail Supervisor, 15
Neb. App. 893, 739 N.W.2d 449 (2007).
Having determined that the individual defendants were sued
in their individual capacities, the Court of Appeals further
determined that the record showed proper service of process
on defendants Radcliff, Vrbka, and Silverstrand. With respect
to the defendant “York County Jail Supervisor,” the Court of
Appeals noted that Neb. Rev. Stat. § 25-321 (Cum. Supp. 2006)
allows a plaintiff to designate a defendant by description when
a name is unknown. The Court of Appeals determined that
the summons for “‘York County Jail Supervisor’” was prop-
erly served on “‘John Prusia, York County Jail Supervisor.’”
Holmstedt, 15 Neb. App. at 904, 739 N.W.2d at 461. Having
found no deficiency regarding personal jurisdiction, process,
or service of process with respect to the individual defendants,
the Court of Appeals concluded that the district court erred in
sustaining the individual defendants’ motions to dismiss under
rule 12(b)(2), (4), and (5). Holmstedt, supra.
The Court of Appeals then considered the rule 12(b)(6) chal-
lenges raised by the individual defendants. With respect to the
defendants’ argument that Holmstedt failed to exhaust adminis-
trative remedies, the Court of Appeals determined that failure
to exhaust remedies was properly categorized as an affirmative

defense and concluded that any such failure could be addressed
by procedural devices other than a motion to dismiss and that
dismissal at this stage was not warranted based on a failure to
plead exhaustion. Holmstedt, supra. The Court of Appeals fur-
ther concluded that as to each individual defendant, Holmstedt
had alleged “facts establishing conduct by a person acting under
color of state law, which conduct deprived Holmstedt of rights,
privileges, or immunities secured by the Constitution and laws
of the United States.” 15 Neb. App. at 907, 739 N.W.2d at 462.
The Court of Appeals concluded that the district court had erred
in granting the individual defendants’ motions to dismiss under
rule 12(b)(6).
because it concluded that the district court had erred in
granting the individual defendants’ motions to dismiss under
rule 12(b)(2), (4), (5), and (6), the Court of Appeals reversed
the dismissal of Holmstedt’s complaint as to such defendants.
As noted above, the Court of Appeals affirmed the dismissal of
the “York County Sheriff’s Department” and such ruling is not
challenged or discussed on further review.
We granted the defendants’ petition for further review.
ASSIGNMENTS OF ERROR
The defendants assert that the Court of Appeals erred in (1)
using the “course of proceedings” test rather than the Eighth
Circuit’s approach to determine whether the defendants were
sued in their individual or in their official capacities, (2) fail-
ing to affirm the dismissal as to the individual defendants in
their official capacities for lack of personal jurisdiction, and
(3) holding that the complaint stated a claim under § 1983
against the individual defendants in their individual and in their
official capacities.
STANDARD OF REVIEW
[1] On a question of law, an appellate court is obligated to
reach a conclusion independent of the determination reached by
the court below. State v. McCulloch, 274 Neb. 636, 742 N.W.2d
727 (2007).
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ANALYSIS
Court Should Consider Motions to Dismiss Under Rule
12(b)(2), (4), and (5) Before Considering Whether
Complaint Fails to State a Cause of Action
Pursuant to Rule 12(b)(6).
We note first that the defendants moved for dismissal based
on rule 12(b)(2), (4), (5), and (6) and that in dismissing the
action as to all defendants, the district court stated the motions
were “sustained in all bases.” Rule 12(b) provides that a party
may move to dismiss an action on various bases including, inter
alia, the following subsections: (2) lack of jurisdiction over the
person, (4) insufficiency of process, (5) insufficiency of service
of process, and (6) failure to state a claim upon which relief
may be granted.
[2] With respect to the various bases upon which the defend-
ants moved for dismissal, the Court of Appeals noted this
court’s opinion in Anderson v. Wells Fargo Fin. Accept., 269
Neb. 595, 600, 694 N.W.2d 625, 629-30 (2005), in which we
stated that “when a motion to dismiss raises both rule 12(b)(1)
[subject matter jurisdiction] and [rule 12(b)](6) grounds, the
court should consider the rule 12(b)(1) grounds first and should
then consider the rule 12(b)(6) grounds only if it determines
that it has subject matter jurisdiction.” Extrapolating from
Anderson and relying on federal case law, the Court of Appeals
determined that a similar approach applied here and that issues
of personal jurisdiction, process, and service of process, raised
pursuant to rule 12(b)(2), (4), and (5), should have been
determined before the district court considered whether the
complaint stated a claim under rule 12(b)(6). We agree with
the Court of Appeals’ determination and conclude that when
a motion to dismiss raises rule 12(b)(6) grounds and any
combination of rule 12(b)(2), (4), and (5) grounds, the court
should consider the rule 12(b)(2), (4), and (5) grounds first
and should then consider the rule 12(b)(6) grounds only if it
determines that it has personal jurisdiction and that process
and service of process were sufficient. See Sinochem Int’l Co.
v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 127 S. Ct.
1184, 167 L. Ed. 2d 15 (2007) (federal court generally may
not rule on merits of case without first determining that it

has subject matter jurisdiction and personal jurisdiction). See,
also, Sucampo Pharmaceuticals v. Astellas Pharma, 471 F.3d
544, 548 (4th Cir. 2006) (“dismissal of a case on an issue relat-
ing to the merits of the dispute, such as failure to state a claim,
is improper without resolving threshold issues of jurisdiction,
including personal jurisdiction”).
The Rule Followed by the Court of Appeals for the Eighth
Circuit, Rather Than “Course of Proceedings” Test, Should
Be Used in Nebraska Courts to Determine Whether
Plaintiff in § 1983 Action Is Suing Defendant in
Individual or in Official Capacity.
The defendants assert that the Court of Appeals erred in
using the “course of proceedings” test rather than the Eighth
Circuit’s rule to determine whether the individual defendants
were sued in their individual or in their official capacity or both.
We agree that the rule followed by the Court of Appeals for the
Eighth Circuit should have been followed.
The Court of Appeals for the Eighth Circuit has held that in
order to sue a public official in his or her individual capacity,
“a plaintiff must expressly and unambiguously state so in the
pleadings, otherwise, it will be assumed that the defendant is
sued only in his or her official capacity.” Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). See, also,
Baker v. Chisom, 501 F.3d 920 (8th Cir. 2007) (stating that
requiring express statement that defendant is sued in individual
capacity is consistent with Federal Rules of Civil Procedure). In
Johnson, the Eighth Circuit Court noted that in § 1983 actions,
“liability exposes public servants to civil liability and damages
[and that] only an express statement that they are being sued in
their individual capacity will suffice to give proper notice to the
defendants.” 172 F.3d at 535. The Eighth Circuit has advised
that in order to meet the pleading requirement in § 1983
actions, “litigants wishing to sue government agents in both
capacities should simply use the following language: ‘Plaintiff
sues each and all defendants in both their individual and official
capacities.’” Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989).
Such language “guarantees that the defendant receives prompt
notice of his or her potential personal liability.” Id. The Eighth
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170 	275 NEbRASkA REPORTS
Circuit has stressed that the statement of capacity must be clear
and that “[n]either a cryptic hint in a plaintiff’s complaint nor
a statement made in response to a motion to dismiss is suffi-
cient.” Egerdahl v. Hibbing Community College, 72 F.3d 615,
620 (8th Cir. 1995).
[3] We believe that the rule followed by the Court of Appeals
for the Eighth Circuit is reasonable and addresses a valid con-
cern regarding providing sufficient notice to individual defend-
ants, especially where a legal action could result in personal
liability. The Eighth Circuit rule is simple for a court to apply,
and it is not difficult for a plaintiff to comply with the rule.
Federal district courts in Nebraska follow the Eighth Circuit
rule. We are not aware of Nebraska state jurisprudence which
would preclude following the Eighth Circuit rule in state court.
Furthermore, we think that consistency between state courts
and federal courts in Nebraska on this issue is prudent. A
plaintiff in Nebraska is permitted to bring his or her § 1983
action either in a Nebraska state court or in a federal district
court in Nebraska. To the extent it is feasible and consistent
with applicable laws and rules of procedure, we believe such
a plaintiff should be subject to similar pleading rules whether
the § 1983 action is brought in state court or in federal court,
thereby obviating the possibility of different outcomes during
the pleading stage of the action. In summary, the Eighth Circuit
Court has adopted the rule that in order to sue a public official
in his or her individual capacity, a plaintiff in a § 1983 action
must expressly and unambiguously state so in the complaint;
otherwise, it will be assumed that the defendant is being sued
only in his or her official capacity. because such rule is reason-
able and does not appear to conflict with Nebraska laws or rules
of procedure, we conclude that such rule should be followed in
Nebraska state courts.
Applying the Eighth Circuit rule, we review the complaint
and conclude that the individual defendants in the present
case were not sued in their individual capacities but were sued
only in their official capacities. Holmstedt’s complaint does
not expressly and unambiguously state that the individuals
were sued in their individual capacities, and under the Eighth
Circuit rule, it is therefore assumed, and we conclude, that the

individuals were sued only in their official capacities. The con-
trary ruling of the Court of Appeals is reversed.
Holmstedt Failed to Properly Serve the Individual
Defendants in Their Official Capacities.
Having concluded that Holmstedt sued the individual defend-
ants solely in their official capacities, we consider the defend-
ants’ motions to dismiss pursuant to rule 12(b)(2), (4), and (5).
We conclude that Holmstedt failed to properly serve the defend-
ants in their official capacities and that therefore, the district
court did not err in granting the motions to dismiss pursuant to
rule 12(b)(2), (4), and (5). The reversal of the district court’s
order by the Court of Appeals was error and therefore must
be reversed.
[4] The individuals named in this action were public servants
employed by York County. In § 1983 actions, a “suit against
a public employee in his or her official capacity is merely a
suit against the public employer.” Johnson v. Outboard Marine
Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citing Kentucky v.
Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114
(1985)). Therefore, this suit against employees of York County
in their official capacities was a suit against York County.
Neb. Rev. Stat. § 25-510.02 (Reissue 1995) provides the
proper procedure for service on the State and other political
subdivisions. Subsection (2) provides, “Any county, city, or
village of this state may be served by personal, residence, or
certified mail service upon the chief executive officer, or clerk.”
In order to sue the individuals in their official capacities, and
thereby to sue York County, Holmstedt was required to make
service on York County in compliance with § 25-510.02(2).
The statute required service on the chief executive officer or the
clerk of the county, rather than on the named county employ-
ees. Holmstedt served the named employees, rather than the
appropriate official of York County. Holmstedt therefore failed
to properly serve York County and by extension failed to serve
the individuals in their official capacities.
because Holmstedt did not properly serve the individuals in
their official capacities, the district court did not gain personal
jurisdiction over such defendants. See, similarly, Nebraska
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172 	275 NEbRASkA REPORTS
Methodist Hospital Sys. v. Dept. of Health, 249 Neb. 405,
543 N.W.2d 466 (1996) (in order to vest court with personal
jurisdiction over State in case arising under Administrative
Procedure Act, plaintiff must serve summons upon Attorney
General). Therefore, we conclude that the district court properly
granted the individual defendants’ motions to dismiss pursuant
to rule 12(b)(2), (4), and (5) and that the Court of Appeals erred
when it reversed the dismissal. because dismissal was proper
under these subsections, we need not consider the assignment
of error regarding dismissal pursuant to rule 12(b)(6).
CONCLUSION
The Court of Appeals affirmed the district court’s dismissal of
the action as to the York County Sheriff’s Department pursuant
to rule 12(b)(2), (4), and (5), and Holmstedt did not seek fur-
ther review of such affirmance. Thus, the York County Sheriff’s
Department stands dismissed. On further review, we conclude
that the individual defendants were sued only in their official
capacities and that the district court did not gain personal
jurisdiction over such defendants because Holmstedt failed to
properly serve them in their official capacities. because we
conclude that the district court properly dismissed the action as
to the individual defendants pursuant to rule 12(b)(2), (4), and
(5), we conclude that the Court of Appeals erred in reversing
the order of dismissal as to the individual defendants, and we
therefore reverse the Court of Appeals’ order. We remand the
cause to the Court of Appeals with directions to affirm the dis-
trict court’s dismissal of the action as to all defendants.
reverSeD anD remanDeD witH DireCtionS.