CourtListener 9456876

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135 Nev., Advance Opinion &
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

TEDDIE C. CRAIG, No. 75050-COA
Appellant,
vs.
cr,
DR. DONNELLY; NURSE
BALLANTYNE; NURSE NANCY;
NURSE DONNELLY; AND SGT.
CHAPPY,
Respondents.

Appeal from a district court order dismissing a civil rights and
torts action. Eleventh Judicial District Court, Pershing County; Jim C.
Shirley, Judge.
Affirmed in part, reversed in part, and remanded.

Teddie C. Craig, Carson City,
in Pro Se.

Aaron Ford, Attorney General, and Frank A. Toddre II, Senior Deputy
Attorney General, Carson City,
for Respondents.

BEFORE DOUGLAS, A.C.J., TAO and GIBBONS, JJ.

OPINION
PER CURIAM:
In this appeal, we consider whether a plaintiff must comply
with the jurisdictional naming requirement set forth in NRS 41.031 and
NRS 41.0337 in order to properly proceed with civil rights claims brought
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pursuant to 42 U.S.C. § 1983. NRS 41.031 and NRS 41.0337 require
plaintiffs bringing state tort claims against the State of Nevada and state
employees to comply with certain requirements—particularly, naming the
State as a party to the action—in order to properly invoke the State's waiver
of sovereign immunity. Under 42 U.S.C. § 1983, plaintiffs may bring claims
for damages against any person who, under color of state law, deprives the
plaintiff of his or her civil rights. And it is well established that the State
is not considered a "person" for the purposes of bringing a § 1983 claim;
thus, such claims cannot be maintained against the State.
At issue here is how NRS 41.031 and NRS 41.0337's
requirement that the State be named as a party to invoke a waiver of
Nevada's sovereign immunity operates when a plaintiff brings an action
against state employees pursuant to both NRS Chapter 41 and 42 U.S.C.
§ 1983. We hold that, while a plaintiff must name the State as a party to
any state tort claims in order to comply with NRS 41.031 and NRS 41.0337,
this statutory requirement does not apply to 42 U.S.C. § 1983 claims, even
when brought in the same complaint as a plaintiffs state tort claims.
Indeed, the State cannot be named as a party to a plaintiffs § 1983 civil
rights claims.
In this case, plaintiffs complaint arguably asserted both state
tort claims and 42 U.S.C. § 1983 claims against the respondent state
employees, but did not name the State of Nevada as a party to any of these
claims. Accordingly, we affirm the district court's order dismissing the
complaint to the extent plaintiff asserted state tort claims under NRS
41.031 and NRS 41.0337, but reverse and remand the district court's
dismissal as to those claims made pursuant to 42 U.S.C. § 1983.

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BACKGROUND
Plaintiff Teddie Craig is an inmate at the Lovelock Correctional
Center. Craig filed a civil rights and torts complaint pursuant to 42 U.S.C.
§ 1983 and NRS 41.031 naming respondents, who are employees of the
Nevada Department of Corrections, as defendants in their individual
capacities and alleging that these parties violated his First, Eighth, and
Fourteenth Amendment rights under the United States Constitution.
Respondents subsequently moved to dismiss the complaint,
arguing that Craig failed to properly name the State of Nevada as required
by NRS 41.031 and NRS 41.0337, and therefore, failed to invoke the State's
waiver of sovereign immunity such that the district court lacked jurisdiction
over the matter. Craig opposed the motion, arguing that the prison, as an
arm of the State, is not a person for purposes of 42 U.S.C. § 1983, and
asserting that, as a result, he was withdrawing his reliance on NRS 41.031
as a basis for the action. Craig also moved to strike any reference to NRS
41.031 as a basis for his complaint for the purpose of giving the district court
jurisdiction over his § 1983 claims.
The district court granted respondents' motion to dismiss,
concluding that Craig failed to name the State of Nevada in his complaint,
as required by NRS 41.031, and that he therefore failed to properly invoke
the State's waiver of sovereign immunity. Based on this determination, the
district court held that it lacked subject matter jurisdiction over the case,
noting that Craig could not plead around this jurisdictional defect by
attempting to strike the reference to the relevant statute.
Craig now appeals, contending that the district court erred in
dismissing his case because he brought federal civil rights claims under 42
U.S.C. § 1983. Respondents disagree, arguing that dismissal was proper
because Craig failed to properly invoke the State's waiver of sovereign
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immunity under NRS 41.031, and therefore, the district court did not have
jurisdiction over the case.
ANALYSIS
The district court may properly dismiss a complaint when a lack
of subject matter jurisdiction is apparent on the face of the complaint.
Rosequist v. Int'l Ass'n of Firefighters Local 1908, 118 Nev. 444, 448, 49 P.3d
651, 653 (2002), overruled on other grounds by Allstate Ins. Co. v. Thorpe,
123 Nev. 565, 573 n.22, 170 P.3d 989, 995 n.22 (2007); see NRCP 12(h)(3).
This court reviews a district court's order granting a motion to dismiss for
lack of subject matter jurisdiction de novo. See Am. First Fed. Credit Union
v. Soro, 131 Nev. 737, 739, 359 P.3d 105, 106 (2015) (reviewing a district
court order dismissing a case for lack of subject matter jurisdiction de novo).
By statute, the State of Nevada has waived its sovereign
immunity from civil liability in limited circumstances. See NRS 41.031.
NRS 41.031 provides that, to properly invoke the State's waiver of
immunity and pursue a civil action against the State, a plaintiff must name
"the State of Nevada on relation of the particular department, commission,
board or other agency of the State whose actions are the basis for the suit."
Additionally, NRS 41.0337 requires that, to pursue a tort claim against a
state employee, the complaint must name the State as a party pursuant to
NRS 41.031. Thus, NRS 41.031 and NRS 41.0337 require that, to pursue a
claim against the State or a state employee acting within the scope of his or
her employment, a plaintiff must name the State of Nevada as a defendant.
Here, Craig's complaint set forth 42 U.S.C. § 1983 claims while
also providing that jurisdiction for his claims existed under NRS 41.031.
And the district court dismissed the complaint, in its entirety, for failure to
name the State of Nevada as a party pursuant to NRS 41.031.

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Insofar as Craig's complaint can be read to have asserted state
tort claims against the respondent state employees pursuant to NRS 41.031,
dismissal as to those claims was required. 1 As detailed above, NRS 41.031
and NRS 41.0337 require that the State, on relation of the particular
department, be named as a party to any complaint setting forth tort claims
against state employees. And here, it is undisputed that Craig failed to
name the State as a party to the action. Accordingly, the district court was
required to dismiss any state tort claims that Craig brought against
respondents for lack of subject matter jurisdiction. See NRS 41.031; NRS
41.0337; Rosequist, 118 Nev. at 448, 49 P.3d at 653.
This does not end our analysis, however, as the district court
went on to determine that NRS 41.031 and NRS 41.0337 also required
dismissal of Craig's 42 U.S.C. § 1983 claims for failing to name the State as
a party. The Nevada appellate courts have not addressed whether NRS
41.031 and NRS 41.0337 require a plaintiff to name the State as a party to
§ 1983 claims brought against state employees in their individual
capacities, and we take this opportunity to provide guidance on this issue.
42 U.S.C. § 1983 allows a plaintiff to bring civil rights claims
against any person who, under color of any statute, deprives the plaintiff of
any rights, privileges, or immunities secured by the United States
Constitution. 42 U.S.C. § 1983 Importantly, states are not "persons" for

1 It is not clear that Craig actually asserted any state tort claims in
his complaint, as he appears to only assert constitutional violations as
causes of action. Indeed, Craig's complaint was filed using a standard form
entitled, "Civil Rights Complaint pursuant to 42 U.S.C. § 1983" and Craig
merely included NRS 41.031 as an additional statute providing jurisdiction.
Nonetheless, to the extent his complaint could be read as including state
tort claims, Craig waived them in his opposition to the motion to dismiss.
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purposes of 42 U.S.C. § 1983 actions, and thus, a plaintiff cannot bring a
§ 1983 action against a state. See Will v. Mich. Dep't of State Police, 491
U.S. 58, 64-70 (1989).
Similarly, when state officials or employees are sued in their
official capacities, such actions are truly against the office, not the
individual, such that the action is effectively against the state itself. Id. at
71; see also N. Nev. Ass'n of Injured Workers v. Nev. State Indus. Ins. Sys.,
107 Nev. 108, 114-15, 807 P.2d 728, 732 (1991) (applying Will to determine
that § 1983 claims could not be maintained against a Nevada state agency
or state officials and employees in their official capacities). Therefore, state
officials and employees are likewise not "persons" for purposes of § 1983
actions when sued in their official capacities and such claims cannot be
brought against them in this capacity. Will, 491 U.S. at 71; N. Nev. Ass'n
of Injured Workers, 107 Nev. at 114-15, 807 P.2d at 732.
Because neither the State nor state employees in their official
capacities can be proper defendants to 42 U.S.C. § 1983 claims, NRS 41.031
and NRS 41.0337 necessarily do not apply to such claims. As a result, the
respondent state employees, in their individual capacities, were the proper
defendants to Craig's § 1983 claims, not the State. See Hafer v. Melo, 502
U.S. 21, 27-28 (1991) (holding that state officials may be sued in their
personal or individual capacities under § 1983, even if their actions were
taken as part of their official duties).
Beyond the fact that 42 U.S.C. § 1983 claims cannot be
maintained against the State, to the extent that dismissal of Craig's § 1983
claims based on a failure to invoke Nevada's sovereign immunity under
NRS 41.031 and NRS 41.0337 would provide immunity over and above what
is already provided by § 1983, such an application of Nevada's statutes

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would violate the supremacy clause of the United States Constitution. See
Howlett v. Rose, 496 U.S. 356, 375 (1990) (explaining that § 1983 claims
may be brought in state courts and are not subject to state sovereign
immunity defenses because allowing "immunity over and above those
already provided in § 1983 . . . directly violates federal law"); Martinez v.
Cal., 444 U.S. 277, 284 n.8 (1980) (explaining that "[c]onduct by persons
acting under color of state law which is wrongful under 42 U.S.C. § 1983 or
§ 1985(3) cannot be immunized by state law" because it would violate the
supremacy clause (internal quotation marks omitted)). As a result, NRS
41.031 and NRS 41.0337 cannot bar Craig from pursuing his 42 U.S.C.
§ 1983 claims against the respondent state employees, in their individual
capacities, on sovereign immunity grounds. 2
Thus, when a plaintiff seeks to bring both state tort claims and
42 U.S.C. § 1983 claims against state employees, the claims should be
structured as follows. Any state tort claims must name not only the state
employees, but must also include the State, on relation of the particular
department, as a party to those particular claims in order to comply with
NRS 41.031 and NRS 41.0337 and perfect a waiver of Nevada's sovereign
immunity. Any claims brought pursuant to § 1983, however, need only
name the state employees, in their individual capacities, as parties to the

2 We note that our conclusion on this point is in line with those reached
by several of our sister states who have addressed similar questions. See,
e.g., Besser v. Dexter, 589 N.E.2d 77, 79 (Ohio Ct. App. 1990) ("The
procedure set forth in [Ohio's waiver of sovereign immunity statute] applies
to state law claims against the state of Ohio and/or its employees. It has no
application to federal claims whether brought in federal or state court. . .
Watkins v. Pa. Dep't of Corr., 196 A.3d 272, 274 (Pa. Commw Ct. 2018)
("Section 1983 claims may be brought in the courts of this Commonwealth
and are not subject to state sovereign immunity defenses.").
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§ 1983 claims. The plaintiff need not—and indeed cannot—name the State
as a party to the 42 U.S.C. § 1983 claims.
CONCLUSION
Based on the foregoing analysis, we conclude that, while the
district court properly dismissed any state tort claims brought against the
respondent state employees for failing to name the State as a party as
required by NRS 41.031 and NRS 41.0337, it erred in applying these
statutes to dismiss Craig's 42 U.S.C. § 1983 claims With regard to the
§ 1983 claims, Craig's complaint properly named the state employees, in
their individual capacities, as parties and not the State, as required to bring
claims under § 1983. Accordingly, we affirm the dismissal of any state tort
claims in Craig's complaint, but reverse and remand the dismissal of Craig's
complaint as to his 42 U.S.C. § 1983-based causes of action. 3

A.C.J.

J.
Tao

3 1n light of our resolution of this case, we deny all other requests for
relief currently pending in this matter.
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