Davis v. State

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/22/2017 08:11 PM CST

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Nebraska Supreme Court A dvance Sheets

297 Nebraska R eports

DAVIS v. STATE

Cite as 297 Neb. 955

Johnnie W. Davis, appellant, v.

State of Nebraska et al., appellees.

___ N.W.2d ___

Filed October 6, 2017. No. S-16-355.

1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court

reviews a district court’s order granting a motion to dismiss de novo,

accepting all allegations in the complaint as true and drawing all reason-

able inferences in favor of the nonmoving party.

2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss

for failure to state a claim, a plaintiff must allege sufficient facts to state

a claim to relief that is plausible on its face. In cases in which a plaintiff

does not or cannot allege specific facts showing a necessary element, the

factual allegations, taken as true, are nonetheless plausible if they sug-

gest the existence of the element and raise a reasonable expectation that

discovery will reveal evidence of the element or claim.

3. Appeal and Error. An appellate court independently reviews questions

of law decided by a lower court.

4. Constitutional Law. The determination of constitutional requirements

presents a question of law.

5. Statutes. Statutory interpretation presents a question of law.

6. Tort Claims Act. Whether a plaintiff’s allegations present a claim that

is barred by an exception to the State’s waiver of tort immunity in a tort

claims act presents a question of law.

7. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8,209

(Reissue 2014) bars tort claims against the State, its agencies, and its

employees unless the State has waived its immunity for the claim.

8. Statutes. Statutes relating to the same subject, although enacted at dif-

ferent times, are in pari materia and should be construed together.

9. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8,215

(Reissue 2014), when read in pari materia with Neb. Rev. Stat.

§ 81-8,209 (Reissue 2014), operates as a limited waiver of the State’s

tort immunity, subject to specified exceptions that are set out in Neb.

Rev. Stat. § 81-8,219 (2014).

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10. Tort Claims Act: Public Officers and Employees: Immunity: Waiver.

The exceptions to the waiver of the State’s tort immunity include claims

based on the exercise or performance of a discretionary function by a

state officer or employee.

11. ____: ____: ____: ____. Under Neb. Rev. Stat. § 81-8,210 (Reissue

2014), whether a plaintiff has sued a state officer or employee in his

or her individual capacity is irrelevant to whether the State Tort Claims

Act bars a tort claim against that officer or employee. If an officer or

employee was acting within the scope of his or her office or employ-

ment and the alleged tortious conduct falls within an exception to the

State’s waiver of tort immunity, the State Tort Claims Act bars a tort

claim against the officer or employee, regardless of the capacity in

which he or she was purportedly sued.

12. Jurisdiction: Appeal and Error. An appellate court has an independent

duty to decide jurisdictional issues on appeal, even if the parties have

not raised the issue.

13. ____: ____. When a trial court lacks the power, that is, jurisdiction, to

adjudicate the merits of a claim, an appellate court also lacks the power

to adjudicate the merits of the claim.

14. Actions: Jurisdiction: Immunity. A trial court lacks subject matter

jurisdiction over an action against the State unless the State has con-

sented to suit.

15. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised

at any time by any party or by the court sua sponte.

16. Courts: Appeal and Error. The doctrine of stare decisis requires that

appellate courts adhere to their previous decisions unless the reasons

therefor have ceased to exist, are clearly erroneous, or are manifestly

wrong and mischievous or unless more harm than good will result from

doing so.

17. ____: ____. The doctrine of stare decisis is entitled to great weight,

but it does not require an appellate court to blindly perpetuate a prior

interpretation of the law if it concludes that prior interpretation was

clearly incorrect.

18. Tort Claims Act: Immunity: Waiver: Appeal and Error. An excep-

tion to the State’s waiver of immunity under the State Tort Claims Act

is an issue that the State may raise for the first time on appeal and that

a court may consider sua sponte.

19. Tort Claims Act: Appeal and Error. An appellate court has the power

to determine whether a plaintiff’s allegations, taken as true, show that a

tort claim is facially barred by an STCA exception under Neb. Rev. Stat.

§ 81-8,219 (Reissue 2014).

20. False Imprisonment: Words and Phrases. False imprisonment is

the unlawful restraint of a person’s liberty against his or her will. Any

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intentional conduct that results in the placing of a person in a position

where he or she cannot exercise his or her will in going where he or she

may lawfully go may constitute false imprisonment.

21. Judgments: Appeal and Error. An appellate court may affirm a lower

court’s ruling that reaches the correct result, albeit based on differ-

ent reasoning.

22. Constitutional Law: Civil Rights: Immunity. States or governmen-

tal entities that are considered arms of the State for 11th Amendment

purposes are not “persons” that can be sued under 42 U.S.C. § 1983

(2012).

23. ____: ____: ____. Whether a state entity is an arm of the State and

entitled to share its 11th Amendment immunity is a question of fed-

eral law.

24. Judgments: Civil Rights: Immunity. Whether a money judgment

against a state entity would be enforceable against the State is the

critical consideration under 42 U.S.C. § 1983 (2012) for determining

whether the entity is an arm of the State and therefore immune from suit

by private persons.

25. Actions: Immunity. A suit against a state agency is a suit against the

State, and both the State and state agencies can assert the State’s sover-

eign immunity against suit.

26. Constitutional Law: Judgments: Probation and Parole: Civil Rights:

Immunity. Because any judgment against the Board of Parole would

be a judgment against the State, it is cloaked with the State’s 11th

Amendment immunity and cannot be named as a defendant in an action

brought under 42 U.S.C. § 1983 (2012).

27. Actions: Public Officers and Employees: Civil Rights: Liability. A

state official sued in his or her official capacity is not a person who can

be sued under an action brought under 42 U.S.C. § 1983 (2012), unless

the plaintiff seeks only prospective relief.

28. Actions: Parties: Public Officers and Employees: Liability:

Damages. When a plaintiff seeks money damages against a state officer

or employee in his or her official capacity, the State is the real party in

interest, because the officer’s liability in that capacity is liability for the

state entity that the officer represents.

29. Actions: Public Officers and Employees: Civil Rights: Immunity:

Damages. Under 42 U.S.C. § 1983 (2012), the State’s sovereign immu-

nity does not bar a claim for damages against state officials and employ-

ees who are sued in their personal capacities.

30. Actions: Public Officers and Employees: Civil Rights: Liability. To

establish personal liability in an action brought under 42 U.S.C. § 1983

(2012), it is enough to show that the official, acting under color of state

law, caused the deprivation of a federal right.

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31. ____: ____: ____: ____. Acting under the color of state law does not

mean that a state official or employee must have been complying with

state law. Under 42 U.S.C. § 1983 (2012), liability exists as long as the

action was taken within the scope of the defendant’s official authority,

even if the official or employee abused his or her authority.

32. Actions: Public Officers and Employees: Immunity. State officials

sued in their personal capacities, unlike those sued in their official

capacities, may assert personal immunity defenses such as objectively

reasonable reliance on existing law.

33. Constitutional Law: Due Process. The Due Process Clause of the fed-

eral Constitution provides both procedural and substantive protections.

34. Constitutional Law: Probation and Parole. Parolees have a valuable

liberty interest in their continued parole even though it depends upon

their compliance with parole conditions. Parole is therefore protected by

the 14th Amendment and requires at least minimal procedural protec-

tions before a State can terminate it.

35. Due Process. The touchstone of due process is protection of the indi-

vidual against arbitrary action of government, whether the fault lies in

a denial of fundamental procedural fairness or in the exercise of power

without any reasonable justification in the service of a legitimate gov-

ernmental objective.

36. Due Process: Public Officers and Employees. The due process protec-

tion in the substantive sense limits what the government may do in both

its legislative and its executive capacities. But the criteria to identify

what is fatally arbitrary differ depending on whether it is legislation or a

specific act of a governmental officer that is at issue.

37. ____: ____. Only the most egregious official conduct can be said to be

arbitrary in the constitutional sense. The substantive component of the

Due Process Clause is violated by executive action only when it can

properly be characterized as arbitrary, or conscience shocking, in a con-

stitutional sense.

38. Due Process: Negligence: Liability. Liability for negligently inflicted

harm is categorically beneath the threshold of constitutional due

process.

39. Arrests. Normally, when a State holds an individual in custody, the

requisite level of conscience-shocking conduct is deliberate indifference,

subject to the caveat that the standard is sensibly employed only when

actual deliberation is practical.

40. Constitutional Law: Arrests. A plaintiff states a cognizable constitu-

tional violation under the 8th or 14th Amendment when the plaintiff

alleges that a state defendant—who had knowledge of the plaintiff’s

complaint that he or she was being unlawfully detained and the author-

ity to investigate that complaint—was deliberately indifferent to the

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plaintiff’s liberty interest and the defendant’s failure to take action

resulted in the plaintiff’s continued unlawful detention for more than

an insignificant period.

41. Public Officers and Employees: Immunity: Damages: Words and

Phrases. Public officials performing a quasi-judicial function have

absolute immunity from damages for acts they commit within the scope

of that function. A quasi-judicial function refers to one that is closely

related to the judicial process.

42. Public Officers and Employees: Immunity: Liability. In determining

whether to grant quasi-judicial immunity, courts examine the nature of

the functions with which a particular official or class of officials has

been lawfully entrusted to evaluate the effect that exposure to particu-

lar forms of liability would likely have on the appropriate exercise of

those functions.

43. Probation and Parole. The Board of Parole’s mere reliance on evidence

presented to it does not change the nature of its function of exercising

independent discretion whether to grant, deny, or revoke parole.

44. Public Officers and Employees: Civil Rights: Immunity: Pleadings.

Most executive officials and employees are limited to asserting qualified

immunity as an affirmative defense against a personal capacity claim

under 42 U.S.C. § 1983 (2012).

45. Constitutional Law: Public Officers and Employees: Immunity:

Damages: Proof. Qualified immunity shields state officials from money

damages unless a plaintiff alleges facts that would, if proved, show (1)

the official violated a federally guaranteed right and (2) the constitu-

tional or statutory right was clearly established at the time of the chal-

lenged conduct.

46. Actions: Immunity. Because qualified immunity is immunity from suit,

a trial court should try to resolve immunity questions at the earliest pos-

sible stage in litigation.

47. Actions: Public Officers and Employees: Immunity: Liability.

Whether an official protected by qualified immunity may be held per-

sonally liable for an allegedly unlawful official action generally turns on

the objective legal reasonableness of the action, assessed in light of the

legal rules that were clearly established at the time it was taken.

48. Constitutional Law: Public Officers and Employees. Whether a fed-

eral right is clearly established presents a question of law. A court must

consider whether the law is clearly established as it relates to the partic-

ular facts of a case. The unlawfulness of a defendant’s conduct must be

obvious or apparent in the light of preexisting law. That is, the contours

of the right must be sufficiently clear that a reasonable official would

understand that his or her conduct violates that right.

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49. ____: ____. To show a clearly established federal right, the U.S.

Supreme Court does not require a case to be directly on point, but exist-

ing precedent must have placed the statutory or constitutional question

beyond debate.

50. ____: ____. A federal right can be established by a robust consensus of

cases of persuasive authority.

51. Public Officers and Employees: Negligence: Immunity. Showing

that a state defendant was negligent is insufficient to defeat a quali-

fied immunity defense. Qualified immunity gives government officials

breathing room to make reasonable but mistaken judgments and pro-

tects all but the plainly incompetent or those who knowingly violate

the law.

52. Actions: Civil Rights: Liability. Vicarious liability is unavailable in an

action brought under 42 U.S.C. § 1983 (2012).

Appeal from the District Court for Lancaster County: Lori

A. M aret, Judge. Affirmed.

Charles E. Wilbrand and Jeanelle R. Lust, of Knudsen,

Berkheimer, Richardson & Endacott, L.L.P., for appellant.

Douglas J. Peterson, Attorney General, Bijan Koohmaraie,

and David A. Lopez for appellees.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,

K elch, and Funke, JJ.

Funke, J.

I. NATURE OF CASE

Johnnie W. Davis appeals from the district court’s order that

dismissed his negligence claim under the State Tort Claims

Act (STCA)1 and his due process and Eighth Amendment

claims under 42 U.S.C. § 1983 (2012). Davis alleged that

state officials and employees of the Nebraska Board of Parole

(Parole Board) and the Department of Correctional Services

(Department) were liable for mistakenly concluding that he

was subject to a mandatory minimum sentence for a 1995

1

Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).

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habitual criminal conviction. Because of this mistake, the

Parole Board revoked his parole and reincarcerated him for

nearly 2 months before releasing him on parole again. The dis-

trict court concluded that all of Davis’ claims were barred by

sovereign immunity, qualified immunity, or pleading deficien-

cies, and dismissed his complaint against all defendants.

We overrule Nebraska cases holding that an exception to

the State’s waiver of immunity for tort claims under the STCA

is an affirmative defense that the State must plead and prove.

Because the exceptions are jurisdictional in nature, we hold

that a court can consider an STCA exception sua sponte and for

the first time on appeal. Here, we conclude that the exception

for claims of false imprisonment applies, which exception bars

Davis’ tort claim under the doctrine of sovereign immunity.

We further conclude that the court did not err in ruling that the

defendants were shielded from Davis’ § 1983 action by abso-

lute or qualified immunity.

II. BACKGROUND

We glean the historical facts leading up to this action from

the allegations in Davis’ complaint.2

1. Davis’ A rrest, Pleas, and Sentencing

On May 10, 1995, Davis was charged with 11 different

crimes and was alleged to be a habitual offender. In January

1996, under a plea agreement, Davis pled no contest to count I,

attempted murder in the second degree, and count II, use of

a deadly weapon to commit a felony. The State dismissed the

remaining charges. In March, the court determined that Davis

was a habitual offender and sentenced him to a term of 20

to 30 years’ imprisonment for count I and a term of 10 to

20 years’ imprisonment for count II, with the terms to be

served consecutively.

2

See Jacob v. Nebraska Dept. of Corr. Servs., 294 Neb. 735, 884 N.W.2d

687 (2016).

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2. Changes to H abitual Criminal Sentencing

Before June 1995, the habitual criminal statute3 provided

the following:

Whoever has been twice convicted of a crime, sentenced,

and committed to prison . . . for terms of not less than one

year each shall, upon conviction of a felony committed in

this state, be deemed to be an habitual criminal and shall

be punished by imprisonment . . . for a term of not less

than ten nor more than sixty years . . . .4

In June 1995, the Legislature amended § 29-2221 to pro-

vide a mandatory minimum sentence for habitual criminal

convictions:

Whoever has been twice convicted of a crime, sentenced,

and committed to prison . . . for terms of not less than one

year each shall, upon conviction of a felony committed in

this state, be deemed to be an habitual criminal and shall

be punished by imprisonment . . . for a mandatory mini-

mum term of ten years and a maximum term of not more

than sixty years . . . .5

Other mandatory minimums apply if a defendant has been con-

victed of felonies not at issue here.6 This amendment became

effective in September 1995,7 after Davis committed his crimes

but before he entered his pleas and was sentenced.

Mandatory minimum sentences carry two consequences that

a minimum term sentence comprising the same number of

years does not. First, a “person convicted of a felony for which

a mandatory minimum sentence is prescribed shall not be

eligible for probation.”8 Second, the offender cannot become

3

See Neb. Rev. Stat. § 29-2221 (Reissue 2016).

4

See § 29-2221(1) (Cum. Supp. 1994).

5

See, 1995 Neb. Laws, L.B. 371, § 13 (emphasis supplied), codified at

§ 29-2221(1) (Reissue 1995).

6

See id.

7

See id., § 32.

8

See Neb. Rev. Stat. § 28-105(4) (Reissue 2016).

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eligible for parole until the mandatory minimum is served in

full; good time credits can be applied to the maximum term

of an indeterminate sentence only after the offender serves the

mandatory minimum.9

3. Davis’ R elease and R eincarceration

In 2012, Davis was paroled. In 2014, the Department

obtained warrants to arrest released prisoners for whom it had

miscalculated their release dates. Davis’ name was not on that

list. But an unknown person later added his name to this list,

and a warrant was issued for his arrest. In June, Davis was

informed by his parole officer that he needed to turn himself

in because his parole eligibility date had been miscalculated.

Davis had not violated his parole, and he was employed.

Before turning himself in to the Department on June 25, he

informed the Department and his parole officer that the man-

datory minimum provision did not apply to him and that his

parole eligibility date was correct. Neither the Department nor

the Parole Board investigated his claim.

At a parole hearing on July 29, 2014, the Parole Board

revoked his parole despite his continued claim that he was not

subject to the mandatory minimum amendment. On August 22,

Davis was released again and given a certificate of parole. Six

months after filing a “State Torts Claim” with the State’s risk

management division, Davis filed this action.

4. Davis’ Claims

Davis named 16 defendants in his complaint: the State;

the Department; the Attorney General’s office; the Parole

Board; the former governor; the former Attorney General; the

Department’s former director, former records administrator,

former general counsel, and two of its former attorneys; the

Parole Board’s former and current chairpersons, its former vice

9

See, Neb. Rev. Stat. § 83-1,110 (Reissue 2014); Caton v. State, 291

Neb. 939, 869 N.W.2d 911 (2015); Johnson v. Kenney, 265 Neb. 47, 654

N.W.2d 191 (2002).

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chairperson, and a current and former member. He sued all

of the state officers and employees in their official and indi-

vidual capacities.

For Davis’ negligence claim under the STCA, he alleged

that all the state defendants owed him a duty not to violate

his civil rights and not to reincarcerate him or cause his rein-

carceration unless he had violated his parole. Davis alleged,

condensed, that the defendants breached these duties when,

despite his protests, they (1) failed to research the correct law

and applied the wrong law to calculate his parole eligibility

date, (2) determined that he had not served enough time, (3)

added his name to a list of persons who should be arrested,

and (4) reincarcerated him for 59 days when he should have

been on parole.

Davis alleged that in 1997, the Attorney General issued

an opinion at the request of the Department’s director at that

time.10 The Attorney General stated that generally, the good

time provisions in effect when an offender committed the

offense are the ones that apply to calculating the offender’s

sentence,11 unless a later amendment increases the amount

of credit that an offender can receive.12 Davis alleged a lack

of institutional oversight, implementing policies, and train-

ing; and he alleged deliberate indifference to his rights. He

alleged that he lost his job as a valet, his engraving business,

and the house he was renting and that his arrest had strained

his relationship with his girlfriend and his family. He alleged

that this stress led to two occasions when he attempted suicide

while incarcerated.

For his § 1983 due process claim, Davis alleged that the

defendants’ “acts, omissions, policies and practices [were] a

substantial departure from accepted professional judgment, . . .

10

Att’y Gen. Op. No. 97005 (Jan. 14, 1997).

11

See id., citing Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct.

960 (1981).

12

Id., citing State v. Schrein, 247 Neb. 256, 526 N.W.2d 420 (1995).

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constitute[d] punishment, [and] reflect[ed] deliberate indiffer-

ence to the known and obvious consequences to [him].” For his

§ 1983 Eighth Amendment claim, he alleged that the defend­

ants’ “acts, omissions, policies and practices . . . constitute[d]

cruel and unusual punishment.” He alleged the defendants’

conduct had caused him to suffer unspecified economic and

noneconomic damages.

5. Hearing on Defendants’ Motion to Dismiss

The defendants moved to dismiss Davis’ negligence claim

and § 1983 claims under Neb. Ct. R. Pldg. § 6-1112(b)(1)

and (6). Their motion did not set out any specific grounds

for a dismissal. At the hearing, the defendants argued that

because Nebraska courts have held that the Parole Board’s

functions are quasi-judicial and inherently discretionary, Davis’

claims against its members were not cognizable. They also

argued that because the Parole Board had exclusive jurisdic-

tion over Davis’ parole revocation, the court should dismiss

Davis’ claims against the other defendants. Alternatively, they

argued that Davis’ § 1983 claims were deficient, because he

had not alleged that the defendants were personally involved in

determining that his parole should be revoked or in procuring

his reincarceration. Regarding Davis’ deliberate indifference

allegations, the State argued that he would have to allege that

the defendants knew he should not be reincarcerated and that

they did so despite that knowledge. Regarding Davis’ negli-

gence claim, the State argued that the defendants who were not

Board members were immune from suit under the doctrine of

sovereign immunity, because they were performing a discre-

tionary function.

Davis responded that the Department is the main state

agency with the duty to determine parole eligibility dates and

release dates from mandatory minimum sentences. He argued

that these duties were ministerial and not discretionary and

that the Parole Board was not entitled to quasi-judicial immu-

nity. He argued that his release on parole 2 months after he

was reincarcerated showed that the only reason for his parole

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revocation was an incorrect calculation of his parole eligibil-

ity date.

Davis also argued that the Department had continuing

duties—before, during, and after his parole revocation—to

review the record, apply the law correctly, and inform the

Parole Board of its determinations. He argued that these duties

showed other state actors besides the Parole Board were

involved in his parole revocation and reincarceration. As a

result, he argued that he could not yet plead with particular-

ity and that the court could not yet determine whether any of

the defendants were entitled to qualified immunity, because he

had not had an opportunity to discover what each state actor

had done.

6. Court’s Order

The court granted the defendants’ motion to dismiss. In its

order, the court concluded that the Parole Board and its mem-

bers were immune from Davis’ claims, because they perform a

quasi-judicial function that is inherently discretionary. It stated

that Davis’ claims against the Parole Board’s members arose

solely out of their official function and that Nebraska law did

not permit civil damages for decisions involving discretion.

It dismissed Davis’ claims against the Parole Board and its

members with prejudice.

The court dismissed Davis’ claims against the defendants

who were not members of the Parole Board, because all

of his claims arose from the revocation of his parole. The

court determined that they were not involved in the revoca-

tion proc­ess and had no authority over the decision and that

Davis had not alleged any facts connecting them to the revo-

cation. It concluded that despite Davis’ allegations about the

Department’s duties, the Parole Board had exclusive jurisdic-

tion over his parole revocation, which did not involve the

Attorney General’s office or any other defendant who was not

a Parole Board member.

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Regarding Davis’ negligence claim, the court reasoned

that under the STCA, the State can be liable only to the

same extent as a private person would be under similar

circumstances and a private person cannot revoke parole.

Additionally, the court concluded that Davis’ “negligence

action triggers the discretionary function exception [to the

State’s waiver of immunity] because his claims are based

upon State employees’ executing Nebraska statutes . . . and

performing discretionary functions.”

Regarding Davis’ § 1983 claims, the court concluded that

his claims against the State, state agencies, and state defend­

ants in their official capacities were barred by sovereign immu-

nity. It additionally found that the claims were not cognizable,

because Davis had failed to “plead with any specificity that

any named Defendant actually participated in any alleged

constitutional violation.” Alternatively, the court ruled that the

defendants were entitled to qualified immunity from Davis’

due process and Eighth Amendment claims. It concluded that

the defendants’ mistaken belief that Davis’ parole eligibility

date was correct did not deprive them of qualified immunity,

because there is “no ‘clearly established constitutional right’

making State officials individually liable for erroneous parole

revocations under the Eighth Amendment.”

III. ASSIGNMENTS OF ERROR

Davis assigns, consolidated and restated, that the court erred

as follows:

(1) in dismissing all of his claims with prejudice;

(2) in determining that the Parole Board and its members are

immune from his claims;

(3) in determining that the defendants who are not Parole

Board members cannot be held liable for his reincarceration;

(4) in failing to weigh the role that the defendants who are

not Parole Board members played in his reincarceration;

(5) in determining that the State has not waived its sovereign

immunity for his negligence claim;

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(6) in determining that his negligence claim is barred by the

discretionary function exception to the State’s waiver of sover-

eign immunity;

(7) in determining that he failed to plead his § 1983 claims

with sufficient specificity;

(8) in determining that the defendants were entitled to quali-

fied immunity; and

(9) in not allowing him to amend his complaint.

VI. STANDARD OF REVIEW

[1,2] We review a district court’s order granting a motion

to dismiss de novo, accepting all allegations in the complaint

as true and drawing all reasonable inferences in favor of the

nonmoving party.13 To prevail against a motion to dismiss for

failure to state a claim, a plaintiff must allege sufficient facts to

state a claim to relief that is plausible on its face.14 In cases in

which a plaintiff does not or cannot allege specific facts show-

ing a necessary element, the factual allegations, taken as true,

are nonetheless plausible if they suggest the existence of the

element and raise a reasonable expectation that discovery will

reveal evidence of the element or claim.15

[3-6] We independently review questions of law decided by

a lower court.16 The determination of constitutional require-

ments presents a question of law.17 Statutory interpretation

presents a question of law.18 Whether a plaintiff’s allegations

present a claim that is barred by an exception to the State’s

waiver of tort immunity in a tort claims act presents a question

of law.19

13

Jacob, supra note 2.

14

First Neb. Ed. Credit Union v. U.S. Bancorp, 293 Neb. 308, 877 N.W.2d

578 (2016).

15

Id.

16

State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).

17

Id.

18

State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).

19

See Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014).

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V. ANALYSIS

1. State Officers and Employees Acting Within

Scope of Their Offices or Employment Can

Be Sued for Tortious Conduct Only in

Their Official Capacities

Davis contends that he sued the defendants in their indi-

vidual capacities and that some of the state employees acted

outside of the scope of their duties. The State responds that

Davis’ negligence claim is not cognizable against the state

defendants in their individual capacities. We agree.

[7] Section 81-8,209 of the STCA bars tort claims against

the State, its agencies, and its employees unless the State has

waived its immunity for the claim:

The State of Nebraska shall not be liable for the torts

of its officers, agents, or employees, and no suit shall

be maintained against the state, any state agency, or any

employee of the state on any tort claim except to the

extent, and only to the extent, provided by the [STCA].

Section 81-8,215 is the State’s general waiver of tort immu-

nity under the STCA.20 In relevant part, it provides that the

State “shall be liable in the same manner and to the same

extent as a private individual under like circumstances.”

[8-10] Statutes relating to the same subject, although

enacted at different times, are in pari materia and should

be construed together.21 Section 81-8,215, when read in pari

materia with § 81-8,209, operates as a limited waiver of the

State’s tort immunity, subject to specified exceptions that are

set out in § 81-8,219.22 The exceptions to the waiver of the

State’s tort immunity include claims based on the exercise

20

See Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997).

21

D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017).

22

See Bronsen v. Dawes Cty., 272 Neb. 320, 722 N.W.2d 17 (2006). See,

also, § 81-8,215; McCormick v. City of Norfolk, 263 Neb. 693, 641

N.W.2d 638 (2002); Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d

605 (1998).

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or performance of a discretionary function by a state officer

or employee.23

[11] Under § 81-8,210, whether a plaintiff has sued a

state officer or employee in his or her individual capacity is

irrelevant to whether the STCA bars a tort claim against that

officer or employee. That is because § 81-8,210(4) defines a

tort claim to mean a claim for money damages caused by the

wrongful or negligent conduct of an officer or employee who

was acting “within the scope of his or her office or employ-

ment, under circumstances in which the state, if a private

person, would be liable to the claimant for such damage, loss,

injury, or death.” And § 81-8,209 authorizes tort liability for a

state officer or employee only to the extent the STCA permits.

So, under the STCA’s definition of a tort claim, plaintiffs are

limited to suing state officers and employees in their offi-

cial capacities.24 We have held that only when the officer or

employee was not acting within the scope of his or her office

or employment can a plaintiff pursue a tort claim against

the officer or employee individually.25 This means that if an

officer or employee was acting within the scope of his or her

office or employment and the alleged tortious conduct falls

within an exception to the State’s waiver of tort immunity,

the STCA bars a tort claim against the officer or employee,

regardless of the capacity in which he or she was purport-

edly sued.

Here, the state defendants could not have committed the

tortious acts set out in Davis’ complaint as private individ-

uals. To the extent that Davis implies that the defendants

may have acted in bad faith, that argument is relevant to

23

See § 81-8,219(1).

24

See Kruger v. Nebraska, 820 F.3d 295 (8th Cir. 2016). Accord, D.M. v.

State, 23 Neb. App. 17, 867 N.W.2d 622 (2015); Bojanski v. Foley, 18

Neb. App. 929, 798 N.W.2d 134 (2011).

25

See, e.g., Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138,

876 N.W.2d 388 (2016); Bohl v. Buffalo Cty., 251 Neb. 492, 557 N.W.2d

668 (1997); D.M., supra note 24.

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whether the defendants are entitled to quasi-judicial immu­

nity,26 not to whether they were acting within the scope of

their office or employment. So even if they were negligent or

abused their authority, Davis’ argument that they might have

acted outside of the scope of their official duties is without

­merit.27 Accordingly, whether they were sued in their individual

capacities is irrelevant to the court’s dismissal of Davis’ negli-

gence claim.

2. State Can R aise STCA Exception

for First Time on A ppeal

At oral arguments, the State argued that Davis’ claim arose

from a false imprisonment and was therefore barred by the

intentional tort exception to the State’s waiver of immunity.

Under § 81-8,219(4), the State’s waiver of immunity does not

apply to “[a]ny claim arising out of . . . false imprisonment . .

. .” But the State conceded that it did not raise this issue to the

district court.

In Maresh v. State,28 the State chose to raise the immunity

issue as an affirmative defense. As a result, we held that the

burden to prove the defense rested on the defendant.29 We

expanded this reasoning in Sherrod v. State,30 in which we held

that exceptions to the general waiver of the STCA are matters

of defense that the State must plead and prove. And we have

repeated this holding in other cases.31

26

See Noffsinger v. Nebraska State Bar Assn., 261 Neb. 184, 622 N.W.2d

620 (2001).

27

See Lamb, supra note 25.

28

Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992) (superseded in

part by statute as stated in Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438

(2010)).

29

Id.

30

Sherrod, supra note 20.

31

See, Hall, supra note 19; Doe v. Board of Regents, 280 Neb. 492, 788

N.W.2d 264 (2010); Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d

155 (2007); Lawry, supra note 22; Sherrod, supra note 20; D.M., supra

note 24.

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In Sherrod, we held that subject matter jurisdiction is

conferred by the general waiver of tort immunity found in

§ 81-8,215. We then cited four federal appellate decisions32

and a state court decision33 to hold that the government bears

the burden to plead and prove the application of an exception

to a waiver of sovereign immunity under a tort claims act.34

But not all of the cited federal cases supported our holding

that a sovereign immunity defense can be waived by failing to

plead it, and the differences are important.

We primarily relied on the Seventh Circuit’s holding in

Stewart v. United States35 that the Federal Tort Claims Act

(FTCA) “conferred general jurisdiction of the subject matter of

claims coming within its purview, and the exceptions referred

to are available to the government as a defense only when

aptly pleaded and proven.” The court “thus viewed the discre-

tionary function exception as a waivable affirmative defense

rather than an impairment of its power to adjudicate.”36

We also cited the Sixth Circuit’s holding in Carlyle v.

United States, Dept. of the Army37 that a plaintiff can invoke

jurisdiction only if the complaint is facially outside the excep-

tions of the FTCA. The court further stated that “[o]nly after

a plaintiff has successfully invoked jurisdiction by a pleading

that facially alleges matters not excepted by [the FTCA] does

the burden fall on the government to prove the applicability

32

See Stewart v. United States, 199 F.2d 517 (7th Cir. 1952). See, also,

Autery v. U.S., 992 F.2d 1523 (11th Cir. 1993); Prescott v. U.S., 973 F.2d

696 (9th Cir. 1992); Carlyle v. United States, Dept. of the Army, 674 F.2d

554 (6th Cir. 1982).

33

See State v. Zimring, 52 Haw. 477, 479 P.2d 205 (1970).

34

Sherrod, supra note 20.

35

Stewart, supra note 32, 199 F.2d at 519.

36

Richardson v. United States, 943 F.2d 1107, 1113 (9th Cir. 1991).

37

Carlyle, supra note 32.

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of a specific provision of [the FTCA].”38 And we cited a Ninth

Circuit case, Prescott v. U.S.,39 in which the court agreed with

the Sixth Circuit’s decision in Carlyle.

In addition to these three federal court cases that we cited

in Sherrod, the Third Circuit also holds that a defendant in an

action brought under the FTCA bears the burden to prove an

exception to the government’s waiver of immunity.40

But holding that the government bears the ultimate burden

of proof is not the same as holding that the State’s sovereign

immunity can be waived by a state attorney’s failure to raise it

as a defense. And even among federal circuit courts that have

decided the burden of proof question, they do not all agree that

the FTCA exceptions are affirmative defenses for which the

defendant bears the burden of persuasion.41 Their disparity may

stem from the U.S. Supreme Court’s discussions of the juris-

dictional nature of sovereign immunity.

The Supreme Court has clarified that a State’s 11th

Amendment immunity from suit is a convenient shorthand,

but something of a misnomer, for state sovereign immunity,

which is broader than the terms of the 11th Amendment.42

Under the 11th Amendment, an unconsenting State is immune

from federal court suits brought by its own citizens, as well

as by citizens of another State.43 The Supreme Court has held

38

Id. at 556.

39

Prescott, supra note 32.

40

See S.R.P. ex rel. Abunabba v. U.S., 676 F.3d 329 (3d Cir. 2012).

41

See, Wood v. U.S., 845 F.3d 123 (4th Cir. 2017); Tsolmon v. U.S., 841 F.3d

378 (5th Cir. 2016); Carroll v. U.S., 661 F.3d 87 (1st Cir. 2011); Garcia v.

U.S. Air Force, 533 F.3d 1170 (10th Cir. 2008); OSI, Inc. v. U.S., 285 F.3d

947 (11th Cir. 2002).

42

Northern Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 126 S. Ct.

1689, 164 L. Ed. 2d 367 (2006).

43

Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974).

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that states can waive their 11th Amendment immunity in

federal court and that federal courts can ignore an immunity

defense if a State has not raised it.44 It has explained that a

State can waive its 11th Amendment immunity, because the

amendment “enacts a sovereign immunity from suit, rather

than a nonwaivable limit on the Federal Judiciary’s subject-

matter jurisdiction.”45 And it has refused to hold that the

FTCA exceptions are subject to the general rule that a waiver

of sovereign immunity will be strictly construed in favor

of the sovereign.46 It has reasoned that in the context of the

FTCA, “‘unduly generous interpretations of the exceptions

run the risk of defeating the central purpose of the statute,’

. . . which ‘waives the Government’s immunity from suit in

sweeping language.’”47

But the Supreme Court has also held that “[s]overeign

immunity is by nature jurisdictional, . . . and the terms of

the United States’ ‘“consent to be sued in any court define

that court’s jurisdiction to entertain the suit.”’”48 In an FTCA

appeal, it concluded that because the United States “can

be sued only to the extent that it has waived its immu-

nity, due regard must be given to the exceptions . . . to

such waiver.”49

44

See, Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 118 S. Ct.

2047, 141 L. Ed. 2d 364 (1998); Patsy v. Florida Board of Regents, 457

U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982).

45

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S. Ct.

2028, 138 L. Ed. 2d 438 (1997).

46

Dolan v. Postal Service, 546 U.S. 481, 126 S. Ct. 1252, 163 L. Ed. 2d

1079 (2006).

47

Id., 546 U.S. at 492.

48

Henderson v. United States, 517 U.S. 654, 675-76, 116 S. Ct. 1638, 134 L.

Ed. 2d 880 (1996). Accord FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996,

127 L. Ed. 2d 308 (1994).

49

United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d

390 (1976).

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Additionally, in United States v. Gaubert,50 the Supreme

Court imposed a pleading standard that requires a plaintiff’s

factual allegations to support a finding that the FTCA’s discre-

tionary function exception does not apply when a presumption

of discretionary conduct exists:

When established governmental policy, as expressed

or implied by statute, regulation, or agency guidelines,

allows a Government agent to exercise discretion, it

must be presumed that the agent’s acts are grounded in

policy when exercising that discretion. For a complaint

to survive a motion to dismiss, it must allege facts which

would support a finding that the challenged actions are

not the kind of conduct that can be said to be grounded in

the policy of the regulatory regime.51

Finally, the Supreme Court has held that a State’s 11th

Amendment immunity defense “sufficiently partakes of the

nature of a jurisdictional bar” that it can be raised for the

first time on appeal,52 although it has discretion to determine

that a State has waived that argument by failing to raise it

on appeal.53

Not all federal circuit courts have weighed in on which party

bears the ultimate burden of persuasion on the application of

an FTCA exception.54 Our analysis in Sherrod failed to recog-

nize this. Specifically, our quote from Autery v. U.S.,55 an 11th

Circuit case that we cited, seemed to place that court in agree-

ment with courts that hold the government bears the burden

50

United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335

(1991).

51

Id., 499 U.S. at 324-25.

52

Edelman, supra note 43, 415 U.S. at 678.

53

See, Patsy, supra note 44; Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42

L. Ed. 2d 532 (1975).

54

See, e.g., Gibson v. U.S., 809 F.3d 807 (5th Cir. 2016); Hart v. U.S., 630

F.3d 1085 (8th Cir. 2011).

55

Autery, supra note 32.

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to prove an exception.56 But the 11th Circuit explicitly declined

to decide the burden of proof question.57 To the contrary, the

court noted that the Supreme Court’s decision in Gaubert

appears to put the burden on the plaintiff to disprove the dis-

cretionary function exception.58 The 10th Circuit has similarly

noted that Gaubert casts doubt on the 9th Circuit’s holding in

Prescott—which we cited in Sherrod—that the government

bears the ultimate burden of persuasion.59 And the Sixth Circuit

found it unnecessary to decide whether Gaubert affected its

1982 holding in Carlyle 60—which we also cited in Sherrod—

that the government bore the burden to prove an FTCA excep-

tion applied if a plaintiff’s complaint was “‘facially outside the

exceptions of [28 U.S.C.] § 2680.’”61

Although the U.S. Supreme Court has not decided the ulti-

mate burden of proof question for the FTCA exceptions, most

federal circuit courts have held that the plaintiff bears the bur-

den of alleging facts that show the exceptions to the govern-

ment’s waiver of immunity under the FTCA do not deprive the

court of subject matter jurisdiction.62 That includes the Sixth

and Ninth Circuit decisions that we cited in Sherrod.63

In fact, in the Ninth Circuit case we relied on, the court

made the following statement in a footnote: “It is, of course,

56

See Sherrod, supra note 20.

57

See Autery, supra note 32. Accord Mesa v. U.S., 123 F.3d 1435 (11th Cir.

1997).

58

See id.

59

See Kiehn v. U.S., 984 F.2d 1100 (10th Cir. 1993).

60

Carlyle, supra note 32.

61

See Sharp ex rel. Estate of Sharp v. U.S., 401 F.3d 440, 443 n.1 (6th Cir.

2005).

62

See, e.g., Edison v. U.S., 822 F.3d 510 (9th Cir. 2016); Gibson, supra note

54; Zelaya v. U.S., 781 F.3d 1315 (11th Cir. 2015); Molchatsky v. U.S.,

713 F.3d 159 (2d Cir. 2013); Welch v. U.S., 409 F.3d 646 (4th Cir. 2005);

Carlyle, supra note 32.

63

See, Prescott, supra note 32; Carlyle, supra note 32.

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‘well-established law that . . . jurisdictional defenses cannot be

waived by the parties and may be raised for the first time on

appeal or even raised by a court sua sponte.’”64 In a previous

case, it had remanded the matter for the district court to deter-

mine whether the discretionary function applied even though

the government had not raised the exception: “[I]f the discre-

tionary function applies, the claims should be dismissed for

lack of jurisdiction. This court must consider jurisdiction even

if the parties have not challenged it.”65 Other federal circuit

courts agree that an FTCA exception can be considered for the

first time on appeal, at least where the parties do not dispute

facts relevant to the application of an exception.66

Similarly, the Eighth Circuit has held that because a court

lacks subject matter jurisdiction if an alleged act falls within

the discretionary function exception, a district court does not

err in sua sponte ruling that it lacks jurisdiction and dismissing

the plaintiff’s action, where the jurisdictional facts are undis-

puted and the exception clearly applies.67

That leaves the Seventh Circuit’s holding in Stewart v.

United States68 as the primary authority for our holding in

Sherrod that the State’s waiver of immunity can be forfeited if

the State fails to plead and prove an STCA exception. Stewart

remains good law in the Seventh Circuit,69 and, as noted, the

Third Circuit agrees.70 But in a 2016 unpublished decision,

the Third Circuit held that a federal district court did not err

64

Prescott, supra note 32, 973 F.2d at 701 n.2, citing Roberts v. U.S., 887

F.2d 899 (9th Cir. 1989).

65

Roberts, supra note 64, 887 F.2d at 900.

66

See, Garling v. U.S. E.P.A., 849 F.3d 1289 (10th Cir. 2017); Medina v.

U.S., 259 F.3d 220 (4th Cir. 2001); Hydrogen Technology Corp. v. U.S.,

831 F.2d 1155 (1st Cir. 1987).

67

See Hart, supra note 54.

68

Stewart, supra note 32.

69

See, e.g., Keller v. U.S., 771 F.3d 1021 (7th Cir. 2014).

70

See S.R.P. ex rel. Abunabba, supra note 40.

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in sua sponte ruling that the plaintiff’s claim was barred by

the discretionary function exception.71 It stated that although

the exception is analogous to an affirmative defense, it is also

jurisdictional on its face, which is a question that a court has

an obligation to address.72 Similarly, in a 1995 decision, the

Seventh Circuit did not treat Stewart as binding precedent

and independently decided on appeal that the relevant statutes

and regulations showed the discretionary function exception

barred the plaintiff’s claim.73

These cases illustrate that because sovereign immunity is

jurisdictional in nature, and because courts have a duty to

determine whether they have subject matter jurisdiction over

a matter, treating the FTCA exceptions as waivable affirma-

tive defenses places courts in an impossible position when

a jurisdictional problem appears on the face of a plain-

tiff’s complaint.

[12-15] This court has repeatedly held that an appellate

court has an independent duty to decide jurisdictional issues

on appeal, even if the parties have not raised the issue.74 And

when a trial court lacks the power, that is, jurisdiction, to

adjudicate the merits of a claim, an appellate court also lacks

the power to adjudicate the merits of the claim.75 We have

held that a trial court lacks subject matter jurisdiction over an

action against the State unless the State has consented to suit.76

71

See Bedell v. United States, 669 Fed. Appx. 620 (3d Cir. 2016).

72

Id.

73

See Rothrock v. U.S., 62 F.3d 196 (7th Cir. 1995).

74

E.g., J.S. v. Grand Island Public Schools, ante p. 347, 899 N.W.2d 893

(2017).

75

E.g., Landrum v. City of Omaha Planning Bd., ante p. 165, 899 N.W.2d

598 (2017).

76

See, Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb.

48, 825 N.W.2d 204 (2013); Engler v. State, 283 Neb. 985, 814 N.W.2d

387 (2012); McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009);

Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002).

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And lack of subject matter jurisdiction may be raised at any

time by any party or by the court sua sponte.77 As discussed,

however, we have also held in several cases that the exceptions

to the STCA and the Political Subdivisions Tort Claims Act are

affirmative defenses that the State must plead and prove.78

We conclude that these lines of cases are irreconcilable

to the extent that the latter cases imply that a state attorney

can waive the State’s immunity from suit by failing to raise

an exception in a responsive pleading. But when a plaintiff’s

complaint shows on its face that a claim is barred by one of the

exceptions, the State’s inherent immunity from suit is a juris-

dictional issue that an appellate court cannot ignore.

[16,17] The doctrine of stare decisis requires that we adhere

to our previous decisions unless the reasons therefor have

ceased to exist, are clearly erroneous, or are manifestly wrong

and mischievous or unless more harm than good will result

from doing so.79 The doctrine is entitled to great weight, but

it does not require us to blindly perpetuate a prior interpreta-

tion of the law if we conclude the prior interpretation was

clearly incorrect.80

[18] We conclude that our cases holding that the State must

plead and prove an exception to the STCA are clearly errone-

ous to the extent they can be read to hold that a state attorney

waives an immunity defense under § 81-8,219 by failing to

raise it in a pleading or to a trial court. To the extent that they

can be so interpreted, the cases cited in footnotes 28 and 31

are overruled. We hold that an exception to the State’s waiver

of immunity under the STCA is an issue that the State may

raise for the first time on appeal and that a court may consider

sua sponte.

77

E.g., J.S., supra note 74.

78

See cases cited supra notes 28 and 31.

79

See Cano v. Walker, ante p. 580, ___ N.W.2d ___ (2017).

80

See id.

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[19] This holding does not mean that the State may liti-

gate factual disputes relevant to the application of an STCA

exception for the first time on appeal. But an appellate court

has the power to determine whether a plaintiff’s allegations,

taken as true, show that a tort claim is facially barred by an

STCA exception under § 81-8,219. We turn to the allegations

in Davis’ complaint.

Davis alleged that he turned himself in to authorities after

his parole officer directed him to do so because his parole

eligibility date had been miscalculated. He alleged that he was

reincarcerated for almost 2 months despite his protests that

his parole eligibility date had been correctly calculated. We

conclude that these allegations, accepted as true, are facially

within the exception to the State’s waiver of immunity for tort

claims arising out of false imprisonment.81

[20] False imprisonment is the unlawful restraint of a per-

son’s liberty against his or her will.82 Any intentional conduct

that results in the placing of a person in a position where he

or she cannot exercise his or her will in going where he or

she may lawfully go may constitute false imprisonment.83 The

Court of Appeals has previously held that a plaintiff’s claim

that prison officials detained him past his correct release date

stated a claim of false imprisonment.84 We agree and conclude

that the same reasoning applies here. Davis’ allegations that

the prison officials negligently calculated his parole eligibility

date does not preclude the application of the false imprison-

ment exception. The heart of his claim is that he was unlaw-

fully reincarcerated, and no further discovery could correct

that fundamental defect in his complaint. His negligence claim

81

See § 81-8,219(4).

82

Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).

83

Id.

84

See Cole v. Clarke, 8 Neb. App. 614, 598 N.W.2d 768 (1999). See, also,

Annot., 152 A.L.R. Fed. 605, § 5 (1999); 35A Am. Jur. 2d Federal Tort

Claims Act § 91 (2010).

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against the state defendants arose out of their alleged contribu-

tion to his unlawful imprisonment, their failure to correct the

mistake, or their failure to ensure that such mistakes would

not occur.

[21] As explained, under the STCA, if an officer or employee

was acting within the scope of his or her office or employment

and the alleged tortious conduct falls within an exception to

the State’s waiver of tort immunity, the STCA bars a tort claim

against the officer or employee, regardless of the capacity in

which he or she was purportedly sued. Because the State has

not consented to suit for claims arising out of a false imprison-

ment, Davis has not alleged a tort claim that is plausible on

its face against any named defendant. Although our reasoning

necessarily differs from the district court’s, we may affirm a

lower court’s ruling that reaches the correct result, albeit based

on different reasoning.85 The court did not err in dismissing

Davis’ tort claim. We turn to his § 1983 claims.

3. Validity of Davis’ § 1983 Claims Against

State Officers and Employees

Davis concedes that the court properly dismissed his § 1983

claims against the State, its agencies, and its employees in

their official capacities. But he contends that the court erred

in dismissing his § 1983 claims against the defendants in their

individual capacities. Section 1983 provides, in relevant part,

the following:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State . . . sub-

jects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress . . . .

85

E.g., Phillips v. Liberty Mut. Ins. Co., 293 Neb. 123, 876 N.W.2d 361

(2016).

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(a) Sovereign Immunity Bars Davis’ § 1983

Claims Against State, Arms of State,

and State Defendants Sued in

Their Official Capacities

[22,23] The U.S. Supreme Court has interpreted § 1983 to

mean that “States or governmental entities that are considered

‘arms of the State’ for Eleventh Amendment purposes” are

not “persons” that can be sued under the statute.86 Whether a

state entity is an arm of the State and entitled to share its 11th

Amendment immunity is a question of federal law.87

[24,25] Under federal law, whether a money judgment

against a state entity would be enforceable against the State is

the critical consideration under § 1983 for determining whether

the entity is an arm of the State and therefore immune from

suit by private persons.88 Accordingly, we have held that a suit

against a state agency is a suit against the State and that both

the State and state agencies can assert the State’s sovereign

immunity against suit.89

[26] The Department is a state agency. Structurally, the

Parole Board is more an arm of the State than a state agency.

It is not a political subdivision or a statutorily created agency.

It is a constitutionally created body of state government that is

part of the executive branch.90 Because any judgment against

the Parole Board would be a judgment against the State, it is

cloaked with the State’s 11th Amendment immunity and cannot

be named as a defendant in an action brought under § 1983.

86

See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S. Ct.

2304, 105 L. Ed. 2d 45 (1989).

87

See Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 117 S. Ct. 900, 137 L.

Ed. 2d 55 (1997).

88

See Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 115

S. Ct. 394, 130 L. Ed. 2d 245 (1994). See, also, Regents of Univ. of Cal.,

supra note 87.

89

See, e.g., Anthony K. v. Nebraska Dept. of Health & Human Servs., 289

Neb. 540, 855 N.W.2d 788 (2014).

90

Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).

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[27,28] Similarly, the U.S. Supreme Court has interpreted

§ 1983 to mean that a state official sued in his or her offi-

cial capacity is not a person who can be sued in an action

brought under § 1983, unless the plaintiff seeks only pro-

spective relief.91 Prospective relief is permitted against state

officials, because the doctrine of Ex parte Young92 applies to

§ 1983 claims.93 Under that doctrine, a State’s 11th Amendment

immunity does not bar a suit against state officers when the

plaintiff seeks only prospective relief for ongoing violations

of federal rights.94 But when a plaintiff seeks money damages

against a state officer or employee in his or her official capac-

ity, the State is the real party in interest, because the officer’s

liability in that capacity is liability for the state entity that the

officer represents.95

Davis is not seeking prospective relief from any ongoing

official state act or policy. He is seeking money damages

for past deprivations of constitutional rights. Accordingly, the

court properly dismissed Davis’ § 1983 claims against the

State, the Parole Board, the Department, and all state defend­

ants sued in their official capacities.

(b) Personal Capacity Claims Under § 1983

[29] Under 42 U.S.C. § 1983, the State’s sovereign immu-

nity does not bar a claim for damages against state officials

and employees who are sued in their personal capacities.96

91

See Will, supra note 86. Accord Wilkinson v. Dotson, 544 U.S. 74, 125 S.

Ct. 1242, 161 L. Ed. 2d 253 (2005).

92

Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).

93

See Will, supra note 86.

94

See Doe, supra note 31, citing Verizon Md. Inc. v. Public Serv. Comm’n of

Md., 535 U.S. 635, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002).

95

See Anthony K., supra note 89, citing Kentucky v. Graham, 473 U.S. 159,

105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985).

96

See, Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991).

Accord, e.g., Suarez Corp. Industries v. McGraw, 125 F.3d 222 (4th Cir.

1997).

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Personal capacity claims “seek to impose individual liability

upon a government officer for actions taken under color of

state law.”97 The U.S. Supreme Court has clarified that an

earlier reference it made to the capacity in which an officer or

employee acted “is best understood as a reference to the capac-

ity in which the state officer is sued, not the capacity in which

the officer inflicts the alleged injury.”98

[30,31] “‘[T]o establish personal liability in a § 1983 action,

it is enough to show that the official, acting under color of

state law, caused the deprivation of a federal right.’”99 Acting

under the color of state law does not mean that a state official

or employee must have been complying with state law. Under

§ 1983, liability exists as long as the action was taken within

the scope of the defendant’s official authority, even if the offi-

cial or employee abused his or her authority.100

[32] But state defendants are entitled to assert personal

common-law immunity defenses against a § 1983 action.101

­

“While the plaintiff in a personal-capacity suit need not estab-

lish a connection to governmental ‘policy or custom,’ officials

sued in their personal capacities, unlike those sued in their

official capacities, may assert personal immunity defenses such

as objectively reasonable reliance on existing law.’”102

The state defendants argue that they are entitled to two

types of personal immunity defenses against Davis’ § 1983

claims: absolute immunity and qualified immunity. Before

discussing the defendants’ immunity defenses, we consider the

97

Hafer, supra note 96, 502 U.S. at 25.

98

Id., 502 U.S. at 26.

99

Id., 502 U.S. at 25 (emphasis in original), citing Graham, supra note 95.

100

West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988);

Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961),

overruled on other grounds, Monell v. New York City Dept. of Social

Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

101

See Filarsky v. Delia, 566 U.S. 377, 132 S. Ct. 1657, 182 L. Ed. 2d 662

(2012).

102

Hafer, supra note 96, 502 U.S. at 25, quoting Graham, supra note 95.

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validity of Davis’ claims that the state defendants violated his

due process and Eighth Amendment rights.

(c) Deliberate Indifference to a Plaintiff’s Unlawful

Incarceration States Substantive Due Process

or Eighth Amendment Violation

[33] Under the Due Process Clause of the federal

Constitution, “[n]o state shall . . . deprive any person of life,

liberty, or property, without due process of law . . . .”103 The

Due Process Clause provides both procedural and substantive

protections.104

[34] In Morrissey v. Brewer,105 the U.S. Supreme Court held

that parolees have a valuable liberty interest in their continued

parole even though it depends upon their compliance with

parole conditions. Parole is therefore protected by the 14th

Amendment and requires at least minimal procedural protec-

tions before a State can terminate it.106

But Davis has raised a substantive due process argument.

He claims that the state defendants were deliberately indif-

ferent to his repeated claim, before and after his reincar-

ceration, that because the mandatory minimum sentence did

not apply to him, he had been properly released on parole.

Relatedly, he argues that the defendants violated his Eighth

Amendment right to be free from incarceration without a peno-

logical justification.

Federal courts have addressed both substantive due process

claims and Eighth Amendment claims resting on a plaintiff’s

unlawful detention or incarceration. Regardless of the asserted

right, these cases require a plaintiff to show the same level

103

U.S. Const. amend. XIV, § 1.

104

See, e.g., Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278,

293, 739 N.W.2d 742, 756 (2007), citing Harrah Independent School Dist.

v. Martin, 440 U.S. 194, 99 S. Ct. 1062, 59 L. Ed. 2d 248 (1979).

105

Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484

(1972).

106

Id.

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of culpability for a State’s failure to investigate the plaintiff’s

claim that he or she was being unlawfully held: deliber-

ate indifference.

[35-38] The “‘touchstone of due process is protection of

the individual against arbitrary action of government,’ . . .

whether the fault lies in a denial of fundamental procedural

fairness . . . or in the exercise of power without any reason-

able justification in the service of a legitimate governmental

objective.”107 The “due process protection in the substantive

sense limits what the government may do in both its legisla-

tive . . . and its executive capacities.”108 But the “criteria to

identify what is fatally arbitrary differ depending on whether

it is legislation or a specific act of a governmental officer that

is at issue.”109 “[O]nly the most egregious official conduct

can be said to be ‘arbitrary in the constitutional sense.’”110

“[T]he substantive component of the Due Process Clause

is violated by executive action only when it ‘can properly

be characterized as arbitrary, or conscience shocking, in a

constitutional sense.’”111 “[L]iability for negligently inflicted

harm is categorically beneath the threshold of constitutional

due process.”112

The U.S. Supreme Court applied these principles in Baker

v. McCollan,113 a case from the Fifth Circuit involving the

respond­ ent’s mistaken arrest on a warrant and a sheriff’s

office’s unlawful detention of him for 3 days, despite informa-

tion at the office that would have revealed the mistake. The

107

County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S. Ct. 1708,

140 L. Ed. 2d 1043 (1998).

108

Id., 523 U.S. at 846.

109

Id.

110

Id.

111

Id., 523 U.S. at 847.

112

Id., 523 U.S. at 849.

113

See Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 443

(1979).

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sheriff verified the respondent’s claim as soon as he learned

about it and released him.114 The Fifth Circuit held that the

sheriff had a “duty to exercise due diligence in making sure

that the person arrested and detained is actually the person

sought under the warrant and not merely someone of the same

or a similar name.”115 It concluded that a jury could find the

sheriff was not entitled to qualified immunity because he had

caused the respondent’s detention by unreasonably failing to

have adequate identification procedures in place.

The Supreme Court reversed. It concluded that the Fifth

Circuit erred in applying tort principles to conclude that the

sheriff had violated the respondent’s constitutional right to be

free of a liberty deprivation without due process of law. The

Court acknowledged that at some point, an unlawful detention

would cause a constitutional deprivation:

Obviously, one in the respondent’s position could not be

detained indefinitely in the face of repeated protests of

innocence even though the warrant under which he was

arrested and detained met the standards of the Fourth

Amendment. . . . We may even assume, arguendo, that,

depending on what procedures the State affords defend­

ants following arrest and prior to actual trial, mere deten-

tion pursuant to a valid warrant but in the face of repeated

protests of innocence will after the lapse of a certain

amount of time deprive the accused of “liberty . . . with-

out due process of law.”116

But the Court concluded that a 3-day detention could not

show a constitutional deprivation. “[F]alse imprisonment does

not become a violation of the Fourteenth Amendment merely

because the defendant is a state official.”117

114

Id.

115

McCollan v. Tate, 575 F.2d 509, 513 (5th Cir. 1978), reversed, Baker,

supra note 113.

116

Baker, supra note 113, 443 U.S. at 144-45.

117

Id., 443 U.S. at 146.

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[39] In Baker, the Court had no need to determine the

applicable culpability standard for a valid unconstitutional

detention claim, because it concluded that the respondent had

failed to show a constitutional deprivation. But normally, when

a State holds an individual in custody, the requisite level of

conscience-shocking conduct is deliberate indifference, sub-

­

ject to the caveat that the standard is “sensibly employed only

when actual deliberation is practical.”118

It is true that courts usually apply the deliberate indiffer-

ence standard of culpability when a State has failed to provide

for an inmate’s basic needs.119 But federal courts of appeals

have applied the deliberate indifference standard to substantive

due process claims involving wrongful detentions.120 “When

‘actual deliberation is practical,’ establishing a substantive-

due-­process violation requires proof of deliberate indifference

. . . .”121 Some federal courts have explicitly distinguished

Baker, concluding that the short duration of that detention was

crucial to the decision and that Baker did not preclude liability

under § 1983 for all false imprisonment claims.122

But in cases involving both an unlawful pretrial detention

and an overdetention of an inmate, federal courts have held

that state officials who are deliberately indifferent to an indi-

vidual’s claim that he or she is being unlawfully detained vio-

late the individual’s substantive due process right to be free

from wrongful incarceration without due process of law.123

118

See County of Sacramento, supra note 107, 523 U.S. at 851.

119

See id.

120

See, e.g., Davis v. Hall, 375 F.3d 703 (8th Cir. 2004); Cannon v. Macon

County, 1 F.3d 1558 (11th Cir. 1993), modified on denial of rehearing 15

F.3d 1022 (11th Cir. 1994).

121

See Scott v. Baldwin, 720 F.3d 1034, 1036 (8th Cir. 2013).

122

See, e.g., Davis, supra note 120, Cannon, supra note 120; Sanders v.

English, 950 F.2d 1152 (5th Cir. 1992); Haygood v. Younger, 769 F.2d

1359 (9th Cir. 1985).

123

See, Davis, supra note 120 (citing cases); Cannon, supra note 120.

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Similarly, federal courts have held that detaining an inmate

after the expiration of his or her sentence without penological

justification is an Eighth Amendment violation when prison

officials are deliberately indifferent to the inmate’s liberty

interest.124 These parallel lines of cases exist because the U.S.

Supreme Court has held that conditions of pretrial detention

are analyzed under the Due Process Clause, while condi-

tions of incarceration after a conviction are analyzed under

the Eighth Amendment.125 But the culpability standard is

the same.

Finally, in an action under Bivens v. Six Unknown Fed.

Narcotics Agents126 “(the § 1983 counterpart for actions against

federal officials),”127 the Ninth Circuit held that federal prison

officials who were deliberately indifferent to an inmate’s claim

that they had miscalculated his release date were not entitled

to qualified immunity.128 The court reasoned that the officials

had violated a clear duty to investigate his claim under federal

regulations and policies when he raised a substantial question

regarding the accuracy of the agency calculation on which the

officials had relied in ignoring his protests.

In sum, whether a plaintiff’s § 1983 claim rests on an alleged

violation of the 8th or 14th Amendment or a government offi-

cial’s violation of a clear regulatory duty intended to protect

those rights, federal courts have expressly or implicitly pre-

mised liability on a finding that the government officials were

124

See, Burke v. Johnston, 452 F.3d 665 (7th Cir. 2006); Moore v. Tartler, 986

F.2d 682 (3d Cir. 1993); Haygood, supra note 122.

125

See, Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447

(1979); Wharton v. Danberg, 854 F.3d 234 (3d Cir. 2017).

126

See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct.

1999, 29 L. Ed. 2d 619 (1971).

127

Powers v. Hamilton Cty. Pub. Def. Comm., 501 F.3d 592, 610 (6th Cir.

2007).

128

Alexander v. Perrill, 916 F.2d 1392 (9th Cir. 1990). See, also, Burke,

supra note 124.

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deliberately indifferent in failing to investigate the plaintiff’s

claim that his sentence was miscalculated.129 Deliberate indif-

ference represents the consensus of federal appellate courts on

the type of government overdetention or false imprisonment

that will result in a constitutional deprivation.

[40] We therefore hold that a plaintiff states a cognizable

constitutional violation under the 8th or 14th Amendment

when the plaintiff alleges that a state defendant—who had

knowledge of the plaintiff’s complaint that he or she was being

unlawfully detained and the authority to investigate that com-

plaint—was deliberately indifferent to the plaintiff’s liberty

interest and the defendant’s failure to take action resulted in

the plaintiff’s continued unlawful detention for more than an

insignificant period.

Davis alleged the state defendants were deliberately indif-

ferent to his protests that they had miscalculated his parole

eligibility date and alleged he was reincarcerated for more

than an insignificant amount of time. So we turn to the rea-

sons that the district court dismissed his claims.

(d) Court Properly Dismissed Davis’ § 1983

Claim Against Parole Board and Its

Past and Current Members

[41] The court implicitly concluded that the Parole Board

and its members had absolute immunity from Davis’ claims by

ruling that its members were performing a quasi-judicial func-

tion. Public officials performing a quasi-judicial function have

absolute immunity from damages for acts they commit within

the scope of that function.130 A quasi-judicial function refers to

one that is closely related to the judicial process.131

[42] In determining whether to grant quasi-judicial immu-

nity, courts examine the nature of the functions with which

129

See, Burke, supra note 124; Davis, supra note 120, Moore, supra note

124; Alexander, supra note 128.

130

See Frey v. Blanket Corp., 255 Neb. 100, 582 N.W.2d 336 (1998).

131

See Noffsinger, supra note 26.

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a particular official or class of officials has been lawfully

entrusted to evaluate the effect that exposure to particular

forms of liability would likely have on the appropriate exercise

of those functions.132

[W]here an officer is invested with discretion and is

empowered to exercise his or her judgment in matters

brought before the officer, he or she is sometimes called a

quasi-judicial officer and when so acting, is usually given

immunity from liability to persons who may be injured

as the result of an erroneous decision, provided the acts

complained of are done within the scope of the offi-

cer’s authority and without willfulness, malice, or corrup-

tion. . . . However, quasi-judicial immunity from any suit

or damages based upon the performance of duties within

a person’s authority attaches not to particular offices, but

to particular official functions.133

We have previously recognized that the Parole Board exer-

cises independent discretion in deciding whether to grant parole

to a convicted offender.134 In addition, federal appellate courts

hold that parole boards have absolute immunity from suit when

they perform quasi-judicial functions such as granting, deny-

ing, or revoking parole.135

But Davis contends that the Parole Board was not exercising

discretion in revoking his parole, because it was not reviewing

his conduct while on parole. He argues that the revocation

hearing dealt only with the calculation of his parole eligibility,

which is a ministerial function to which quasi-judicial immu-

nity does not attach. Davis argues that instead of exercising

discretion, the Board blindly followed the Department’s lead

132

Id.

133

Id. at 188-89, 622 N.W.2d at 624.

134

See Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183

(1997).

135

See, Swift v. California, 384 F.3d 1184 (9th Cir. 2004); Montero v. Travis,

171 F.3d 757 (2d Cir. 1999); Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir.

1996); Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir. 1990).

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in incorrectly applying a mandatory minimum sentencing stat-

ute to revoke his parole.

At oral arguments, Davis relied on our decision in Pratt v.

Nebraska Bd. of Parole.136 He argued that it showed the Parole

Board was not entitled to immunity here, because it was not

exercising discretion. In Pratt, we considered an earlier version

of § 83-1,110, which set out the calculation requirements for

determining an offender’s parole eligibility date. We held that

the finding of parole eligibility is a ministerial duty that can be

enforced through a writ of mandamus. When we decided Pratt,

a recommendation of parole from an inmate’s sentencing judge

was a circumstance that required the Parole Board to consider

the inmate for parole, and such a letter had been presented to

the Parole Board. We stated that unlike the decision whether to

grant parole,

a finding of eligibility for parole was not discretionary.

Rather, it was the duty of the Board to recognize the

offender’s parole eligibility upon a showing of certain

facts, regardless of the Board’s own judgment or opinion

concerning the propriety or impropriety of such a deter-

mination. Therefore, the Board’s duty to recognize [the

prisoner’s] parole eligibility was ministerial. The Board

did not have to grant [him] parole, but it had the duty to

consider him for parole.137

[43] But this case is distinguishable from Pratt, because

the Parole Board was not refusing to exercise its discretion

to grant a parole. It was exercising its discretion to revoke

a parole in reliance on information provided to it from the

Department. Nebraska’s statutes require the Department to

provide the Parole Board with its calculations,138 and the Parole

Board is entitled to rely on them. Davis points to no statute or

136

Pratt, supra note 134.

137

Id. at 911, 567 N.W.2d at 188.

138

See Neb. Rev. Stat. §§ 83-1,107 (Cum. Supp. 2016) and 83-1,109 (Reissue

2014).

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regulation that requires the Parole Board to perform its own

calculations or investigations. Its mere reliance on evidence

presented to it does not change the nature of its function of

exercising independent discretion whether to grant, deny, or

revoke parole. Accordingly, the district that did not err in dis-

missing Davis’ § 1983 claims against the Parole Board’s past

or current members.

(e) Department’s Employees Are Entitled

to Qualified Immunity From

Davis’ § 1983 Claims

The court ruled that the state defendants who were not mem-

bers of the Parole Board were entitled to qualified immunity

from his due process and Eighth Amendment claims or that

Davis had not alleged their personal participation in an alleged

constitutional violation with sufficient specificity.

(i) General Principles of Qualified Immunity

[44,45] Most executive officials and employees are lim-

ited to asserting qualified immunity as an affirmative defense

against a personal capacity claim under § 1983.139 Qualified

immunity shields state officials from money damages unless

a plaintiff alleges facts that would, if proved, show (1) the

official violated a federally guaranteed right and (2) the consti-

tutional or statutory right was clearly established at the time of

the challenged conduct.140 A court can address the two compo-

nents of the qualified immunity analysis in either order.141

139

See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396

(1982).

140

See, Filarsky, supra note 101; Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.

Ct. 2074, 179 L. Ed. 2d 1149 (2011); Elder v. Holloway, 510 U.S. 510,

114 S. Ct. 1019, 127 L. Ed. 2d 344 (1994). Accord, e.g., Potter v. Board of

Regents, 287 Neb. 732, 844 N.W.2d 741 (2014); Ashby v. State, 279 Neb.

509, 779 N.W.2d 343 (2010).

141

Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565

(2009); Potter, supra note 140.

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[46,47] Because qualified immunity is immunity from suit,

a trial court should try to resolve “‘immunity questions at the

earliest possible stage in litigation.’”142 “‘[W]hether an official

protected by qualified immunity may be held personally liable

for an allegedly unlawful official action generally turns on the

“objective legal reasonableness” of the action, assessed in light

of the legal rules that were “clearly established” at the time it

was taken.’”143

[48] Whether a federal right is clearly established presents

a question of law.144 A court must consider whether the law is

clearly established as it relates to the particular facts of a case:

“[C]learly established law” should not be defined “at a

high level of generality.” . . . As this Court explained

decades ago, the clearly established law must be “par-

ticularized” to the facts of the case. . . . Otherwise,

“[p]laintiffs would be able to convert the rule of quali-

fied immunity . . . into a rule of virtually unquali-

fied liability simply by alleging violation of extremely

abstract rights.”145

The unlawfulness of a defendant’s conduct must be obvious or

apparent in the light of preexisting law.146 That is, the contours

of the right must be sufficiently clear that a reasonable official

would understand that his or her conduct violates that right.147

[49,50] To show a clearly established federal right, the U.S.

Supreme Court does “‘not require a case [to be] directly on

142

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272

(2001), overruled in part on other grounds, Pearson, supra note 141.

143

Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S. Ct. 1235, 182 L.

Ed. 2d 47 (2012), quoting Anderson v. Creighton, 483 U.S. 635, 107 S. Ct.

3034, 97 L. Ed. 2d 523 (1987).

144

Elder, supra note 140.

145

White v. Pauly, ___ U.S. ___, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463

(2017) (citations omitted).

146

Id.

147

See, e.g., Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).

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point, but existing precedent must have placed the statutory or

constitutional question beyond debate.’”148 Additionally, both

the Supreme Court and federal circuit courts have stated that a

federal right can be established by a robust consensus of cases

of persuasive authority.149

[51] Showing that a state defendant was negligent is insuf-

ficient to defeat a qualified immunity defense.150 “Qualified

immunity gives government officials breathing room to

make reasonable but mistaken judgments and protects all

but the plainly incompetent or those who knowingly violate

the law.”151

(ii) Application of Qualified Immunity Principles

to Department Employees

Davis alleged that he continually told Department employ-

ees verbally and through letters that his parole eligibility date

had been correctly calculated and that the mandatory minimum

sentence did not apply to him. The court essentially concluded

that there was no clearly established right to have an error-free

parole revocation and that the defendants’ mistaken belief that

Davis’ parole eligibility date was incorrect did not strip them

of qualified immunity.

We agree that Davis had no right to an error-free proceed-

ing. However, the qualified immunity issues were whether the

defendants were deliberately indifferent to Davis’ oral and writ-

ten protests—before and after they reincarcerated him—that

148

Taylor v. Barkes, ___ U.S. ___, 135 S. Ct. 2042, 2044, 192 L. Ed. 2d 78

(2015).

149

See, e.g., Ashcroft, supra note 140; Wilson v. Layne, 526 U.S. 603, 119

S. Ct. 1692, 143 L. Ed. 2d 818 (1999); Booker v. South Carolina Dept. of

Corrections, 855 F.3d 533 (4th Cir. 2017); De La Rosa v. White, 852 F.3d

740 (8th Cir. 2017); Mammaro v. N.J. Div. of Child Prot. and Permanency,

814 F.3d 164 (3d Cir. 2016).

150

See, Potter, supra note 140; Ashby, supra note 140.

151

Potter, supra note 140, 287 Neb. at 740, 844 N.W.2d at 750, citing

Messerschmidt, supra note 143.

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they had calculated his parole eligibility date incorrectly, and

whether a reasonable Department official or employee should

have known that the time the Department took to correct the

calculation of Davis’ parole eligibility date was unlawful in

light of the clearly established law.

The court could not know whether the Department employ-

ees were deliberately indifferent to Davis’ protests or which

employees or officials would have seen his letters protest-

ing his reincarceration. The State did not file a responsive

pleading. It is true that the Department’s second release of

Davis 2 months later is some indication that its employees

investigated his complaint. But giving Davis the benefit of all

reasonable inferences, his allegations could equally suggest

that for a significant period of this time, the Department’s

employees did nothing to investigate. This is a reasonable

inference because the computation did not involve complex

facts or laws.

But we do not believe that at the time of Davis’ reincarcera-

tion, the law clearly established that the Department employees

would violate a federal right by failing to promptly respond to

Davis’ claim that they had miscalculated his parole eligibility

date. Both the Eighth Circuit and the Seventh Circuit have

held that under both the 8th and 14th Amendments, inmates

have a clearly established right to be free from wrongful,

prolonged incarceration.152 And we conclude that extending

this rule to wrongful recommitments based on a miscalculated

parole eligibility date is required by the U.S. Supreme Court’s

holding in Morrissey that parolees have a valuable liberty

interest in their continued parole.153

But the typical miscalculation case involves a State’s wrong-

ful incarceration of an inmate beyond his or her release date.

Davis has not pointed to a case in which a court has held

that a State has or can violate an offender’s 14th Amendment

152

See, Figgs v. Dawson, 829 F.3d 895 (7th Cir. 2016); Scott, supra note 121.

153

See Morrissey, supra note 105.

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rights by being deliberately indifferent to the parolee’s claim

that he or she has been wrongly reincarcerated. Our research

has uncovered only one somewhat comparable federal appel-

late decision dealing with a parolee’s delayed release from

parole.154 Moreover, in Morrissey, the Court held that a lapse

of 2 months before a parolee receives a revocation hearing for

an alleged parole violation is not unreasonable.155

Given this precedent and the paucity of persuasive case law

dealing with a State’s deliberate indifference to a parolee’s

claim of a mistaken revocation, the Department’s officials

and employees did not violate a clearly established right to a

prompt investigation of Davis’ complaint.

(f) Court Properly Dismissed Davis’ § 1983

Claim Against State Defendants With

No Responsibility for Parole

Eligibility Calculations

[53] Vicarious liability is unavailable in a § 1983 action:

“[A] plaintiff must plead that each Government-official defend­

ant, through the official’s own individual actions, has violated

the Constitution.”156 But even if Davis could show that the

state defendants had knowledge of his complaints and were

deliberately indifferent to them, he could not show that they

should have known they would violate a clearly established

right by doing so. The court therefore did not err in dismissing

his § 1983 claims against all the defendants.

Because we conclude that the state defendants were entitled

to qualified immunity against Davis’ § 1983 claims against the

defendants, we do not reach his assignment that the court erred

in determining that he had failed to plead his § 1983 claims

with sufficient specificity.

154

See Hankins v. Lowe, 786 F.3d 603 (7th Cir. 2015).

155

See Morrissey, supra note 105.

156

Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 173 L. Ed. 2d 868

(2009).

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4. Davis’ Opportunity to A mend

Finally, Davis argues that he asked the court for leave to

amend during the hearing and that the court erred in dismiss-

ing his complaint without giving him that opportunity. Under

§ 6-1115(a), a “party may amend [its] pleading once as a mat-

ter of course before a responsive pleading is served.”

The district court did not specify whether it was dismissing

Davis’ complaint with prejudice, but we agree that this was

the court’s intent. Nevertheless, there is no need to separately

consider the appropriateness of that dismissal. Our review of

Davis’ appeal has subsumed his argument that the court erred

in dismissing his complaint without an opportunity to amend.

And that review has led us to the conclusion that an amend-

ment would not cure the defects in Davis’ complaint.

VI. CONCLUSION

Regarding Davis’ negligence claim, we conclude that the

claim rests on allegations that the state defendants unlaw-

fully reincarcerated him because they miscalculated his parole

eligibility date. As such, his claim is one arising out of false

imprisonment, which is a claim barred by sovereign immunity,

because it is specifically excepted from the State’s waiver of

immunity under the STCA. Although the defendants did not

raise this exception to the district court, we conclude that an

STCA exception can be raised for the first time on appeal and

considered by a court sua sponte.

Regarding Davis’ § 1983 claims, the court did not err in

dismissing his claims against the Parole Board, because its

members were entitled to absolute quasi-judicial immunity

from suit and the Parole Board itself is an arm of the State

that cannot be sued in a § 1983 action. The court also did not

err in dismissing Davis’ § 1983 claims against the remaining

state defendants, because he cannot show that they violated a

clearly established right to a prompt investigation of Davis’

complaint that he was wrongly reincarcerated.

A ffirmed.