# D.M. v. State

> Nebraska Court of Appeals · March 13, 2018 · 25 Neb. Ct. App. 596

URL: https://www.frixlaw.com/law-library/cases/4256170

## Case

- **Court:** Nebraska Court of Appeals
- **Decided:** March 13, 2018
- **Citations:** 25 Neb. Ct. App. 596
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/20/2018 08:12 AM CDT

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D.M., appellee, v. State of Nebraska et al.,
appellees, and Geoff Britton and
Michael L. K enney, appellants.
___ N.W.2d ___

Filed March 13, 2018. No. A-16-587.

1. Jurisdiction: Appeal and Error. An appellate court determines juris-
dictional questions that do not involve a factual dispute as a matter
of law.
2. Motions to Dismiss: Appeal and Error. A district court’s denial of a
motion to dismiss is reviewed de novo.
3. ____: ____. An appellate court reviewing the denial of a motion to
dismiss accepts as true all facts which are well pled and the proper and
reasonable inferences of law and fact which may be drawn therefrom,
but not the plaintiff’s conclusions.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
5. Final Orders: Appeal and Error. Generally, only final orders are
appealable.
6. ____: ____. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), the three
types of final orders that an appellate court may review are (1) an
order that affects a substantial right and that determines the action and
prevents a judgment, (2) an order that affects a substantial right made
during a special proceeding, and (3) an order that affects a substan-
tial right made on summary application in an action after a judgment
is rendered.
7. Motions to Dismiss: Final Orders. Denial of a motion to dismiss is not
a final order.
8. Final Orders. The collateral order doctrine is an exception to the final
order rule.
9. Final Orders: Immunity: Appeal and Error. Under the collateral
order doctrine, the denial of a claim of qualified immunity is appealable,
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notwithstanding the absence of a final judgment, if the denial of immu-
nity turns on a question of law.
10. Civil Rights: Public Officers and Employees: Immunity. Qualified
immunity provides a shield from liability for public officials sued under
42 U.S.C. § 1983 (2012) in their individual capacities, so long as the
official’s conduct does not violate clearly established statutory or consti-
tutional rights of which a reasonable person would have known.
11. Trial: Immunity. Where appropriate, the issues relating to qualified
immunity may be determined via a separate trial or evidentiary hearing.
12. Final Orders: Appeal and Error. In order to determine whether a case
presents an order reviewable under the collateral order doctrine, an
appellate court engages in a three-part inquiry: (1) whether the plaintiff
has alleged the violation of a constitutional right, (2) whether that right
was clearly established at the time of the alleged violation, and (3)
whether the evidence shows that the particular conduct alleged was a
violation of the right at stake.
13. Immunity: Pretrial Procedure: Appeal and Error. A district court’s
pretrial rejection of a qualified immunity defense is not immediately
appealable to the extent that it turns on either an issue of fact or an issue
perceived by the trial court to be an issue of fact.
14. Constitutional Law: Public Officers and Employees: Proof. In order
to succeed on a First Amendment retaliation claim, a plaintiff must
show that (1) he or she engaged in a protected activity, (2) the govern-
ment official took adverse action against him or her that would chill a
person of ordinary firmness from continuing in the activity, and (3) the
adverse action was motivated at least in part by the exercise of the pro-
tected activity.
15. Constitutional Law: Due Process: Proof. The 14th Amendment’s Due
Process Clause protects persons against deprivations of life, liberty, or
property; and those who seek to invoke its procedural protection must
establish that one of these interests is at stake. A liberty interest may
arise from the Constitution itself, by reason of guarantees implicit in the
word “liberty,” or it may arise from an expectation or interest created by
state laws or policies.
16. Due Process: Prisoners. An allegation by an inmate that his or her
due process rights were violated by virtue of his or her placement in
administrative segregation, without more, does not implicate a lib-
erty interest. In order to rise to the level of a due process violation,
the segregation must result in deprivations which work such major
disruptions in a prisoner’s environment and life that they present dra-
matic departures from the basic conditions and ordinary incidents of
prison sentences.
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17. Equal Protection. The Equal Protection Clause of the 14th Amendment
commands that no State shall deny to any person within its jurisdiction
the equal protection of the laws, which is essentially a direction that all
persons similarly situated should be treated alike.
18. Equal Protection: Prisoners: Discrimination: Proof. Absent asser-
tion of membership in a protected class or violation of a fundamental
right, an equal protection claim arising from placement in segregation
requires showing that similarly situated classes of inmates were treated
differently, that difference in treatment bore no rational relation to any
legitimate penal interest, and that there was intentional or purpose-
ful discrimination.
19. Constitutional Law: Prisoners. The Constitution does not mandate
comfortable prisons, but neither does it permit inhumane ones, and it
is now settled that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the
Eighth Amendment.
20. Constitutional Law: Public Officers and Employees: Prisoners. A
prison official violates the Eighth Amendment only when two require-
ments are met. First, the deprivation alleged must be, objectively, suf-
ficiently serious. This means that a prison official’s act or omission
must result in the denial of the minimal civilized measure of life’s
necessities. The second requirement follows from the principle that only
the unnecessary and wanton infliction of pain implicates the Eighth
Amendment.
21. Constitutional Law: Public Officers and Employees: Prisoners:
Liability. To violate the Cruel and Unusual Punishment Clause, a prison
official must have a sufficiently culpable state of mind. In prison-­
conditions cases, that state of mind is one of deliberate indifference to
inmate health or safety, meaning that the prison official cannot be held
liable under the Eighth Amendment unless the official knows of and
disregards an excessive risk to inmate health or safety. The official must
both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he or she must also draw
the inference.
22. Constitutional Law: Public Officers and Employees: Liability:
Proof. The standard by which a supervisor is held liable under 42
U.S.C. § 1983 (2012) in his or her individual capacity for the actions of
a subordinate is extremely rigorous. The plaintiff must establish that the
supervisor personally participated in the unconstitutional conduct or was
otherwise the moving force of the violation by authorizing, approving,
or knowingly acquiescing in the unconstitutional conduct.
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Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Reversed in part, and in part dismissed.
Douglas J. Peterson, Attorney General, David A. Lopez, and
Maddisen Ebert and Joshua Baumann, Senior Certified Law
Students, for appellants.
Julie A. Jorgensen, of Morrow, Willnauer, Klosterman &
Church, for appellee D.M.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
While incarcerated at the Omaha Correctional Center, D.M.
was sexually assaulted by a guard. D.M. sued the State, the
Nebraska Department of Correctional Services (DCS), and
various individual defendants in their official and individual
capacities. This appeal involves two of those defendants, Geoff
Britton (an investigator for the DCS) and Michael L. Kenney
(warden of the Omaha Correctional Center), and the remaining
constitutional claims pending against them. Both filed motions
to dismiss the remaining claims for failure to state a claim, and
both alleged they were entitled to qualified immunity as a mat-
ter of law. The district court for Douglas County overruled the
motions, and Britton and Kenney filed interlocutory appeals
challenging the district court’s order denying their entitlement
to qualified immunity.
Because D.M.’s First Amendment claim necessitates
resolving a fact-related dispute, we conclude this part of the
appeal is not immediately reviewable under the collateral
order doctrine and we dismiss the appeal in part as to the
First Amendment issue for lack of jurisdiction. However,
we conclude D.M. failed to establish a violation of his 8th
and 14th Amendment rights as to Britton and Kenney; there-
fore, they are entitled to qualified immunity on those claims.
We reverse the district court’s order to the extent it denied
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Britton and Kenney qualified immunity on the 8th and 14th
Amendment claims.
II. BACKGROUND
Due to the procedural posture of this case, the facts con-
sidered are those alleged in D.M.’s amended complaint. D.M.
states that he was sexually assaulted by Anthony Hansen,
a guard, in the commons area of the Omaha Correctional
Center. D.M. reported the sexual assault to Jim Brown, his
unit manager, immediately after it occurred. D.M. also com-
pleted a formal complaint and grievance form. Thereafter,
D.M. was placed in segregation for more than 30 days while
corrections/prison officials investigated the allegations made
against Hansen.
While in segregation, D.M. was isolated from the general
population and allowed no contact with other inmates. He had
limited telephone privileges and was instructed not to speak
to anyone about his allegations, including friends and family.
Prison guards were instructed not to speak with D.M. Britton
repeatedly interrogated D.M. about the incident, told D.M.
that he would get jail time for lying about Hansen, encouraged
D.M. to change his story, and told D.M. that he was “ruining
the life” of Hansen and Hansen’s wife, who also worked at
the facility.
Hansen was allowed to work for some time during the inves-
tigation, but was eventually placed on paid leave, while D.M.
remained in segregation. D.M. requested that he be transferred
to another facility rather than remain in segregation, but was
told that there was no room and that he would not be trans-
ferred. D.M. repeatedly requested counseling services, but
none were initially provided.
After the investigation, Hansen pled guilty to sexual assault.
D.M. was then transferred from his minimum security facility
to a maximum security facility with a “reputation for violence.”
After transfer and numerous requests, D.M. was approved for
counseling and received two sessions before his release.
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D.M. filed a complaint against the State in December 2013.
D.M. brought tort claims for negligent hiring/­ supervising,
failure to protect, and respondeat superior against the State
and the DCS; Robert P. Houston (director of the DCS), Britton
(then known as John Doe #1), and Brown, in both their indi-
vidual and official capacities; and Hansen, in both his individ-
ual and official capacities. Several persons and entities filed a
motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6)
for failure to state a claim and also on the ground of sovereign
immunity. Filing the motion to dismiss were Houston, in both
his individual and official capacities; the State; the DCS; and
John Doe #1, Brown, and Hansen, in their official capacities
only. See D.M. v. State, 23 Neb. App. 17, 867 N.W.2d 622
(2015), overruled on other grounds, Davis v. State, 297 Neb.
955, 902 N.W.2d 165 (2017). The district court dismissed
D.M.’s entire complaint with prejudice, concluding that all of
his claims were barred by sovereign immunity. Id. On appeal,
we affirmed in part, and in part reversed and remanded for
further proceedings, because we found that sovereign immu-
nity did not apply to all of D.M.’s claims and all of the
defend­ants. Id.
D.M. filed an amended complaint in December 2015 against
the State; the DCS; and Houston, Britton (formerly John
Doe #1), Kenney, Brown, and Hansen in their individual
and official capacities. D.M. alleged six causes of action:
(1) First Amendment retaliation (against all defendants), (2)
violation of equal protection and due process (against all
defendants), (3) cruel and unusual punishment (against all
defendants) under the Nebraska and federal Constitutions, (4)
intentional infliction of emotional distress (against Hansen
only), (5) intentional infliction of emotional distress (against
all defendants), and (6) negligent infliction of emotional dis-
tress (against all defendants).
In December 2015, the State and the DCS, along with
Houston, Britton, Brown, and Hansen (in their official capaci-
ties only), filed a motion to dismiss the entire amended
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complaint. The district court subsequently granted the motion
in part, dismissing D.M.’s fifth cause of action (intentional
infliction of emotional distress) and sixth cause of action
(negligent infliction of emotional distress) with prejudice.
As to Britton and Kenney, this left only the three constitu-
tional claims.
In March 2016, Britton and Kenney filed identical motions
to dismiss D.M.’s amended complaint for failure to state a
claim upon which relief can be granted and/or because they
were entitled to qualified immunity as a matter of law. After
a hearing, the district court denied these motions on May
20. Britton and Kenney filed an interlocutory appeal from
that order.

III. ASSIGNMENTS OF ERROR
Britton and Kenney assign that the district court erred in (1)
overruling their motions to dismiss on the ground of qualified
immunity and (2) denying their individual assertions of quali-
fied immunity without issuing an “individualized analysis” of
each claim.

IV. STANDARD OF REVIEW
[1] An appellate court determines jurisdictional questions
that do not involve a factual dispute as a matter of law. Carney
v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).
[2] A district court’s denial of a motion to dismiss is reviewed
de novo. See Brothers v. Kimball Cty. Hosp., 289 Neb. 879,
857 N.W.2d 789 (2015). See, also, StoreVisions v. Omaha Tribe
of Neb., 281 Neb. 238, 795 N.W.2d 271 (2011), modified on
denial of rehearing 281 Neb. 978, 802 N.W.2d 420.
[3] An appellate court reviewing the denial of a motion
to dismiss accepts as true all facts which are well pled and
the proper and reasonable inferences of law and fact which
may be drawn therefrom, but not the plaintiff’s conclusions.
See Tryon v. City of North Platte, 295 Neb. 706, 890 N.W.2d
784 (2017).
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V. ANALYSIS
[4-6] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. Hallie Mgmt. Co. v.
Perry, 272 Neb. 81, 718 N.W.2d 531 (2006). Generally, only
final orders are appealable. Carney, supra. Under Neb. Rev.
Stat. § 25-1902 (Reissue 2016), the three types of final orders
that an appellate court may review are (1) an order that affects
a substantial right and that determines the action and prevents
a judgment, (2) an order that affects a substantial right made
during a special proceeding, and (3) an order that affects a sub-
stantial right made on summary application in an action after a
judgment is rendered. Carney, supra.
[7-9] The present appeal is taken from the district court’s
order overruling Britton’s and Kenney’s motions to dismiss,
both of which asserted D.M.’s amended complaint failed to
state a claim upon which relief could be granted and/or claimed
entitlement to qualified immunity as a matter of law. Denial
of a motion to dismiss is not a final order. See Hallie Mgmt.
Co., supra. However, the collateral order doctrine is an excep-
tion to the final order rule. Carney, supra. Britton and Kenney
assert that our jurisdiction is proper under the collateral order
doctrine. Under the collateral order doctrine, the denial of a
claim of qualified immunity is appealable, notwithstanding the
absence of a final judgment, if the denial of immunity turns on
a question of law. Carney, supra.

1. Collateral Order Doctrine
We take a moment to address the status of the collateral
order doctrine in Nebraska. Last year, the Nebraska Supreme
Court decided Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d
296 (2017), wherein it overruled eight enumerated cases, origi-
nating with Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d
430 (1997), that allowed interlocutory appeals through the
collateral order doctrine for orders disqualifying counsel in a
civil case. The Supreme Court engaged in a detailed discussion
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of the right to appeal in Nebraska, reiterating that the right is
“‘purely statutory.’” Heckman, 296 Neb. at 461, 894 N.W.2d at
299. “In other words, unless a statute provides for an appeal,
such right does not exist. The right to appeal does not exist at
common law.” Id.
Heckman, supra, refers to Richardson-Merrell Inc. v. Koller,
472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985),
wherein the U.S. Supreme Court made clear that the collateral
order doctrine is a narrow exception limited to trial court orders
affecting rights that would be irretrievably lost in the absence
of an immediate appeal. To fall within the federal collateral
order doctrine, an order must (1) conclusively determine the
disputed question, (2) resolve an important issue completely
separate from the merits of the action, and (3) be effectively
unreviewable on appeal from final judgment. See id. Heckman
concluded that orders disqualifying counsel in civil cases did
not satisfy the third requirement.
Although Heckman, supra, eliminated the use of the col-
lateral order doctrine to file interlocutory appeals from orders
disqualifying counsel, we do not read Heckman to eliminate
the collateral order doctrine for appeals concerning qualified
immunity. We reach this conclusion for several reasons. First,
in Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014),
our Supreme Court concluded it had jurisdiction under the
collateral order doctrine over an appeal from an order deny-
ing a motion for summary judgment which involved a claim
of qualified immunity. Ordinarily, an appeal from an order
denying summary judgment is not a final, appealable order;
however, under the collateral order doctrine, the denial of a
claim of qualified immunity may be appealable if it presents
only questions of law. See id. Second, the cases specifically
enumerated and overruled in Heckman, supra, considered the
collateral order doctrine as it related to interlocutory appeals
from attorney disqualification orders, and it did not specifically
overrule Carney, supra, and its application of the doctrine to
qualified immunity appeals. Finally, the U.S. Supreme Court
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and the Nebraska Supreme Court have emphasized the impor-
tance of resolving qualified immunity questions at the earliest
possible stage in litigation. See Hunter v. Bryant, 502 U.S. 224,
112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). See, also, Waldron v.
Roark, 298 Neb. 26, 902 N.W.2d 204 (2017) (noting that both
U.S. Supreme Court and Eighth Circuit Court of Appeals have
repeatedly stressed importance of resolving immunity questions
at earliest possible stage in litigation; those entitled to qualified
immunity hold more than mere defense to liability, they hold
entitlement not to stand trial or face other burdens of litigation
and if case is erroneously permitted to go to trial, then quali-
fied immunity is effectively lost). Accordingly, having deter-
mined that Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d
296 (2017), did not abrogate the collateral order doctrine with
respect to appeals involving qualified immunity which pre­sent
purely questions of law, we turn to Britton’s and Kenney’s
claims of qualified immunity raised in the present appeal.

2. Qualified Immunity
[10,11] Qualified immunity provides a shield from liability
for public officials sued under 42 U.S.C. § 1983 (2012) in
their individual capacities, so long as the official’s conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. Carney
v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). In some
instances, it might be unclear, based upon the record before a
court, whether a defendant is entitled to qualified immunity.
Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007). In
those instances, “‘[a] hearing would likely clarify the matter.
It may be that resolution of the qualified immunity defense
. . . depends upon the resolution of disputed fact issues or on a
credibility determination. . . .’” Id. at 986, 735 N.W.2d at 391
(quoting Johnson v. Garraghty, 57 F. Supp. 2d 321 (E.D. Va.
1999)). Thus, where appropriate, the issues relating to qualified
immunity may be determined via a separate trial or evidentiary
hearing. Carney, supra.
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[12] In order to determine whether a case presents an order
reviewable under the collateral order doctrine, an appellate
court engages in a three-part inquiry. Carney, supra. First, we
determine whether the plaintiff has alleged the violation of
a constitutional right. Id. Second, we determine whether that
right was clearly established at the time of the alleged viola-
tion. Id. Finally, we determine whether the evidence shows that
the particular conduct alleged was a violation of the right at
stake. Id. The first two inquiries are questions of law; the last
could require factual determinations to the extent that evidence
is in conflict. Id.
Determining whether the plaintiff alleged a violation of a
constitutional right and whether that right was clearly estab-
lished are questions of law. Id. Evaluating whether the evi-
dence shows that the particular conduct alleged violated the
right at stake could require factual determinations to the extent
that evidence is in conflict. See id. If this analysis requires
factual determinations, it is not purely a question of law and
we lack jurisdiction to review the denial of qualified immunity
under the collateral order doctrine. See id.
We first consider the district court’s order denying Britton’s
and Kenney’s motions to dismiss based on assertions of quali-
fied immunity.

(a) District Court’s Order
Regarding Immunity Claims
The State asserts that the district court erred in failing to
issue a reasoned, thorough, and individualized analysis of
Britton’s and Kenney’s qualified immunity claims. In both
motions to dismiss, Britton and Kenney each asserted he was
“entitled to qualified immunity as a matter of law.” It has been
held that officials are entitled to a thorough determination of
their claims of qualified immunity if that immunity is to mean
anything at all. Saylor v. Nebraska, 812 F.3d 637 (8th Cir.
2016). A thorough determination discusses all of the claims
litigated. Id.
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In this case, the district court’s order stated:
On the 14th day of April, 2016 the motions to dismiss
of . . . Kenney and . . . Britton came on for hearing. The
parties appeared by counsel. Arguments were made and
the matters were taken under advisement.
The Court finds that the motions of . . . Kenney and
Britton should be overruled and denied.
The State argues that the district court’s failure to make a rea-
soned, thorough, and individualized analysis of Britton’s and
Kenney’s qualified immunity assertion warrants remanding the
cause to the district court for such determinations in the event
this court declines to consider the issues. We elect to consider
the qualified immunity claims under the framework of Carney
v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). Accordingly,
we will consider whether (1) D.M. alleged the violation of a
constitutional right, (2) whether that right was clearly estab-
lished at the time of the alleged violation, and (3) whether
the evidence shows that the particular conduct alleged was a
violation of the right at stake. See id. We keep in mind that the
first two inquiries present questions of law and that the last
could require factual determinations to the extent the evidence
is in conflict. See id.
As discussed further below, we conclude we have jurisdic-
tion over the 8th and 14th Amendment claims and can address
qualified immunity as to those allegations. However, we begin
with D.M.’s First Amendment claim and conclude we do not
have jurisdiction to immediately review Britton’s and Kenney’s
claims of qualified immunity under the collateral order doc-
trine as to D.M.’s retaliation claim.
(b) First Amendment Retaliation
D.M. claims that he engaged in constitutionally protected
speech when he reported the sexual assault. He further claims
that in retaliation for his report, he was placed in segrega-
tion, guards were instructed not to speak to him or acknowl-
edge him, and his privileges and his contact with others
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were limited or excluded entirely, all in violation of his First
Amendment rights.
The right to be free from retaliation for utilizing a prison
grievance process is a right protected by the First Amendment.
See Santiago v. Blair, 707 F.3d 984 (8th Cir. 2013). Therefore,
D.M. has alleged a violation of a constitutionally protected
right based on his allegation that his report of the sexual
assault by Hansen subjected him to segregation and the other
conditions described above. The first portion of the collateral
order jurisdictional analysis set forth in Carney, supra, is satis-
fied. Next, we consider whether this right was clearly estab-
lished at the time of the alleged violation.
For a right to be “‘clearly established,’” the contours of
the right must be sufficiently clear that a reasonable offi-
cial would understand that what he was doing violates that
right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.
3034, 97 L. Ed. 2d 523 (1987). The right to be free from
retaliation when using a prison grievance system was clearly
established at the time of the alleged violation. See, Nelson v.
Shuffman, 603 F.3d 439 (8th Cir. 2010) (holding that plaintiff
who allegedly was held in isolation in structurally unfinished
and inadequate ward and deprived of access to legal counsel,
mail, family, recreation, and telephone calls demonstrated
sufficient deprivations to survive summary judgment on First
Amendment retaliation claim); Cooper v. Schriro, 189 F.3d
781 (8th Cir. 1999) (allegation correctional officer shut off
water for 5 days because prisoner used prison grievance sys-
tem sufficient to state retaliation claim); Burgess v. Moore, 39
F.3d 216 (8th Cir. 1994) (threat made in retaliation for pris-
oner’s use of prison grievance system sufficient to state First
Amendment retaliation claim). D.M.’s amended complaint
alleged a violation of a clearly established constitutional right,
and therefore, the first two requirements of the collateral order
jurisdictional analysis for D.M.’s First Amendment retaliation
claim are satisfied.
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[13] The third factor requires us to determine whether the
evidence shows that the particular alleged conduct was a vio-
lation of the right at stake. A district court’s pretrial rejection
of a qualified immunity defense is not immediately appealable
to the extent that it turns on either an issue of fact or an issue
perceived by the trial court to be an issue of fact. Carney v.
Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). Although the
district court did not provide any insight as to why it rejected
Britton’s and Kenney’s motions to dismiss, we conclude that
for purposes of a motion to dismiss, an analysis of D.M.’s First
Amendment claim requires factual determinations and cannot
be decided as a matter of law, as discussed next.
[14] In order to succeed on a First Amendment retalia-
tion claim, D.M. must show that (1) he or she engaged in a
protected activity, (2) the government official took adverse
action against him or her that would chill a person of ordinary
firmness from continuing in the activity, and (3) the adverse
action was motivated at least in part by the exercise of the
protected activity. See Saylor v. Nebraska, 812 F.3d 637 (8th
Cir. 2016).
As discussed above, utilizing the prison grievance proce-
dures to report the sexual assault was a protected activity,
satisfying the first prong of the First Amendment retaliation
analysis. However, determining whether Britton and Kenney
engaged in adverse actions which would chill a person of
ordinary firmness from using the prison grievance system
and, if there were such adverse actions, determining whether
such actions were motivated at least in part by D.M. filing
his report present issues of fact. There is insufficient informa-
tion at this stage of the proceedings to know whether any of
the actions attributed to Britton and/or Kenney were designed
to keep D.M. safe and preserve the integrity of the ongo-
ing investigation or whether such actions were retaliatory in
nature. These are issues of fact yet to be resolved. And as set
forth in Carney, supra, an appellate court lacks jurisdiction
over qualified immunity appeals under the collateral order
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doctrine that turn on issues of fact. Therefore, we conclude
this part of the appeal is not immediately reviewable under the
collateral order doctrine and we dismiss the appeal for lack of
jurisdiction as to the First Amendment issue.
(c) Equal Protection and Due Process
D.M.’s second cause of action is titled “Violation of Equal
Protection and Due Process.” Within this cause of action, D.M.
alleged that he was “subjected to atypical and significant hard-
ship that other prisoners did not suffer, specifically shunning
and lack of verbal contact with any human within the prison,
except for verbal contact in the form of repeated interroga-
tions and threats of prosecution.” He further alleged that he
was treated differently than other inmates placed in segrega-
tion and that there was no rational basis for such treatment.
This language indicates separate claims for due process and
equal protection under the 14th Amendment. (We note that
D.M. includes the Fifth Amendment when making allegations
in his amended complaint related to Due Process and Equal
Protection, but as noted by the State in its brief, the Fifth
Amendment only restrains the federal government and nei-
ther Britton nor Kenney are federal employees. See Livers v.
Schenck, 700 F.3d 340 (8th Cir. 2012).)
(i) Due Process
[15] The 14th Amendment’s Due Process Clause protects
persons against deprivations of life, liberty, or property; and
those who seek to invoke its procedural protection must estab-
lish that one of these interests is at stake. Wilkinson v. Austin,
545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005). D.M.
did not allege deprivation of his life or property. He alleged
violations of a protected liberty interest, e.g., he suffered
“atypical and significant hardship.” A liberty interest may arise
from the Constitution itself, by reason of guarantees implicit in
the word “liberty,” or it may arise from an expectation or inter-
est created by state laws or policies. Id.
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The Constitution does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of confinement.
Id. However, a liberty interest in avoiding particular conditions
of confinement may arise from state policies or regulations. Id.
But these interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless “imposes atypical
and significant hardship on the inmate in relation to the ordi-
nary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).
[16] Absent extraordinary circumstances, administrative seg-
regation as such, being an incident to the ordinary life as a
prisoner, will never be a ground for a constitutional claim.
Pichardo v. Kinker, 73 F.3d 612 (5th Cir. 1996). An allegation
by an inmate that his due process rights were violated by virtue
of his or her placement in administrative segregation, without
more, does not implicate a liberty interest. Christianson v.
Clarke, 932 F. Supp. 1178 (D. Neb. 1996). In order to rise
to the level of a due process violation, the segregation must
result in “deprivations which work such major disruptions in
a prisoner’s environment and life that they present dramatic
departures from the basic conditions and ordinary incidents of
prison sentences.” Moorman v. Thalacker, 83 F.3d 970, 972
(8th Cir. 1996).
We conclude that we have jurisdiction over D.M.’s due
proc­ess claim under the collateral order doctrine because it
does not present an issue of fact. D.M.’s allegation that his
placement into segregation, and the conditions associated with
that, may have presented more difficult conditions than the
general prison population. However, such allegations fail to
establish a due process claim as a matter of law. As we noted
above, the segregation must result in “deprivations which work
such major disruptions in a prisoner’s environment and life
that they present dramatic departures from the basic condi-
tions and ordinary incidents of prison sentences.” Moorman,
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83 F.3d at 972. D.M. failed to allege facts that rise to this legal
threshold, and thus, Britton and Kenney are entitled to quali-
fied immunity on D.M.’s due process claim.
(ii) Equal Protection
D.M. also alleged violations of his 14th Amendment right
to equal protection. D.M.’s allegation of an equal protection
violation consists of one sentence: “[D.M.] was also treated
differently than other inmates placed in segregation and there
was no rational basis for [his] treatment.”
[17,18] The Equal Protection Clause of the 14th Amendment
commands that no State shall “deny to any person within its
jurisdiction the equal protection of the laws,” which is essen-
tially a direction that all persons similarly situated should be
treated alike. Cleburne v. Cleburne Living Center, Inc., 473
U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). However,
prison administrators should be accorded wide-ranging defer-
ence in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security. Bell v.
Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447
(1979). Absent assertion of membership in a protected class
or violation of a fundamental right, an equal protection claim
arising from placement in segregation requires showing that
similarly situated classes of inmates were treated differently,
that difference in treatment bore no rational relation to any
legitimate penal interest, and that there was intentional or
purposeful discrimination. See Phillips v. Norris, 320 F.3d 844
(8th Cir. 2003).
We conclude we have jurisdiction over the equal protection
claim under the collateral order doctrine because it does not
present a factual issue, as D.M. did not allege a valid claim as
a matter of law. D.M. did not allege that he is a member of a
protected class and did not allege a violation of a fundamental
right. Although D.M. did allege that he was treated differ-
ently than other inmates in segregation, he alleged no facts to
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describe or support this allegation. We cannot conclude that his
treatment had no rational relation to a legitimate penal interest
or that his treatment constituted purposeful or intentional dis-
crimination for purposes of his equal protection claims. D.M.
failed to allege facts that rise to this legal threshold, and thus,
Britton and Kenney are entitled to qualified immunity on the
14th Amendment equal protection claim.

(d) Cruel and Unusual Punishment
D.M. alleged that his time and treatment in segregation was
cruel and unusual punishment because he was subjected to
more than 30 days in total isolation with his only verbal con-
tact coming in the form of interrogation and threats. He further
alleged that the sexual assault by Hansen constituted cruel and
unusual punishment.
[19] The Constitution does not mandate comfortable prisons,
but neither does it permit inhumane ones, and it is now settled
that the treatment a prisoner receives in prison and the condi-
tions under which he is confined are subject to scrutiny under
the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 114
S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Eighth Amendment
imposes duties on prison officials, who must provide humane
conditions of confinement; prison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical
care, and must take reasonable measure to guarantee the safety
of inmates. Farmer, supra. Some conditions of confinement
may establish an Eighth Amendment violation in combination
when each would not do so alone, but only when they have a
mutually enforcing effect that produces the deprivation of a
single, identifiable human need such as food, warmth, or exer-
cise—for example, a low cell temperature at night combined
with a failure to issue blankets. Wilson v. Seiter, 501 U.S. 294,
111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991).
[20,21] A prison official violates the Eighth Amendment
only when two requirements are met. Farmer, supra. First, the
deprivation alleged must be, objectively, sufficiently serious.
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Id. This means that a prison official’s act or omission must
result in the denial of the minimal civilized measure of life’s
necessities. Id. The second requirement follows from the prin-
ciple that only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment. Farmer, supra. To violate
the Cruel and Unusual Punishment Clause, a prison offi-
cial must have a sufficiently culpable state of mind. Farmer,
supra. In prison-conditions cases, that state of mind is one of
“‘deliberate indifference’” to inmate health or safety, meaning
that the prison official cannot be held liable under the Eighth
Amendment unless the official knows of and disregards an
excessive risk to inmate health or safety. Farmer, 511 U.S.
at 834. The official must both be aware of facts from which
the inference could be drawn that a substantial risk of seri-
ous harm exists, and he or she must also draw the inference.
Farmer, supra.
[22] D.M. failed to allege that he was deprived of a single
basic, human need, let alone some combination of deprivation.
His allegation that placement in isolation qualifies as a depri-
vation serious enough to implicate the Eighth Amendment
does not pass muster. He failed to state a claim as a matter of
law. In addition, D.M.’s allegation that his sexual assault by
Hansen qualified as cruel and unusual punishment does not
implicate either Britton or Kenney. The standard by which
a supervisor is held liable under § 1983 in his or her indi-
vidual capacity for the actions of a subordinate is extremely
rigorous. D.M. v. State, 23 Neb. App. 17, 867 N.W.2d 622
(2015), overruled on other grounds, Davis v. State, 297 Neb.
955, 902 N.W.2d 165 (2017). The plaintiff must establish that
the supervisor personally participated in the unconstitutional
conduct or was otherwise the moving force of the viola-
tion by authorizing, approving, or knowingly acquiescing in
the unconstitutional conduct. Id. Kenney is not alleged to
have participated in the sexual assault or to have otherwise
authorized, approved, or knowingly acquiesced in the assault.
Similarly, D.M. does not allege that Britton participated in,
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directed, encouraged, knew about, or was in any way aware of
the assault before it happened. D.M. failed to allege facts that
rise to the legal threshold for an Eighth Amendment claim as
to Britton and Kenney, and thus, they are entitled to qualified
immunity on the Eighth Amendment cruel and unusual punish-
ment claim.
VI. CONCLUSION
For the reasons stated above, we conclude Britton and
Kenney are entitled to qualified immunity as to the 8th and
14th Amendment claims, and we reverse in part the district
court’s order denying their motions to dismiss as to these
claims. However, we find we lack jurisdiction to review the
district court’s denial of Britton’s and Kenney’s motions to dis-
miss D.M.’s First Amendment retaliation claim; and as to that
part of the appeal, we dismiss for lack of jurisdiction.
R eversed in part, and in part dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4256170. Public record. Not legal advice.