Paul Gillpatrick and Niccole Wetherell, appellees.
Diane Sabatka-Rine et al., appellants.
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.
Jurisdiction: Final Orders: Appeal and Error. For an
appellate court to acquire jurisdiction of an appeal, there
must be a final order entered by the court from which the
appeal is taken; conversely, an appellate court is without
jurisdiction to entertain appeals from nonfinal orders.
Statutes: States. State courts are bound by the U.S.
Supreme Court's interpretation of federal statutes.
Attorney Fees: Civil Rights. Under 42 U.S.C. §
1988 (2012), for a plaintiff to be eligible for attorney fees
as a prevailing party, the plaintiff must have obtained a
judgment on the merits, a consent decree, or some other
judicially enforceable settlement, which materially alters
the legal relationship of the parties in a way that benefits
the plaintiff. In addition to prevailing on the merits of at
least some of its claims, a plaintiff must also show that its
court victory advanced the purpose behind Congress'
allowance of an attorney fee award: ensuring that financial
barriers do not prevent plaintiffs from privately enforcing
federal civil rights laws.
. Under 42 U.S.C. § 1988 (2012), a party is not
entitled to seek attorney fees until after it becomes
eligible for the fees as a prevailing party.
Judgments: Attorney Fees: Civil Rights. Under 42
U.S.C. § 1988 (2012), a prevailing party's right to
attorney fees cannot be limited by a local rule; for state
law actions, a party is required to request attorney fees
before the court enters an order or judgment.
Judgments: Final Orders: Attorney Fees: Civil
Rights. In an action brought under 42 U.S.C. §
1983 (2012), a party is not required to [297 Neb. 881]
separately move for attorney fees until after the trial court
enters a final order or judgment on the merits.
Summary Judgment: Appeal and Error. An appellate
court will affirm a lower court's grant of summary
judgment if the pleadings and admitted evidence show that
there is no genuine issue as to any material facts or as to
the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
_:. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the
benefit of all reasonable inferences deducible from the
Judgments: Appeal and Error. An appellate court
independently reviews questions of law decided by a lower
Constitutional Law. The determination of
constitutional requirements presents a question of law.
Statutes. Statutory interpretation presents
a question of law.
Immunity: Public Officers and Employees. The
State's sovereign immunity does not bar actions to
restrain state officials or to compel them to perform an act
they are legally required to do unless the prospective relief
would require them to expend public funds.
Actions: Civil Rights: Public Officers and Employees:
Liability. A state official's liability under 42
U.S.C. § 1983 (2012) turns on the capacity in which the
state official was sued, not on the capacity in which the
_:::. State officials sued in their individual capacities can
be personally liable under 42 U.S.C. § 1983 (2012) for
an action taken under color of state law that deprived the
plaintiff of a federal right.
Constitutional Law: Public Officers and Employees:
Immunity. The 11th Amendment bars a suit against
state officials when the State is the real, substantial party
_::. When the State or an arm of the State is named as a
defendant, 11th Amendment immunity is not limited to suits
seeking damages; absent a waiver, it bars a suit regardless
of the relief sought.
_:. Under the doctrine of Ex parte Young, 209 U.S.
123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a state's 11th
Amendment immunity does not bar a suit against state
officials when the plaintiff seeks only prospective relief
for ongoing violations of federal rights.
Actions: Civil Rights: Public Officers and Employees:
Liability. State officials sued in their official
capacities for injunctive relief are persons under 42 U.S.C.
§ 1983 (2012), because official capacity actions for
prospective relief are not treated as actions against the
Neb. 882] 20. Actions: Public Officers and Employees:
Immunity. A personal capacity suit against a state
official does not implicate sovereign immunity, because the
plaintiff seeks recovery from the official personally- not
from the state's treasury.
Actions: Civil Rights: Public Officers and Employees:
Liability. When a plaintiff in an action brought
under 42 U.S.C. § 1983 (2012) seeks injunctive relief to
compel state officials to comply with federal law, the claim
is available only against a state official sued in his or her
from the District Court for Lancaster County: Robert R. Otte,
Judge. Reversed and remanded with instructions.
Douglas J. Peterson, Attorney General, and David A. Lopez for
Miller, of ACLU of Nebraska Foundation, and Michael D. Gooch
for appellees Paul Gillpatrick and Niccole Wetherell.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
appellants, Diane Sabatka-Rine, Denise Skrobecki, and Michael
L. Kenney, were state officials in the Nebraska Department of
Correctional Services (Department). More specifically, Kenney
was the Department's director; Sabatka-Rine was the
warden at the Nebraska State Penitentiary (NSP); and
Skrobecki was the warden at the Nebraska Correctional Center
for Women (NCCW). The appellees, Paul Gillpatrick and Niccole
Wetherell, are inmates at different prison facilities who
sued the state officials in their individual capacities for
interfering with the inmates' request to marry. The
Department denied the inmates' request under an internal
policy that it does not transport an inmate to another
facility for a marriage ceremony. Additionally, the inmates
were denied a marriage ceremony via videoconferencing because
[297 Neb. 883] the Department interprets Neb. Rev. Stat.
§ 42-109 (Reissue 2016) to require that the inmates both
appear physically before an officiant.
district court ruled that the Department's policy
impermissibly burdened the inmates' right to marry and
that its interpretation of § 42-109 was constitutionally
flawed. The court sustained the inmates' motion for
summary judgment, denied the state officials' motion for
summary judgment, and enjoined the state officials and their
agents from denying the inmates a marriage ceremony via
videoconference or enforcing the Department's policy that
rested on its flawed interpretation of § 42-109.
without deciding, that the court's decision was correct
on the merits, we nonetheless reverse. We conclude that the
court erred in granting the inmates injunctive relief. We
conclude that in a civil rights action filed under 42 U.S.C.
§ 1983 (2012), state officials can only be sued for
injunctive relief in their official capacities. Accordingly,
we remand the cause with instructions for the court to vacate
parties dispute whether the state officials have appealed
from a final judgment or order; as a result, we address that
issue first. 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
For an appellate court to acquire jurisdiction of an appeal,
there must be a final order entered by the court from which
the appeal is taken; conversely, an appellate court is
without jurisdiction to entertain appeals from nonfinal
court's order required the state officials to pay all
costs but it did not determine attorney fees, which the
inmates had requested in their amended complaint. The
officials filed their [297 Neb. 884] notice of appeal before
the court took any action regarding attorney fees.
inmates moved the Nebraska Court of Appeals to dismiss the
appeal because the district court had not entered a final
order when the officials filed their appeal. They asserted
that their motion for attorney fees and costs was set for a
hearing before the defendants filed their appeal. They argued
that under our holding in Kilgore v. Nebraska Dept. of
Health & Human Servs.,  the defendants had not
appealed from a final order.
Kilgore,  we held that the court's failure to
address the request for attorney fees in its order left a
portion of the judgment unresolved. This failure meant that
the order was not final for purposes of appeal.
plaintiff in Kilgore requested attorney fees in her
petition. At the close of the evidence, the court announced
its ruling from the bench, a portion of which was in the
plaintiff's favor, and stated that it would make a
determination regarding attorney fees after it calculated her
damages. In a subsequent written order, the court reiterated
its ruling in favor of the plaintiff and set forth her
damages. However, the court's order did not rule on her
request for attorney fees. The plaintiff then filed an
application for attorney fees, and the defendants filed their
addressing the issue of attorney fees, we stated that the
plaintiff had properly requested attorney fees in her
pleading. We also emphasized that before the court issued its
written order, it had announced its ruling from the bench and
stated that it would determine attorney fees after
calculating damages. We concluded that the court's
failure to address the request in its order left a portion of
the judgment unresolved, which failure meant that the order
Neb. 885] The state officials in the present matter argued
that under Olson v. Palagi and Murray v.
Stine, the district court's order was final,
because the inmates failed to move for attorney fees before
the court entered its judgment. They did not dispute that the
inmates' application for attorney fees was pending before
the district court when they filed their notice of appeal.
But they argued that under our case law, the court's
silence in its order was a denial of a fee award because the
inmates had not filed a separate motion for the award. And
they argued that holding the order was not final would leave
the losing litigants uncertain whether to appeal from a
judgment on the merits.
Olson,  a father sought a modification of
his child support obligation. In the mother's answer, she
requested attorney fees and costs, which are authorized under
Neb. Rev. Stat. § 42-351 (Reissue 2016). After the court
denied a modification, the mother filed a separate
application for attorney fees and costs. The father appealed
the order denying a modification before the scheduled hearing
on the mother's application. While the appeal was
pending, the district court dismissed the mother's
application for lack of prosecution. But after the Court of
Appeals affirmed the judgment on the merits, the district
court conducted a hearing on the mother's application,
and the father appealed again from the court's fee award.
vacated the district court's order, concluding that the
court lacked jurisdiction to hear the mother's
application for a fee award. We reasoned that the district
court, by its silence, had implicitly denied the mother's
request "under these circumstances." We noted that the
order denying the father's complaint to modify did not
address the mother's request for attorney fees in her
answer. And in a docket entry, the court [297 Neb. 886] had
stated that there was "'[n]othing under
advisement.'"We stated that attorney fees are generally
treated as costs and that parties seeking attorney fees must
request them before the court issues a judgment. We concluded
that the mother's application for attorney fees had
failed to revive the issue because she did not move for a new
trial or an amended order and because she did not raise the
court's failure to award attorney fees in a cross-appeal.
We reasoned that the parties and the Court of Appeals had
treated the trial court's order as final, which could
have been true only if it had denied attorney fees. We held
that after the district court's judgment was final, it
lacked jurisdiction to award attorney fees because the mother
no longer had any means of challenging its earlier, implicit
denial of fees.
Murray,  a 2015 case, the defendants had sought a
fee award under Neb. Rev. Stat. § 25-824 (Reissue 2016),
some defendants in their answer and some in a motion filed
before the court entered its summary judgment. The
court's summary judgment orders were silent on the issue
of attorney fees. We stated that under Olson, a
judgment's silence '"on the issue of attorney
fees must be construed as a denial of . . . the
request.'" In contrast, we stated if a litigant
separately moves for attorney fees before the court enters a
judgment on the merits, the order or judgment is not
appealable until the court disposes of the request for
attorney fees. There, we reasoned that even if the
court's summary judgments had "implicitly denied the
requests for attorney fees included in the respective
answers, it clearly did not dispose of the separate motions
for attorney fees." We noted that a hearing on the
motions had been scheduled before the court entered its
summary judgments and concluded that the court's silence
could not be considered [297 Neb. 887] a denial of a fee
award under those circumstances. We held that the summary
judgments were not final, appealable orders because "the
absence of a ruling on attorney fees left a portion of the
instant case, the Court of Appeals denied summary dismissal,
noting that neither party had supplemented the record or
included a copy of the inmates' application for attorney
fees with the appellate filings. But it concluded that the
order was final under Murray and Olson,
because the inmates did not separately move for attorney fees
before the court issued its summary judgment. We subsequently
moved this case to our docket pursuant to Neb. Rev. Stat.
§ 24-1106(3) (Reissue 2016).
our holding in Kilgore may seem contrary to our
holdings in Olson and Murray, the facts of
the cases are distinguishable. In Kilgore, the court
had announced from the bench that it would determine attorney
fees after it calculated the plaintiff's damages, while
in Olson and Murray, the courts were silent
as to attorney fees altogether. However, we conclude that the
instant case is distinguishable from all three cases because
it is a § 1983 action and, as a result, our prior
jurisprudence is inapplicable.
this is primarily a § 1983 action and the court
implicitly granted relief on that claim, the inmates'
right to attorney fees is governed by 42 U.S.C. §
1988(b) (2012): "In any action or proceeding to enforce
a provision of [specified civil rights statutes, including
§ 1983], the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs . . . ."
courts are bound by the U.S. Supreme Court's
interpretation of federal statutes, including §
1988. Under § 1988, for a plaintiff to be
eligible for attorney fees as a [297 Neb. 888] prevailing
party, the plaintiff must have obtained a judgment on the
merits, a consent decree, or some other judicially
enforceable settlement, which materially alters the legal
relationship of the parties in a way that benefits the
plaintiff In addition to prevailing on the merits
of at least some of its claims,  a plaintiff must also
show that its court victory advanced the purpose behind
Congress' allowance of an attorney fee award: ensuring
that financial barriers do not prevent plaintiffs from
privately enforcing federal civil rights laws.
fees authorized by § 1988 [are] 'an integral part of
the remedies necessary to obtain' compliance with §
1983."But the U.S. Supreme Court has held that
the time limits for a motion to amend or alter a judgment
have no application to a postjudgment request for attorney
fees under § 1988, because the motion ...