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D.M. v. State

Court of Appeals of Nebraska

March 13, 2018

D.M., APPELLEE,
v.
STATE OF NEBRASKA ET AL., APPELLEES, AND GEOFF BRITTON AND MICHAEL L. KENNEY, APPELLANTS.

         1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional 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 substantial 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, [25 Neb.App. 597] notwithstanding the absence of a final judgment, if the denial of immunity 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 constitutional 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 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.

         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 liberty 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 dramatic departures from the basic conditions and ordinary incidents of prison sentences.

         [25 Neb.App. 598] 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 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.

         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 requirements are met. First, the deprivation alleged must be, objectively, sufficiently 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.

         [25 Neb.App. 599] Appeal from the District Court for Douglas County: J. MiChael Coffey, Judge.

          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 ...


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