Toffie Maloley, appellant and cross-appellee.
Central Nebraska Public Power and Irrigation District et al., appellees and cross-appellants. 303 Neb. 743
Judgments: Appeal and Error. In a bench
trial of a law action, a trial court's factual findings
have the effect of a jury verdict and will not be set aside
on appeal unless clearly wrong.
__: __ . After a bench trial of a law action, an appellate
court does not reweigh evidence, but considers the evidence
in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful
Judgments. In a bench trial, the trial
court's entry of judgment in favor of a certain party
warrants the conclusion that the trial court found in the
party's favor on all issuable facts.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court resolves the questions
independently of the lower court's conclusions.
Summary Judgment: Moot Question: Appeal and
Error. The denial of a summary judgment motion
generally becomes a moot issue on appeal after a final trial
on the merits.
Actions: Civil Rights: Convictions: Proof. A
plaintiff seeking relief under 42 U.S.C. § 1983 (2012)
based on a criminal conviction must first show favorable
termination of his or her underlying conviction if success in
the civil action would necessarily undermine the validity of
the previous conviction.
from the District Court for Dawson County: James E. Doyle IV,
Neb.744] David W. Jorgensen, of Nye, Hervert, Jorgensen &
Watson. PC, for appellant.
M. Placzek and Jared J. Krejci, of Smith, Johnson, Baack,
Placzek, Allen, Connick & Hansen, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ. Miller-Lerman, J.
appellant, Toffie Maloley (Maloley), brought this 42 U.S.C.
§ 1983 (2012) action against the appellees, Central
Nebraska Public Power and Irrigation District, a political
subdivision (Central), its general manager, and the members
of Central's board (collectively the appellees). Central
owns real estate in Dawson and Gosper Counties, including
harassment protection orders were issued against Maloley and
he moved out of the Johnson Lake area through an exit plan
negotiated by his counsel, he was given a "ban
notice" on August 13, 2013, but repeatedly trespassed
thereafter, leading to two convictions for trespass which
have not been overturned or otherwise reversed. In his
amended complaint, Maloley generally alleged that he was
unconstitutionally excluded from the Johnson Lake area such
that he could not reside or travel there or engage in
recreation and his occupation. After trial, the district
court filed a 22-page order and opinion finding in favor of
the appellees and dismissing Maloley's action. Judgment
was entered accordingly. We determine that Maloley's
convictions for trespassing are fundamentally inconsistent
with his various civil claims alleged in his amended
complaint. Under the Heck doctrine, Maloley's
claims are not cognizable under 42 U.S.C. § 1983. See
Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129
L.Ed.2d 383 (1994). Although our reasoning differs from that
of the district court, we affirm.
Neb. 745] STATEMENT OF FACTS
alleged that he resided in a Johnson Lake residence leased by
his mother for the 2 years prior to August 13, 2013. and had
personal property and a business at Johnson Lake. Maloley
alleged that on August 13, Central's attorney had Maloley
served with a notice prohibiting Maloley from entering onto
Central's real estate. Maloley alleged that after he
received the notice, he was repeatedly arrested and
prosecuted for trespassing on Central's real estate. It
is undisputed that he was convicted of criminal trespass in
two separate incidents and that the convictions have not been
reversed, declared invalid, or expunged in any way.
alleged that when Central's attorney issued the notice,
the appellees violated his procedural due process rights and
various property and civil rights. All of Maloley's
claims were brought under 42 U.S.C. § 1983. The
appellees admitted the obvious facts but denied others.
Throughout these proceedings, the appellees asserted, inter
alia, that under the Heck doctrine, Maloley's
claims were not cognizable under § 1983, because ...