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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

Toffie Maloley, appellant and cross-appellee, 

v. Central Nebraska Public Power and

Irrigation District et al., appellees

and cross-appellants.

___ N.W.2d ___

Filed July 19, 2019. No. S-18-656.

1. 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.

2. ____: ____. 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 party.

3. 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.

4. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions.

5. 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.

6. 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.

Appeal from the District Court for Dawson County: James

E. Doyle IV, Judge. Affirmed.

Nebraska Supreme Court Online Library

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

09/20/2019 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson, 

P.C., for appellant.

Daniel 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.

NATURE OF CASE

The 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 

Johnson Lake.

After 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.
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303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

STATEMENT OF FACTS

Maloley 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.

Maloley 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 Maloley was a convicted trespasser and the 

court could not find in Maloley’s favor without invalidating 

his convictions.

Cross-motions for summary judgment were denied. A bench 

trial on liability took place on August 8 and 9, 2017. The district court denied the appellees’ midtrial motions. After trial, 

in a 22-page opinion, the district court found in favor of the 

appellees on all claims, and the entirety of Maloley’s amended 

complaint was dismissed with prejudice and judgment entered 

accordingly. Maloley filed a motion for new trial which generally asserted that he was denied a fair trial. The motion 

was denied.

In its order following trial, the district court found that 

Maloley’s mother, Lorraine Maloley, signed a residential lease 

agreement with Central allowing her to lease a lot at Johnson 

Lake, referred to as “Bass Bay, Lot 25.” In 2011, Maloley 

began living in Lorraine’s residence at Johnson Lake.
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

In July 2012, Lorraine’s neighbor obtained a harassment 

protection order against Maloley. In August, Central’s attorney sent Lorraine a letter advising that Maloley was interfering with the neighboring leaseholders’ peaceful enjoyment. The letter gave Lorraine 60 days to remedy the breach 

by Maloley’s leaving Central’s real estate. On October 2, 

Maloley’s attorney responded to the August letter, stating 

that Maloley agreed to leave Bass Bay, Lot 25, on or before 

October 5. On October 19, Central’s attorney sent Maloley’s 

attorney another letter stating that Maloley had vacated the 

premises, but advising that if Maloley returned, Central would 

consider his presence a resumption of the breach. These discussions between counsel caused Maloley to leave Central’s 

real estate with the knowledge that he was not permitted to 

return. The district court found that Maloley left Central’s 

property knowing he was not to return or “he would be treated 

as a trespasser.”

In February 2013, Maloley returned to reside at Bass Bay, 

Lot 25. In July, the complaining neighbor’s husband sent 

Central a letter explaining that Maloley was at Bass Bay, 

Lot 25, on a daily basis and disturbing the neighborhood. The 

district court found that Maloley’s disturbing conduct resulted 

in users of Central’s real estate making complaints to Central 

and that Maloley interfered with the peaceful enjoyment of 

Central’s facilities.

Consistent with the October 2012 communication between 

counsel, on August 12, 2013, Central prepared a notice advising Maloley he was not to enter any of Central’s real estate 

in Dawson County or Gosper County or else he would be 

referred to law enforcement authorities. This “ban notice” was 

personally served on Maloley.

Between August 28 and December 6, 2013, Maloley 

was charged with four counts of second degree trespass in 

three cases in the county court for Dawson County. All of 

the trespass charges occurred on Central’s real estate. One 

of the cases was dismissed by the State, and Maloley was 
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

convicted of criminally trespassing on Central’s real estate 

in two cases.

On November 24, 2014, Central’s attorney sent Maloley’s 

attorney a letter advising that Maloley was allowed to enter 

Johnson Lake to remove his personal property from Bass 

Bay, Lot 25, provided Maloley had Lorraine’s permission and 

Maloley was accompanied by law enforcement.

The district court found that Maloley was a mere occupier at 

Bass Bay, Lot 25, and had no interest in the leasehold at that 

location. The district court found that Maloley’s interests as an 

occupier of Bass Bay, Lot 25, and user of Central’s facilities 

terminated when Maloley left Central’s real estate and acceded 

to the terms discussed and agreed to between counsel in the 

2012 communication process. The district court found that 

the 2012 communication process gave Maloley notice of the 

requirement that he leave and the reasons therefor. The district court found that the 2012 communication process gave 

Maloley the opportunity to challenge Central’s position, but 

Maloley waived his rights to remain on Central’s real estate 

after he left in the fall of 2012. Once Maloley returned, the 

district court recognized that Maloley was a trespasser.

The district court reasoned that because Maloley waived his 

right to remain on Central’s real estate after he left, Maloley 

had no property or liberty interest in residing at Bass Bay, 

Lot 25. Further, because Maloley was a trespasser, he had no 

liberty interest or other right to associate with those at Johnson 

Lake or engage in an occupation at Johnson Lake. The district court found that the 2012 communication process gave 

Maloley what process he was due when he was temporarily 

deprived of his personal property.

The district court found that before the 2012 communication process, Maloley had a right to use Central’s real estate 

which was generally made available to the public. However, 

the district court found that the 2012 communication process 

was fundamentally fair and afforded Maloley the process he 

was due under the circumstances.
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

Applying the Mathews v. Eldridge considerations to determine what process was due, the district court found that 

Maloley’s interest in his personal property was not substantially impaired, because Maloley had ample time to remove 

his personal property during the August to October 2012 communication process. See Mathews v. Eldridge, 424 U.S. 319, 

96 S. Ct. 893, 47 L. Ed 18 (1976). Maloley knowingly left his 

personal property behind when he left Johnson Lake. Further, 

it found that Maloley’s evidence regarding the extent and 

nature of Maloley’s personal property was not convincing. 

With regard to Maloley’s interest in providing lawn care and 

handyman services, the district court found that Maloley’s evidence on this issue had little probative value. The district court 

found that Maloley’s interest in using Central’s real estate as 

a member of the public was not substantial, because Maloley 

forfeited his interest by disturbing the peace.

Continuing its Mathews analysis, the district court found 

that Central’s interest in its duty to the public weighed in favor 

of the adequacy of the 2012 communication process. Central 

had a duty to protect the quiet, peaceful, and safe use of its real 

estate by its tenants and the public. The district court noted 

that Maloley’s conduct interfered with the peace and risked 

safety due to possible escalations of confrontations and altercations. The 2012 communication process minimized the risk of 

the public’s disturbance and promoted safety.

Finally, the district court concluded its Mathews analysis by 

finding that the 2012 communication process carried a “very 

low” risk of error compared to other procedures. The court 

found that Central had received bona fide and verified complaints about Maloley’s conduct. Due to the existence of the 

neighbor’s harassment protection order, Central knew of a previous judicial determination that Maloley was interfering with 

the users of Johnson Lake.

In summary, the district court determined that the 2012 

communication process was fundamentally fair and afforded 

Maloley the process he was due.
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MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

The district court determined that Maloley had no substantive due process rights to live precisely where he chose, to 

engage in handyman services at Johnson Lake, to intrastate 

travel through Central’s real estate, or to use Central’s recreational facilities. The district court determined that Maloley 

had no First Amendment right to associate with customers at 

Johnson Lake. The district court found that Central’s actions 

were rationally related to legitimate government interests in 

protecting the peace and quiet of Johnson Lake. Finally, the 

district court determined that Central did not violate Maloley’s 

equal protection rights, because there was a rational basis for 

Central to classify Maloley as it did.

The district court found in favor of the appellees on all 

claims and dismissed Maloley’s complaint with prejudice. 

Posttrial motions were denied. Maloley appeals.

ASSIGNMENTS OF ERROR

Maloley claims, summarized and restated, that the district 

court erred when it denied his motion for summary judgment, 

determined after a trial that Maloley was a trespasser and that 

he received due process of law during the 2012 communication 

process, and denied his motion for new trial.

In their cross-appeal, the appellees claim that although they 

agree with the judgment as entered, because Maloley was 

convicted for trespass and these convictions have not been 

reversed, declared invalid, or expunged, his claims under 42 

U.S.C. § 1983 arising as a consequence of these convictions are not cognizable under the rule articulated in Heck v. 

Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 

(1994), and the district court erred when it failed to dismiss the 

amended complaint on this basis.

STANDARDS OF REVIEW

[1,2] 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. Cullinane v. Beverly 
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 (2018). 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 party. See id.

[3] 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. Blue 

Creek Farm v. Aurora Co-op Elev. Co., 259 Neb. 1032, 614 

N.W.2d 310 (2000).

[4] When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s 

conclusions. Becher v. Becher, 299 Neb. 206, 908 N.W.2d 

12 (2018).

ANALYSIS

Appeal.

[5] Maloley claims that the district court erred when it 

denied his motion for summary judgment. However, “denial of 

a summary judgment motion generally becomes a moot issue 

on appeal after a final trial on the merits.” First Express Servs. 

Group v. Easter, 286 Neb. 912, 920, 840 N.W.2d 465, 471 

(2013). Under the circumstances of this case, this assignment is 

without merit. Maloley also claims that the district court erred 

when it ruled against him after trial and thereafter denied his 

motion for new trial. As explained below, because we agree 

with the appellees’ contention in their cross-appeal that the 

district court did not err when it dismissed Maloley’s amended 

complaint and entered judgment in favor of the appellees, we 

reject these assignments of error.

Cross-Appeal.

In their cross-appeal, the appellees claim that the district 

court did not err when it dismissed Maloley’s amended complaint after trial, but they contend that their assertion that 

Maloley’s 42 U.S.C. § 1983 action was not cognizable under 
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303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

the Heck doctrine provides the better rationale. We agree with 

the appellees, and the resolution of this contention in favor of 

the appellees is dispositive of the appeal.

Maloley’s 42 U.S.C. § 1983 claims tried below arise from 

the assertion that he was denied due process of law when 

he was excluded from Central’s real estate and convicted of 

trespassing. He claims the circumstances of his eviction and 

subsequent convictions for criminal trespass were unlawful and 

are all folded into and serve as the basis for his § 1983 claims. 

Maloley did not prove at trial that the convictions for trespassing have been reversed on direct appeal, expunged by executive 

order, or otherwise declared invalid. Thus, as explained below, 

under the Heck doctrine, the claims in Maloley’s amended 

complaint are not cognizable under § 1983 and therefore the 

dismissal of his amended complaint was not error. See Heck 

v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 

383 (1994).

In Heck, the U.S. Supreme Court held:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm 

caused by actions whose unlawfulness would render a 

conviction or sentence invalid, a § 1983 plaintiff must 

prove that the conviction or sentence has been reversed 

on direct appeal, expunged by executive order, declared 

invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus . . . .

512 U.S. at 486-87. The Court in Heck explained that § 1983 

does not allow a convicted defendant to mount a collateral 

attack on his or her conviction under the guise of a civil suit; 

generally, tort lawsuits “are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” 512 

U.S. at 486.

Although the Heck principle began in a habeas corpus 

setting, subsequent cases confirmed that the Heck doctrine 

applies regardless of the type of relief sought if success in a 
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MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

42 U.S.C. § 1983 action would necessarily demonstrate the 

invalidity of a conviction or sentence. See Wilkinson v. Dotson, 

544 U.S. 74, 125 S. Ct. 1242, 161 L. Ed. 2d 253 (2005). We 

have applied Heck to a prisoner’s § 1983 case. See Cole v. 

Loock, 259 Neb. 292, 609 N.W.2d 354 (2000).

Courts have extended the Heck doctrine to other contexts, 

and as relevant here, the Heck doctrine has been applied to 

claims in which the plaintiff had been convicted of criminal 

trespass and sought relief for circumstances surrounding those 

convictions. See, generally, Harris v. Wal-Mart Stores, Inc., 

48 F. Supp. 3d 1025 (W.D. Tenn. 2014); Salvagio v. Doe, 

No. Civ. 13-5182, 2015 WL 460907 (E.D. La. Feb. 3, 2015) 

(unpublished opinion); Rector v. Baca, No. CV 13-3116 VBF 

(SS), 2014 WL 4244345 (C.D. Cal. Aug. 25, 2014) (unpublished opinion); Snyder v. Decker, No. 2:06cv1528, 2007 WL 

2616993 (W.D. Pa. Sept. 6, 2007) (unpublished opinion).

To determine whether a 42 U.S.C. § 1983 claim is improper 

under the Heck doctrine, a district court must analyze the relationship between the plaintiff’s § 1983 claim and the charge on 

which he was convicted. See Hardrick v. City of Bolingbrook, 

522 F.3d 758 (7th Cir. 2008). The Ninth Circuit has explained 

that the critical element in this analysis is “whether the plaintiff’s action, if successful, will ‘demonstrate the invalidity of 

any outstanding criminal judgment.’” Beets v. County of Los 

Angeles, 669 F.3d 1038, 1043 (9th Cir. 2012) (quoting Heck v. 

Humphrey, supra). Put another way, “‘if a criminal conviction 

arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.’” Smith 

v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (quoting 

Heck v. Humphrey, supra). Claims which would not necessarily imply the invalidity of the conviction should be allowed to 

proceed. Heck v. Humphrey, supra.

In this case, the appellees urge that Maloley had no property rights, so Maloley could not be deprived of property 

without due process. They further urge that Maloley was not 
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303 Nebraska Reports

MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

deprived of his constitutional rights, but if his rights were 

circumscribed, that is a permissible result of the fact that he 

has been found by a court to be a criminal trespasser at the 

Johnson Lake area. The appellees assert that the correctness 

of a limitation on Maloley’s rights, if any, would not be cognizable in a 42 U.S.C. § 1983 action while the convictions for 

trespassing stand. We agree.

The record shows that Lorraine received notice pertaining to 

Maloley’s conduct and that Maloley, represented by counsel, 

negotiated an exit plan for Maloley from Lorraine’s property. 

Lorraine received a notice banning Maloley from the property 

and threatening eviction if Maloley returned. The threat of 

eviction was based, inter alia, on a term in Lorraine’s lease 

protecting the neighboring leaseholders’ peaceful enjoyment of 

their property. Subsequently, Maloley was arrested four times 

for trespassing on Central’s real estate. From those arrests, 

Maloley was ultimately convicted of two counts of second 

degree trespass, because he could not show he had a right to 

remain on the property.

There is a direct relationship between Maloley’s trespassing and his 42 U.S.C. § 1983 claims. Each claim in Maloley’s 

amended complaint is rooted in the propriety of his trespass 

convictions. Had Maloley been successful on his § 1983 claims, 

the validity of his convictions for trespass would be called into 

question. Maloley concedes that his convictions stand, but 

argues that Heck does not bar his constitutional claims, because 

they attack the process of issuing the ban notice against him, 

and not the resulting convictions themselves. While there may 

be a distinction, the forum challenging the ban notice is in the 

criminal cases, not this civil matter. Maloley cannot claim he 

had a right to remain on the property in the civil case after 

having been convicted for having no such right in his criminal 

cases. His criminal convictions are “‘fundamentally inconsistent with the unlawful behavior’” alleged against the appellees 

for which he claims damages. See Smith v. City of Hemet, 394 

F.3d at 695. Accordingly, Maloley’s civil rights action under 
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MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.

Cite as 303 Neb. 743

§ 1983 was not cognizable and the district court did not err 

when it dismissed his amended complaint and entered judgment for the appellees.

CONCLUSION

[6] Under the rule articulated in Heck v. Humphrey, 512 

U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), a plaintiff seeking relief under 42 U.S.C. § 1983 based on a criminal 

conviction must first show favorable termination of his or 

her conviction if success in the civil action would necessarily undermine the validity of the previous conviction. The 

gravamen of Maloley’s constitutional claims in his amended 

complaint directly call into question his trespass convictions. 

Thus, Maloley’s § 1983 claims were not cognizable under the 

Heck doctrine. Although our reasoning differs from that of 

the district court, we affirm the judgment of the district court 

which found in favor of the appellees and which dismissed 

Maloley’s amended complaint.

Affirmed.