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Cite as 297 Neb. 880

Paul Gillpatrick and Niccole Wetherell, appell

v. Diane Sabatka-Rine et al., appel

___ N.W.2d ___

Filed September 29, 2017. No. S-16-212.

1. 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.

2. 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.

3. Statutes: States. State courts are bound by the U.S. Supreme Court’s 

interpretation of federal statutes.

4. 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.

5. ____: ____. 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.

6. 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.

7. Judgments: Final Orders: Attorney Fees: Civil Rights. In an action 

brought under 42 U.S.C. § 1983 (2012), a party is not required to 

Nebraska Supreme Court Online Library

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

10/06/2017 12:12 AM CDT
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separately move for attorney fees until after the trial court enters a final 

order or judgment on the merits.

8. 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 of law.

9. ____: ____. 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 evidence.

10. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

11. Constitutional Law. The determination of constitutional requirements 

presents a question of law.

12. Statutes. Statutory interpretation presents a question of law.

13. 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.

14. 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 defendant acted.

15. ____: ____: ____: ____. 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.

16. Constitutional Law: Public Officers and Employees: Immunity. The 

11th Amendment bars a suit against state officials when the State is the 

real, substantial party in interest.

17. ____: ____: ____. 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.

18. ____: ____: ____. 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.

19. 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 State.
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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.

21. 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 

official capacity.

Appeal from the District Court for Lancaster County: Rober

R. Otte, Judge. Reversed and remanded with instruction

Douglas J. Peterson, Attorney General, and David A. Lopez 

for appellants.

Amy Miller, of ACLU of Nebraska Foundation, and 

Michael D. Gooch for appellees Paul Gillpatrick and Niccole 

Wetherell.

Heavican, C.J., Wright, Miller-Lerman, Cassel

Kelch, and Funke, 

Funke, J

NATURE OF CASE

The 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 
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the Department interprets Neb. Rev. Stat. § 42-109 (Reissue 

2016) to require that the inmates both appear physically 

before an officiant.

The 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.

Assuming, 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 its order.

JURISDICTION

[1,2] The 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 it.1 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.2

The 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 

1 State v. McColery, ante p. 53, 898 N.W.2d 349 (2017).

2 In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).
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notice of appeal before the court took any action regarding 

attorney fees.

The 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.,

3

 the defendants had not appealed from a 

final order.

In Kilgore,

4

 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.

The 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 appeal.

In 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 was unappealable.

3 Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763 

N.W.2d 77 (2009).

4 Id.
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The state officials in the present matter argued that under 

Olson v. Palagi5 and Murray v. Stine,

6

 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.

In Olson,

7

 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.

We 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.”8 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 

5 Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 (2003).

6 Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015) (per curiam).

7 Olson, supra note 5.

8 Id. at 380, 665 N.W.2d at 585.
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had stated that there was “‘[n]othing under advisement.’”9

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.

In Murray,

10 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.’”11 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.”12 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 

9 Id.

10 Murray, supra note 6.

11 Id. at 129, 864 N.W.2d 390 (emphasis supplied).

12 Id. at 131, 864 N.W.2d at 391.
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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 judgment unresolved.”13

In 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).

Though 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.

Because 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 . . . .”

[3,4] State courts are bound by the U.S. Supreme Court’s 

interpretation of federal statutes, including § 1988.14 Under 

§ 1988, for a plaintiff to be eligible for attorney fees as a 

13 Id.

14 See James v. City of Boise, Idaho, ___ U.S. ___, 136 S. Ct. 685, 193 L. 

Ed. 2d 694 (2016).
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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.15 In addition to 

prevailing on the merits of at least some of its claims,16 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.17

“[T]he fees authorized by § 1988 [are] ‘an integral part of 

the remedies necessary to obtain’ compliance with § 1983.”18

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 raises a collateral matter and does not seek a change 

in the judgment on the merits:

[A] request for attorney’s fees under § 1988 raises legal 

issues collateral to the main cause of action . . . .

. . . Regardless of when attorney’s fees are requested, 

the court’s decision of entitlement to fees will therefore 

require an inquiry separate from the decision on the 

merits—an inquiry that cannot even commence until one 

15 See, Lefemine v. Wideman, 568 U.S. 1, 133 S. Ct. 9, 184 L. Ed. 2d 313 

(2012); Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of 

Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 

2d 855 (2001); Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. 

Ed. 2d 40 (1983).

16 See Fox v. Vice, 563 U.S. 826, 131 S. Ct. 2205, 180 L. Ed. 2d 45 (2011).

17 See, e.g., Perdue v. Kenny A., 559 U.S. 542, 130 S. Ct. 1662, 176 L. Ed. 

2d 494 (2010); Dennis v. Higgins, 498 U.S. 439, 111 S. Ct. 865, 112 L. Ed. 

2d 969 (1991) (Kennedy, J., dissenting; Rehnquist, C.J., joins); Missouri 

v. Jenkins, 491 U.S. 274, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989); 

Hensley, supra note 15; Shelby County, Ala. v. Lynch, 799 F.3d 1173 (D.C. 

Cir. 2015), cert. denied ___ U.S. ___, 136 S. Ct. 981, 194 L. Ed. 2d 4 

(2016).

18 Maine v. Thiboutot, 448 U.S. 1, 11, 100 S. Ct. 2502, 65 L. Ed. 2d 555 

(1980).
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party has “prevailed.” . . . [T]he attorney’s fees allowed 

under § 1988 are not compensation for the injury giving 

rise to an action. Their award is uniquely separable from 

the cause of action to be proved at trial.19

In White v. New Hampshire Dept. of Empl. Sec.,

20 the Court 

explained that in the course of civil rights litigation, especially 

in actions seeking injunctive relief, a court could issue many 

orders that would cause a plaintiff’s counsel to forfeit the right 

to fees if they did not file a request after every order that could 

be construed as a “final judgment.” The Court further noted 

that applying a 10-day time limit could deprive counsel of the 

time needed to negotiate a settlement. It reasoned that these 

possibilities would only encourage additional litigation. But the 

Court also stated that federal district courts could adopt local 

timeliness standards for filing claims for attorney fees and 

could avoid piecemeal appeals by promptly hearing requests 

for attorney fees.

[5-7] Under the Court’s interpretation of § 1988, a party is 

not entitled to seek attorney fees until after it becomes eligible 

for the fees as a prevailing party. And because the Court held 

that a prevailing party’s right to attorney fees is not limited 

by a time limit for a postjudgment motion, it also 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.21 We are bound by that interpretation. We therefore conclude that in a § 1983 action, a party is not required 

to separately move for attorney fees until after the trial court 

19 White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 451-52, 102 

S. Ct. 1162, 71 L. Ed. 2d 325 (1982). See, also, Bumpers v. Community 

Bank of N. Virginia, 364 N.C. 195, 695 S.E.2d 442 (2010); 1 Robert L. 

Rossi, Attorneys’ Fees § 6:18 (3d ed. 2015); 15B Charles Alan Wright et 

al., Federal Practice and Procedure § 3915.6 (1992 & Supp. 2017); 5 Am. 

Jur. 2d Appellate Review § 391 (2007).

20 White, supra note 19, 455 U.S. at 454.

21 See Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 

(1988).
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enters a final order or judgment on the merits. Because our 

rule for state law actions does not apply, the court’s decision 

on the merits of the pleadings is an appealable order. Having 

determined that we have jurisdiction, we turn to the facts of 

this appeal.

BACKGROUND

Gillpatrick is incarcerated at the NSP in Lincoln, Nebraska, 

and is serving lengthy sentences for his convictions of second 

degree murder and use of a weapon to commit a felony.22

Wetherell is incarcerated at the NCCW in York, Nebraska, 

and is serving a life sentence for a first degree murder 

conviction.23

Grievance Proced

In May 2012, Weatherell submitted a “Marriage Intention 

Form” and interview request to the religious coordinator at the 

NCCW. She stated her intention to marry Gillpatrick that July. 

Gillpatrick submitted a corresponding request at the NSP.

In July 2012, Wetherell filed a grievance, stating that she 

and Gillpatrick had followed the marriage procedures under 

the Department’s administrative regulation No. 208.01 (AR 

208.01), but that the religious coordinator would not record 

a telephonic wedding as a valid marriage because both parties had to be present. She acknowledged that the Department 

would not transport her or Gillpatrick to another facility but 

implicitly wanted the Department to provide a telephonic ceremony. She received an unsigned response denying her request 

because it was prohibited by the combination of § 42-109 and 

prison regulations:

The [Department] will not transport inmates from one 

institution to another for a marriage ceremony. With the 

approval of both Wardens, inmates housed at Community 

22 See State v. Gillpatrick, No. A-10-793, 2011 WL 2577279 (Neb. App. June 

28, 2011) (selected for posting to court website).

23 See State v. Wetherell, 259 Neb. 341, 609 N.W.2d 672 (2000).
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Corrections Centers may be allowed to enter NCCW 

in order to be married. You are not permitted to have 

telephone contact with inmates at other facilities. Per 

[§] 42-109, the parties shall solemnly declare in the presence of the magistrate or minister and the attending witnesses, that they take each other as husband and wife; and 

in any case there shall be at least two witnesses, besides 

the minister or magistrate present at the ceremony.

In August 2012, Wetherell filed another grievance, stating that she and Gillpatrick had requested a telephonic wedding because neither of them would be “classified to community corrections anytime in the future.” She asked if they 

could pay for transportation to the courthouse to comply with 

§ 42-109. The response was the same. In September, she filed 

an administrative appeal. The Department’s director again 

responded that the Department does not provide transportation 

for a marriage.

In October 2012, Gillpatrick filed a similar grievance at 

the NSP, arguing that no laws prohibited their marriage and 

that he and Wetherell would be “locked up for a very long 

time” and wished to comfort each other. An officer responded 

that Nebraska law does not authorize telephonic marriages, 

the Department’s regulations did not authorize an inmate-toinmate marriage via telephone, and the Department will not 

transport inmates for a marriage ceremony. In March 2013, 

Gillpatrick’s administrative appeal was denied as untimely. In 

July, Gillpatrick filed a new grievance. The new grievance, an 

administrative appeal, and subsequent interview requests were 

all denied.

Court Procedur

In February 2014, the inmates filed their first complaint, in 

which they named the Department, Sabatka-Rine, Skrobecki, 

and Kenney as defendants. Each state official was sued in his 

or her official capacity. The inmates alleged that they had no 

means of exercising their right to marry unless the Department 
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accommodated them in some manner. They alleged claims 

under 42 U.S.C. § 1983, the federal Due Process Clause, and 

the Nebraska Constitution. They alleged that the defendants’ 

policies, customs, and practices had prevented inmates in separate facilities from marrying and that they had a fundamental 

right to marry, which could not be denied because they were 

incarcerated. They sought a declaration that the defendants’ 

policies and practices violated the Constitution, as well as a 

preliminary and permanent injunction requiring the defendants 

and their agents to “make such accommodations as necessary, 

consistent with legitimate penological concerns, to facilitate 

the completion of [their] marriage application.”

Despite not having been sued in their individual capacities, the state officials moved, in their individual capacities, 

to dismiss the inmates’ complaint under Neb. Ct. R. Pldg. 

§ 6-1112(b)(1) for lack of subject matter jurisdiction and 

under § 6-1112(b)(6) for failure to state a claim upon which 

relief can be granted. At the hearing on the motion to dismiss, 

the inmates agreed that (1) the Department was entitled to 

assert sovereign immunity; (2) the court could not order the 

Department to transport inmates to facilitate a marriage; (3) 

they had sued the state officials in their official capacities, 

but served them individually; and (4) they could not ask the 

court to order the Department “or its employees acting in 

their official capacity to do something . . . because the [S]tate 

has not waived its sovereign immunity from the suit in its 

own courts.” But the inmates argued that the court could still 

determine whether the Department’s policies were constitutional and whether they were entitled to prospective relief. 

They asked for leave to amend. They argued that although 

they were asking for a declaratory judgment, they were not 

asking for an advisory opinion, because there were reasonable 

alternatives to transporting inmates to facilitate a marriage 

ceremony. The court concluded that the motion to dismiss 

should be sustained and gave the inmates leave to file an 

amended complaint.
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In the inmates’ amended complaint, they omitted the 

Department as a defendant and sued the same state officials in their individual capacities only. They asserted separate claims against each official and alleged claims under 

§ 1983, Neb. Rev. Stat. § 84-911 (Reissue 2014) of the 

Administrative Procedure Act (APA), the federal Due Process 

Clause, and the Nebraska Constitution. For each claim, they 

alleged that the Department’s policies had denied them their 

fundamental right to marry while they were incarcerated and 

that the state officials would continue to deny them this 

right unless enjoined. They alleged that when Kenney denied 

their administrative appeals, he did so intentionally and without exercising his professional judgment as to whether their 

request would pose a threat to security, order, or public 

safety. They made the same allegations against Sabatka-Rine 

and Skrobecki. The inmates sought a declaration that (1) the 

Department’s policies, customs, and practices, as applied to 

them, violated the Constitution and (2) the state officials’ 

denial of their requests to marry and their grievances violated 

their constitutional right to marry. They sought a preliminary 

and permanent injunction preventing the state officials and 

their agents from relying on past denials of their marriage 

requests for any purpose, as well as asking the court for costs 

and attorney fees.

The state officials filed an answer denying the inmates’ 

allegations, affirmatively alleging that their claims were barred 

by sovereign immunity and qualified immunity, and that they 

had failed to state a claim for which relief could be granted. 

In February 2015, the state officials moved for summary judgment. In May, they moved the court to dismiss the action for 

lack of subject matter jurisdiction. In July, the inmates objected 

to the motion to dismiss. In October, they filed a cross-motion 

for summary judgment.

At a hearing in November 2015, the assistant attorney 

general representing the state officials stated that he had 

recently learned the Department had repealed the disputed 
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language from AR 208.01 but that it would be promulgating 

similar language in the future. He believed the case could go 

forward on the validity of the Department’s internal policy 

because the Department would still enforce the policy of the 

deleted language in AR 208.01, which he argued was not subject to the APA. Because the Department would still enforce 

its policy, he argued that the court’s judgment would not 

be advisory.

The inmates agreed that they were not asking for an advisory opinion. They had argued the Department could deny a 

marriage request under AR 208.01 only if a warden finds it 

would pose a threat to security, order, or public safety. They 

argued that the Department’s position had not changed—i.e., 

it would not facilitate their marriage—and that their constitutional claim was therefore still alive. They stated that 

they were not challenging the constitutionality of § 42-109. 

Instead, they argued that the court could reasonably interpret 

it to authorize a telephonic ceremony. The state officials conceded that the Department’s policy rested on its interpretation 

of § 42-109. They argued that they should not be required to 

expend resources to facilitate an unlawful marriage.

Court’s Orde

The court rejected the state officials’ argument that it lacked 

authority to interpret § 42-109 because the inmates had asked 

for declaratory relief under the APA instead of the Uniform 

Declaratory Judgments Act. The court reasoned that the 

inmates were asking for relief from the officials’ interpretation of the statute to promulgate a rule that impinged on the 

inmates’ right to marry. It described the officials’ justification for the rule as not wanting to waste time and resources 

on an unlawful marriage under a statute that the Department 

could not ignore. It concluded that the inmates’ request for 

relief from the officials’ interpretation of § 42-109 fell within 

the parameters of § 84-911 of the APA and that the officials 

had not cited any cogent authority to the contrary. Citing 
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federal appellate decisions,24 the court stated, “‘Courts are the 

final authorities on such issues of statutory construction [and] 

remain free to set aside an agency’s construction of a statute 

if it does not have a reasonable basis in law or if it frustrates 

congressional policy.’”

In the district court’s order, it concluded that the parties’ dispute was substantively governed by the U.S. Supreme 

Court’s decision in Turner v. Safley.

25 It concluded that the 

state officials had interpreted the requirement of “presence” in 

§ 42-109 to mean that persons wishing to marry had to declare 

their intent in the “physical presence” of an officiant. But it 

concluded that § 42-109 neither directly authorized nor prohibited an officiant from conducting a marriage ceremony by 

videoconference and that nothing in the statute supported the 

officials’ interpretation. The court noted that (1) the officials 

had not argued the inmates’ marriage posed a threat to security, 

order, or public safety; (2) they had not stated a penological 

justification for the challenged policy; (3) they had not argued 

that arranging the marriage would adversely impact staff or 

resources; and (4) they had not argued that the technology was 

unavailable to comply with the inmates’ request to marry. It 

determined that the officials had not satisfied the Turner test 

and that every factor weighed in the inmates’ favor.

The court rejected the officials’ argument that Turner only 

requires prison officials to have a reasonable justification for 

preventing inmates from marrying and that § 42-109 provides that justification because it makes telephonic marriages 

invalid. It stated that like the challenged regulation in Turner, 

the officials’ argument showed the Department’s marriage 

restriction was an exaggerated response, which was not related 

to a valid security or rehabilitative concern. It concluded 

24 See, Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct. 

2361, 60 L. Ed. 2d 980 (1979); Metro. Med. Ctr. & Extended Care Fac. v. 

Harris, 693 F.2d 775 (8th Cir. 1982).

25 Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
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that the officials had relied solely on their interpretation of 

§ 42-109 to establish a policy that “flies in the face of the 

[inmates’] constitutional rights.”

The court concluded that the Department’s policy had impermissibly burdened the inmates’ right to marry and that their 

interpretation of § 42-109, in the context of this case, was 

constitutionally flawed. It sustained the inmates’ motion for 

summary judgment, denied the officials’ motion for summary 

judgment, and enjoined the officials and their agents from 

denying the inmates’ a marriage via videoconference or enforcing the Department’s policy that rested on an interpretation 

of § 42-109 to require the inmates’ physical presence before 

an officiant.

ASSIGNMENTS OF ERROR

The state officials assign that the court erred as follows:

(1) The court erred to the extent that it ordered any relief 

under § 84-911 of the APA, because the inmates failed to 

challenge the validity of a regulation and failed to name the 

Department as a defendant;

(2) the court erred to the extent that it determined the 

inmates’ rights under any statute, because the inmates failed to 

file a claim under Neb. Rev. Stat. § 25-21,150 (Reissue 2016) 

of the Uniform Declaratory Judgments Act;

(3) the court erred to the extent it granted the inmates 

injunctive relief under the principles of Ex parte Young,

26

because their claims were against the officials in their individual capacities;

(4) the court erred to the extent it concluded that the 14th 

Amendment commands states to affirmatively facilitate videoconference wedding ceremonies between inmates;

(5) the court violated the State’s sovereign immunity to 

the extent its order requires the State to take an affirmative 

action; and

26 Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).
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(6) the court erred in denying the officials’ motion for summary judgment, and in sustaining the inmates’ motion for summary judgment and awarding them costs.

STANDARD OF REVIEW

[8,9] We 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 of law.27 In 

reviewing a summary judgment, we view the evidence in the 

light most favorable to the party against whom the judgment 

was granted and give that party the benefit of all reasonable 

inferences deducible from the evidence.28

[10-12] We independently review questions of law decided 

by a lower court.29 The determination of constitutional requirements presents a question of law.30 Statutory interpretation 

presents a question of law.31

ANALYSIS

[13] We need not address the state officials’ arguments 

about the inmates’ pleading deficiencies for their state law 

claims here, because those deficiencies are irrelevant to the 

inmates’ § 1983 claim. The district court engaged in statutory 

interpretation only to reject the officials’ argument that the 

Department’s regulation did not violate federal law. As such, 

its decision primarily rested on the inmates’ § 1983 claim. 

And we reject the officials’ argument that sovereign immunity 

barred any claim for an order to compel them to perform any 

27 Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).

28 Id.

29 In re Estate of Fuchs, ante p. 667, ___ N.W.2d ___ (2017); State v. Harris, 

296 Neb. 317, 893 N.W.2d 440 (2017).

30 Harris, supra note 29.

31 State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
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affirmative act. 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.32

However, we find merit in the officials’ third assignment of 

error that the inmates could not obtain injunctive relief against 

them, because in their amended complaint, they sued the officials only in their individual capacities.

Section 1983, in relevant part, provides the following:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United 

States or other person within the jurisdiction thereof to 

the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the 

party injured in an action at law, suit in equity, or other 

proper proceeding for redress . . . .

In Will v. Michigan Dept. of State Police,

33 the U.S. Supreme 

Court held that state officials “acting in their official capacities” are not “‘persons’” subject to liability for damages under 

§ 1983. The Court interpreted § 1983 to mean that a suit against 

a state official in his or her official capacity is a suit against the 

official’s office. “Indeed, when officials sued in this capacity in 

federal court die or leave office, their successors automatically 

assume their roles in the litigation.”34

[14,15] In Hafer v. Melo,

35 however, the Supreme Court 

clarified that a state official’s liability under § 1983 turns on 

the capacity in which the official was sued, not on the capacity in which the defendant acted. It held that state officials 

32 See Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379, 

810 N.W.2d 149 (2012).

33 Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 

105 L. Ed. 2d 45 (1989).

34 Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991).

35 Id.
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sued in their individual capacities can be personally liable 

under § 1983 for an action taken under color of state law that 

deprived the plaintiff of a federal right.36 A victory in a personal capacity action is a victory against the individual defendant, rather than against the entity that employs him.37

[16-18] These holdings rest on the Supreme Court’s 11th 

Amendment jurisprudence. The 11th Amendment bars a suit 

against state officials when “‘the state is the real, substantial 

party in interest.’”38 And 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.39 However, under 

the doctrine of Ex parte Young,

40 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.41

In Ex parte Young, the U.S. Supreme Court held that the 

11th Amendment did not bar a suit to enjoin a state attorney 

general from enforcing a state statute that allegedly violated 

the 14th Amendment. The Court surveyed its case law and 

concluded that it showed state officials who are sufficiently 

connected to the enforcement of an unconstitutional enactment can be enjoined from enforcing it.42 But the Court also 

explained that such claims do not affect the state, because if 

the statute that the official seeks to enforce is unconstitutional 

36 Hafer, supra note 34.

37 Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114 

(1985).

38 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. 

Ct. 900, 79 L. Ed. 2d 67 (1984).

39 Pennhurst State School & Hosp., supra note 38.

40 Ex parte Young, supra note 26.

41 Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 122 S. Ct. 

1753, 152 L. Ed. 2d 871 (2002).

42 See Ex parte Young, supra note 26.
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and therefore void, then the official is “stripped of his official 

or representative character and is subjected in his person to the 

consequences of his individual conduct.”43

[19] Courts holding that injunctive relief is available in 

individual capacity suits seem to have read this statement to 

mean that a suit for prospective relief is against an official 

individually.44 But the Supreme Court later explained that the 

“fiction of [Ex parte] Young” has been “accepted as necessary” 

to harmonize states’ 11th Amendment immunity with the need 

to vindicate federal rights and hold state officials responsible to 

the supremacy of federal law.45 And the Court has consistently 

explained that state officials sued in their official capacities

for injunctive relief are persons under § 1983, because official 

capacity actions for prospective relief are not treated as actions 

against the State.46

[20] The doctrine in Ex parte Young is an exception to a 

state’s immunity.47

[T]he exception . . . is based in part on the premise that 

sovereign immunity bars relief against States and their 

officers in both state and federal courts, and that certain 

suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to 

remain the supreme law of the land.48

In contrast, a personal capacity suit against a state official 

does not implicate sovereign immunity, because the plaintiff 

43 Id., 209 U.S. at 160.

44 See, Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180 (3d 

Cir. 2009); MCI Telecommunication Corp. v. Bell Atlantic PA, 271 F.3d 

491 (3d Cir. 2001); Clajon Production Corp. v. Petera, 70 F.3d 1566 (10th 

Cir. 1995).

45 See Pennhurst State School & Hosp., supra note 38, 465 U.S. at 105.

46 See, Hafer, supra note 34; Will, supra note 33; Graham, supra note 37.

47 See, Verizon Md. Inc., supra note 41; Alden v. Maine, 527 U.S. 706, 119 

S. Ct. 2240, 144 L. Ed. 2d 636 (1999).

48 Alden, supra note 47, 527 U.S. at 747.
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seeks recovery from the official personally—not from the 

state’s treasury.49

Because “individual (or personal) capacity suits” seek recovery from an official personally, instead of seeking “to conform 

the State’s conduct to federal law,” the Seventh Circuit has 

held that the exception in Ex parte Young applies only when a 

state official is sued in his or her official capacity.50 The court 

reasoned that because individual capacity suits do not implicate 11th Amendment immunity, creating an exception to that 

immunity for prospective relief would have been unnecessary 

if a plaintiff could sue state officials in their individual capacities. It therefore concluded that the twin goals served by the 

exception in Ex parte Young to 11th Amendment immunity—

vindicating federal rights and holding state officials responsible to federal law—cannot be achieved by a lawsuit against a 

state official in his or her individual capacity.51 Among courts 

that have reached this issue, the trend and weight of authority 

is that injunctive relief is not available against officials sued in 

their individual capacities.52

In the instant case, the inmates are not seeking money damages for past injuries, but instead are seeking injunctive relief. 

49 Alden, supra note 47.

50 Ameritech Corp. v. McCann, 297 F.3d 582, 586 (7th Cir. 2002).

51 Id.

52 See, Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011); Greenawalt v. 

Indiana Dept. of Corrections, 397 F.3d 587 (7th Cir. 2005); Ameritech 

Corp., supra note 50; Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990); 

Feit v. Ward, 886 F.2d 848 (7th Cir. 1989); Akins v. Bd. of Gov. of State 

Colleges & Univ., 840 F.2d 1371 (7th Cir. 1988), cert. granted and 

judgment vacated on other grounds 488 U.S. 920, 109 S. Ct. 299, 102 

L. Ed. 2d 319; Pascarella v. Swift Transp. Co., Inc., 643 F. Supp. 2d 639 

(D.N.J. 2009); Hatfill v. Gonzales, 519 F. Supp. 2d 13 (D.D.C. 2007); 

Meza v. Livingston, No. 09-50367, 2010 WL 6511727 (5th Cir. Oct. 

19, 2010) (unpublished opinion); Preble v. Milyard, No. 07-cv-01361-

REB-KMT, 2008 WL 4371906 (D. Colo. Sept. 22, 2008) (unpublished 

decision).
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Because the relief is prospective in nature, the State’s sovereign immunity would not bar the claim against a state official 

sued in his or her official capacity.53

But we agree with the courts that have held injunctive relief 

cannot be obtained in a § 1983 action against state officials 

who were sued in their individual capacities. An injunction 

against the three named state officials, as individuals, would 

not vindicate federal rights or hold state officials responsible to 

federal law, because they have no power as individuals to carry 

out these responsibilities.

[21] As a result, we hold that when a plaintiff in a § 1983 

action 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 official capacity. Because the 

inmates sued the state officials in their individual capacities 

only, the court erred in granting them injunctive relief on their 

§ 1983 claim.

CONCLUSION

We conclude that because federal law controls when a party 

must move for attorney fees in a § 1983 action, the court’s ruling on the merits of the pleadings is an appealable judgment. 

But we conclude that the court erred in granting the inmates 

injunctive relief, because in the inmates’ amended complaint, 

they sued the state officials only in their individual capacities. 

Accordingly, we reverse the court’s judgment and remand the 

cause with instructions for the court to vacate its order.

Reversed and remanded with instru

53 See, Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb. 

540, 855 N.W.2d 788 (2014); Doe v. Board of Regents, 280 Neb. 492, 788 

N.W.2d 264 (2010).