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25 Nebraska Appellate Reports

D.M. v. STATE

Cite as 25 Neb. App. 596

D.M., appellee, v. State of Nebraska et al., 

appellees, and Geoff Britton and

Michael L. Kenney, appellants.

___ N.W.2d ___

Filed March 13, 2018. No. A-16-587.

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, 

Nebraska Supreme Court Online Library

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

03/13/2018 08:12 AM CDT
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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.
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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 prisonconditions 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.
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Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Reversed in part, and in part dismissed.

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 and Bishop, Judges.

Bishop, Judge.

I. INTRODUCTION

While incarcerated at the Omaha Correctional Center, D.M. 

was sexually assaulted by a guard. D.M. sued the State, the 

Nebraska Department of Correctional Services (DCS), and 

various individual defendants in their official and individual 

capacities. This appeal involves two of those defendants, Geoff 

Britton (an investigator for the DCS) and Michael L. Kenney 

(warden of the Omaha Correctional Center), and the remaining 

constitutional claims pending against them. Both filed motions 

to dismiss the remaining claims for failure to state a claim, and 

both alleged they were entitled to qualified immunity as a matter of law. The district court for Douglas County overruled the 

motions, and Britton and Kenney filed interlocutory appeals 

challenging the district court’s order denying their entitlement 

to qualified immunity.

Because D.M.’s First Amendment claim necessitates 

resolving a fact-related dispute, we conclude this part of the 

appeal is not immediately reviewable under the collateral 

order doctrine and we dismiss the appeal in part as to the 

First Amendment issue for lack of jurisdiction. However, 

we conclude D.M. failed to establish a violation of his 8th 

and 14th Amendment rights as to Britton and Kenney; therefore, they are entitled to qualified immunity on those claims. 

We reverse the district court’s order to the extent it denied 
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Britton and Kenney qualified immunity on the 8th and 14th 

Amendment claims.

II. BACKGROUND

Due to the procedural posture of this case, the facts considered are those alleged in D.M.’s amended complaint. D.M. 

states that he was sexually assaulted by Anthony Hansen, 

a guard, in the commons area of the Omaha Correctional 

Center. D.M. reported the sexual assault to Jim Brown, his 

unit manager, immediately after it occurred. D.M. also completed a formal complaint and grievance form. Thereafter, 

D.M. was placed in segregation for more than 30 days while 

corrections/prison officials investigated the allegations made 

against Hansen.

While in segregation, D.M. was isolated from the general 

population and allowed no contact with other inmates. He had 

limited telephone privileges and was instructed not to speak 

to anyone about his allegations, including friends and family. 

Prison guards were instructed not to speak with D.M. Britton 

repeatedly interrogated D.M. about the incident, told D.M. 

that he would get jail time for lying about Hansen, encouraged 

D.M. to change his story, and told D.M. that he was “ruining 

the life” of Hansen and Hansen’s wife, who also worked at 

the facility.

Hansen was allowed to work for some time during the investigation, but was eventually placed on paid leave, while D.M. 

remained in segregation. D.M. requested that he be transferred 

to another facility rather than remain in segregation, but was 

told that there was no room and that he would not be transferred. D.M. repeatedly requested counseling services, but 

none were initially provided.

After the investigation, Hansen pled guilty to sexual assault. 

D.M. was then transferred from his minimum security facility 

to a maximum security facility with a “reputation for violence.” 

After transfer and numerous requests, D.M. was approved for 

counseling and received two sessions before his release.
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D.M. filed a complaint against the State in December 2013. 

D.M. brought tort claims for negligent hiring/supervising, 

failure to protect, and respondeat superior against the State 

and the DCS; Robert P. Houston (director of the DCS), Britton 

(then known as John Doe #1), and Brown, in both their individual and official capacities; and Hansen, in both his individual and official capacities. Several persons and entities filed a 

motion to dismiss pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) 

for failure to state a claim and also on the ground of sovereign 

immunity. Filing the motion to dismiss were Houston, in both 

his individual and official capacities; the State; the DCS; and 

John Doe #1, Brown, and Hansen, in their official capacities 

only. See D.M. v. State, 23 Neb. App. 17, 867 N.W.2d 622 

(2015), overruled on other grounds, Davis v. State, 297 Neb. 

955, 902 N.W.2d 165 (2017). The district court dismissed 

D.M.’s entire complaint with prejudice, concluding that all of 

his claims were barred by sovereign immunity. Id. On appeal, 

we affirmed in part, and in part reversed and remanded for 

further proceedings, because we found that sovereign immunity did not apply to all of D.M.’s claims and all of the 

defendants. Id.

D.M. filed an amended complaint in December 2015 against 

the State; the DCS; and Houston, Britton (formerly John 

Doe #1), Kenney, Brown, and Hansen in their individual 

and official capacities. D.M. alleged six causes of action: 

(1) First Amendment retaliation (against all defendants), (2) 

violation of equal protection and due process (against all 

defendants), (3) cruel and unusual punishment (against all 

defendants) under the Nebraska and federal Constitutions, (4) 

intentional infliction of emotional distress (against Hansen 

only), (5) intentional infliction of emotional distress (against 

all defendants), and (6) negligent infliction of emotional distress (against all defendants).

In December 2015, the State and the DCS, along with 

Houston, Britton, Brown, and Hansen (in their official capacities only), filed a motion to dismiss the entire amended 
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complaint. The district court subsequently granted the motion 

in part, dismissing D.M.’s fifth cause of action (intentional 

infliction of emotional distress) and sixth cause of action 

(negligent infliction of emotional distress) with prejudice. 

As to Britton and Kenney, this left only the three constitutional claims.

In March 2016, Britton and Kenney filed identical motions 

to dismiss D.M.’s amended complaint for failure to state a 

claim upon which relief can be granted and/or because they 

were entitled to qualified immunity as a matter of law. After 

a hearing, the district court denied these motions on May 

20. Britton and Kenney filed an interlocutory appeal from 

that order.

III. ASSIGNMENTS OF ERROR

Britton and Kenney assign that the district court erred in (1) 

overruling their motions to dismiss on the ground of qualified 

immunity and (2) denying their individual assertions of qualified immunity without issuing an “individualized analysis” of 

each claim.

IV. STANDARD OF REVIEW

[1] An appellate court determines jurisdictional questions 

that do not involve a factual dispute as a matter of law. Carney 

v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).

[2] A district court’s denial of a motion to dismiss is reviewed 

de novo. See Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 

857 N.W.2d 789 (2015). See, also, StoreVisions v. Omaha Tribe 

of Neb., 281 Neb. 238, 795 N.W.2d 271 (2011), modified on 

denial of rehearing 281 Neb. 978, 802 N.W.2d 420.

[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. 

See Tryon v. City of North Platte, 295 Neb. 706, 890 N.W.2d 

784 (2017).
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V. ANALYSIS

[4-6] 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. Hallie Mgmt. Co. v. 

Perry, 272 Neb. 81, 718 N.W.2d 531 (2006). Generally, only 

final orders are appealable. Carney, supra. 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. Carney, supra.

[7-9] The present appeal is taken from the district court’s 

order overruling Britton’s and Kenney’s motions to dismiss, 

both of which asserted D.M.’s amended complaint failed to 

state a claim upon which relief could be granted and/or claimed 

entitlement to qualified immunity as a matter of law. Denial 

of a motion to dismiss is not a final order. See Hallie Mgmt. 

Co., supra. However, the collateral order doctrine is an exception to the final order rule. Carney, supra. Britton and Kenney 

assert that our jurisdiction is proper under the collateral order 

doctrine. Under the collateral order doctrine, the denial of a 

claim of qualified immunity is appealable, notwithstanding the 

absence of a final judgment, if the denial of immunity turns on 

a question of law. Carney, supra.

1. Collateral Order Doctrine

We take a moment to address the status of the collateral 

order doctrine in Nebraska. Last year, the Nebraska Supreme 

Court decided Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 

296 (2017), wherein it overruled eight enumerated cases, originating with Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 

430 (1997), that allowed interlocutory appeals through the 

collateral order doctrine for orders disqualifying counsel in a 

civil case. The Supreme Court engaged in a detailed discussion 
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of the right to appeal in Nebraska, reiterating that the right is 

“‘purely statutory.’” Heckman, 296 Neb. at 461, 894 N.W.2d at 

299. “In other words, unless a statute provides for an appeal, 

such right does not exist. The right to appeal does not exist at 

common law.” Id.

Heckman, supra, refers to Richardson-Merrell Inc. v. Koller, 

472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985), 

wherein the U.S. Supreme Court made clear that the collateral 

order doctrine is a narrow exception limited to trial court orders 

affecting rights that would be irretrievably lost in the absence 

of an immediate appeal. To fall within the federal collateral 

order doctrine, an order must (1) conclusively determine the 

disputed question, (2) resolve an important issue completely 

separate from the merits of the action, and (3) be effectively 

unreviewable on appeal from final judgment. See id. Heckman

concluded that orders disqualifying counsel in civil cases did 

not satisfy the third requirement.

Although Heckman, supra, eliminated the use of the collateral order doctrine to file interlocutory appeals from orders 

disqualifying counsel, we do not read Heckman to eliminate 

the collateral order doctrine for appeals concerning qualified 

immunity. We reach this conclusion for several reasons. First, 

in Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014), 

our Supreme Court concluded it had jurisdiction under the 

collateral order doctrine over an appeal from an order denying a motion for summary judgment which involved a claim 

of qualified immunity. Ordinarily, an appeal from an order 

denying summary judgment is not a final, appealable order; 

however, under the collateral order doctrine, the denial of a 

claim of qualified immunity may be appealable if it presents 

only questions of law. See id. Second, the cases specifically 

enumerated and overruled in Heckman, supra, considered the 

collateral order doctrine as it related to interlocutory appeals 

from attorney disqualification orders, and it did not specifically 

overrule Carney, supra, and its application of the doctrine to 

qualified immunity appeals. Finally, the U.S. Supreme Court 
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and the Nebraska Supreme Court have emphasized the importance of resolving qualified immunity questions at the earliest 

possible stage in litigation. See Hunter v. Bryant, 502 U.S. 224, 

112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). See, also, Waldron v. 

Roark, 298 Neb. 26, 902 N.W.2d 204 (2017) (noting that both 

U.S. Supreme Court and Eighth Circuit Court of Appeals have 

repeatedly stressed importance of resolving immunity questions 

at earliest possible stage in litigation; those entitled to qualified 

immunity hold more than mere defense to liability, they hold 

entitlement not to stand trial or face other burdens of litigation 

and if case is erroneously permitted to go to trial, then qualified immunity is effectively lost). Accordingly, having determined that Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 

296 (2017), did not abrogate the collateral order doctrine with 

respect to appeals involving qualified immunity which present 

purely questions of law, we turn to Britton’s and Kenney’s 

claims of qualified immunity raised in the present appeal.

2. Qualified Immunity

[10,11] 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. Carney 

v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). In some 

instances, it might be unclear, based upon the record before a 

court, whether a defendant is entitled to qualified immunity. 

Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007). In 

those instances, “‘[a] hearing would likely clarify the matter. 

It may be that resolution of the qualified immunity defense 

. . . depends upon the resolution of disputed fact issues or on a 

credibility determination. . . .’” Id. at 986, 735 N.W.2d at 391 

(quoting Johnson v. Garraghty, 57 F. Supp. 2d 321 (E.D. Va. 

1999)). Thus, where appropriate, the issues relating to qualified 

immunity may be determined via a separate trial or evidentiary 

hearing. Carney, supra.
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[12] 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. Carney, supra. First, we 

determine whether the plaintiff has alleged the violation of 

a constitutional right. Id. Second, we determine whether that 

right was clearly established at the time of the alleged violation. Id. Finally, we determine whether the evidence shows that 

the particular conduct alleged was a violation of the right at 

stake. Id. The first two inquiries are questions of law; the last 

could require factual determinations to the extent that evidence 

is in conflict. Id.

Determining whether the plaintiff alleged a violation of a 

constitutional right and whether that right was clearly established are questions of law. Id. Evaluating whether the evidence shows that the particular conduct alleged violated the 

right at stake could require factual determinations to the extent 

that evidence is in conflict. See id. If this analysis requires 

factual determinations, it is not purely a question of law and 

we lack jurisdiction to review the denial of qualified immunity 

under the collateral order doctrine. See id.

We first consider the district court’s order denying Britton’s 

and Kenney’s motions to dismiss based on assertions of qualified immunity.

(a) District Court’s Order 

Regarding Immunity Claims

The State asserts that the district court erred in failing to 

issue a reasoned, thorough, and individualized analysis of 

Britton’s and Kenney’s qualified immunity claims. In both 

motions to dismiss, Britton and Kenney each asserted he was 

“entitled to qualified immunity as a matter of law.” It has been 

held that officials are entitled to a thorough determination of 

their claims of qualified immunity if that immunity is to mean 

anything at all. Saylor v. Nebraska, 812 F.3d 637 (8th Cir. 

2016). A thorough determination discusses all of the claims 

litigated. Id.
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In this case, the district court’s order stated:

On the 14th day of April, 2016 the motions to dismiss 

of . . . Kenney and . . . Britton came on for hearing. The 

parties appeared by counsel. Arguments were made and 

the matters were taken under advisement.

The Court finds that the motions of . . . Kenney and 

Britton should be overruled and denied.

The State argues that the district court’s failure to make a reasoned, thorough, and individualized analysis of Britton’s and 

Kenney’s qualified immunity assertion warrants remanding the 

cause to the district court for such determinations in the event 

this court declines to consider the issues. We elect to consider 

the qualified immunity claims under the framework of Carney 

v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). Accordingly, 

we will consider whether (1) D.M. 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. See id. We keep in mind that the 

first two inquiries present questions of law and that the last 

could require factual determinations to the extent the evidence 

is in conflict. See id.

As discussed further below, we conclude we have jurisdiction over the 8th and 14th Amendment claims and can address 

qualified immunity as to those allegations. However, we begin 

with D.M.’s First Amendment claim and conclude we do not 

have jurisdiction to immediately review Britton’s and Kenney’s 

claims of qualified immunity under the collateral order doctrine as to D.M.’s retaliation claim.

(b) First Amendment Retaliation

D.M. claims that he engaged in constitutionally protected 

speech when he reported the sexual assault. He further claims 

that in retaliation for his report, he was placed in segregation, guards were instructed not to speak to him or acknowledge him, and his privileges and his contact with others 
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were limited or excluded entirely, all in violation of his First 

Amendment rights.

The right to be free from retaliation for utilizing a prison 

grievance process is a right protected by the First Amendment. 

See Santiago v. Blair, 707 F.3d 984 (8th Cir. 2013). Therefore, 

D.M. has alleged a violation of a constitutionally protected 

right based on his allegation that his report of the sexual 

assault by Hansen subjected him to segregation and the other 

conditions described above. The first portion of the collateral 

order jurisdictional analysis set forth in Carney, supra, is satisfied. Next, we consider whether this right was clearly established at the time of the alleged violation.

For a right to be “‘clearly established,’” the contours of 

the right must be sufficiently clear that a reasonable official would understand that what he was doing violates that 

right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 

3034, 97 L. Ed. 2d 523 (1987). The right to be free from 

retaliation when using a prison grievance system was clearly 

established at the time of the alleged violation. See, Nelson v. 

Shuffman, 603 F.3d 439 (8th Cir. 2010) (holding that plaintiff 

who allegedly was held in isolation in structurally unfinished 

and inadequate ward and deprived of access to legal counsel, 

mail, family, recreation, and telephone calls demonstrated 

sufficient deprivations to survive summary judgment on First 

Amendment retaliation claim); Cooper v. Schriro, 189 F.3d 

781 (8th Cir. 1999) (allegation correctional officer shut off 

water for 5 days because prisoner used prison grievance system sufficient to state retaliation claim); Burgess v. Moore, 39 

F.3d 216 (8th Cir. 1994) (threat made in retaliation for prisoner’s use of prison grievance system sufficient to state First 

Amendment retaliation claim). D.M.’s amended complaint 

alleged a violation of a clearly established constitutional right, 

and therefore, the first two requirements of the collateral order 

jurisdictional analysis for D.M.’s First Amendment retaliation 

claim are satisfied.
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[13] The third factor requires us to determine whether the 

evidence shows that the particular alleged conduct was a violation of the right at stake. 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. Carney v. 

Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). Although the 

district court did not provide any insight as to why it rejected 

Britton’s and Kenney’s motions to dismiss, we conclude that 

for purposes of a motion to dismiss, an analysis of D.M.’s First 

Amendment claim requires factual determinations and cannot 

be decided as a matter of law, as discussed next.

[14] In order to succeed on a First Amendment retaliation claim, D.M. 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. See Saylor v. Nebraska, 812 F.3d 637 (8th 

Cir. 2016).

As discussed above, utilizing the prison grievance procedures to report the sexual assault was a protected activity, 

satisfying the first prong of the First Amendment retaliation 

analysis. However, determining whether Britton and Kenney 

engaged in adverse actions which would chill a person of 

ordinary firmness from using the prison grievance system 

and, if there were such adverse actions, determining whether 

such actions were motivated at least in part by D.M. filing 

his report present issues of fact. There is insufficient information at this stage of the proceedings to know whether any of 

the actions attributed to Britton and/or Kenney were designed 

to keep D.M. safe and preserve the integrity of the ongoing investigation or whether such actions were retaliatory in 

nature. These are issues of fact yet to be resolved. And as set 

forth in Carney, supra, an appellate court lacks jurisdiction 

over qualified immunity appeals under the collateral order 
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doctrine that turn on issues of fact. Therefore, we conclude 

this part of the appeal is not immediately reviewable under the 

collateral order doctrine and we dismiss the appeal for lack of 

jurisdiction as to the First Amendment issue.

(c) Equal Protection and Due Process

D.M.’s second cause of action is titled “Violation of Equal 

Protection and Due Process.” Within this cause of action, D.M. 

alleged that he was “subjected to atypical and significant hardship that other prisoners did not suffer, specifically shunning 

and lack of verbal contact with any human within the prison, 

except for verbal contact in the form of repeated interrogations and threats of prosecution.” He further alleged that he 

was treated differently than other inmates placed in segregation and that there was no rational basis for such treatment. 

This language indicates separate claims for due process and 

equal protection under the 14th Amendment. (We note that 

D.M. includes the Fifth Amendment when making allegations 

in his amended complaint related to Due Process and Equal 

Protection, but as noted by the State in its brief, the Fifth 

Amendment only restrains the federal government and neither Britton nor Kenney are federal employees. See Livers v. 

Schenck, 700 F.3d 340 (8th Cir. 2012).)

(i) Due Process

[15] 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. Wilkinson v. Austin, 

545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005). D.M. 

did not allege deprivation of his life or property. He alleged 

violations of a protected liberty interest, e.g., he suffered 

“atypical and significant hardship.” 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. Id.
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The Constitution does not give rise to a liberty interest in 

avoiding transfer to more adverse conditions of confinement. 

Id. However, a liberty interest in avoiding particular conditions 

of confinement may arise from state policies or regulations. Id.

But these interests will be generally limited to freedom from 

restraint which, while not exceeding the sentence in such an 

unexpected manner as to give rise to protection by the Due 

Process Clause of its own force, nonetheless “imposes atypical 

and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 

484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).

[16] Absent extraordinary circumstances, administrative segregation as such, being an incident to the ordinary life as a 

prisoner, will never be a ground for a constitutional claim. 

Pichardo v. Kinker, 73 F.3d 612 (5th Cir. 1996). An allegation 

by an inmate that his due process rights were violated by virtue 

of his or her placement in administrative segregation, without 

more, does not implicate a liberty interest. Christianson v. 

Clarke, 932 F. Supp. 1178 (D. Neb. 1996). 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.” Moorman v. Thalacker, 83 F.3d 970, 972 

(8th Cir. 1996).

We conclude that we have jurisdiction over D.M.’s due 

process claim under the collateral order doctrine because it 

does not present an issue of fact. D.M.’s allegation that his 

placement into segregation, and the conditions associated with 

that, may have presented more difficult conditions than the 

general prison population. However, such allegations fail to 

establish a due process claim as a matter of law. As we noted 

above, 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.” Moorman, 
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83 F.3d at 972. D.M. failed to allege facts that rise to this legal 

threshold, and thus, Britton and Kenney are entitled to qualified immunity on D.M.’s due process claim.

(ii) Equal Protection

D.M. also alleged violations of his 14th Amendment right 

to equal protection. D.M.’s allegation of an equal protection 

violation consists of one sentence: “[D.M.] was also treated 

differently than other inmates placed in segregation and there 

was no rational basis for [his] treatment.”

[17,18] 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. Cleburne v. Cleburne Living Center, Inc., 473 

U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985). However, 

prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices 

that in their judgment are needed to preserve internal order 

and discipline and to maintain institutional security. Bell v. 

Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 

(1979). 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. See Phillips v. Norris, 320 F.3d 844 

(8th Cir. 2003).

We conclude we have jurisdiction over the equal protection 

claim under the collateral order doctrine because it does not 

present a factual issue, as D.M. did not allege a valid claim as 

a matter of law. D.M. did not allege that he is a member of a 

protected class and did not allege a violation of a fundamental 

right. Although D.M. did allege that he was treated differently than other inmates in segregation, he alleged no facts to 
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describe or support this allegation. We cannot conclude that his 

treatment had no rational relation to a legitimate penal interest 

or that his treatment constituted purposeful or intentional discrimination for purposes of his equal protection claims. D.M. 

failed to allege facts that rise to this legal threshold, and thus, 

Britton and Kenney are entitled to qualified immunity on the 

14th Amendment equal protection claim.

(d) Cruel and Unusual Punishment

D.M. alleged that his time and treatment in segregation was 

cruel and unusual punishment because he was subjected to 

more than 30 days in total isolation with his only verbal contact coming in the form of interrogation and threats. He further 

alleged that the sexual assault by Hansen constituted cruel and 

unusual punishment.

[19] 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. Farmer v. Brennan, 511 U.S. 825, 114 

S. Ct. 1970, 128 L. Ed. 2d 811 (1994). The Eighth Amendment 

imposes duties on prison officials, who must provide humane 

conditions of confinement; prison officials must ensure that 

inmates receive adequate food, clothing, shelter, and medical 

care, and must take reasonable measure to guarantee the safety 

of inmates. Farmer, supra. Some conditions of confinement 

may establish an Eighth Amendment violation in combination 

when each would not do so alone, but only when they have a 

mutually enforcing effect that produces the deprivation of a 

single, identifiable human need such as food, warmth, or exercise—for example, a low cell temperature at night combined 

with a failure to issue blankets. Wilson v. Seiter, 501 U.S. 294, 

111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991).

[20,21] A prison official violates the Eighth Amendment 

only when two requirements are met. Farmer, supra. First, the 

deprivation alleged must be, objectively, sufficiently serious. 
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Id. This means that a prison official’s act or omission must 

result in the denial of the minimal civilized measure of life’s 

necessities. Id. The second requirement follows from the principle that only the unnecessary and wanton infliction of pain 

implicates the Eighth Amendment. Farmer, supra. To violate 

the Cruel and Unusual Punishment Clause, a prison official must have a sufficiently culpable state of mind. Farmer, 

supra. 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. Farmer, 511 U.S. 

at 834. 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. 

Farmer, supra.

[22] D.M. failed to allege that he was deprived of a single 

basic, human need, let alone some combination of deprivation. 

His allegation that placement in isolation qualifies as a deprivation serious enough to implicate the Eighth Amendment 

does not pass muster. He failed to state a claim as a matter of 

law. In addition, D.M.’s allegation that his sexual assault by 

Hansen qualified as cruel and unusual punishment does not 

implicate either Britton or Kenney. The standard by which 

a supervisor is held liable under § 1983 in his or her individual capacity for the actions of a subordinate is extremely 

rigorous. D.M. v. State, 23 Neb. App. 17, 867 N.W.2d 622 

(2015), overruled on other grounds, Davis v. State, 297 Neb. 

955, 902 N.W.2d 165 (2017). 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. Id. Kenney is not alleged to 

have participated in the sexual assault or to have otherwise 

authorized, approved, or knowingly acquiesced in the assault. 

Similarly, D.M. does not allege that Britton participated in, 
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directed, encouraged, knew about, or was in any way aware of 

the assault before it happened. D.M. failed to allege facts that 

rise to the legal threshold for an Eighth Amendment claim as 

to Britton and Kenney, and thus, they are entitled to qualified 

immunity on the Eighth Amendment cruel and unusual punishment claim.

VI. CONCLUSION

For the reasons stated above, we conclude Britton and 

Kenney are entitled to qualified immunity as to the 8th and 

14th Amendment claims, and we reverse in part the district 

court’s order denying their motions to dismiss as to these 

claims. However, we find we lack jurisdiction to review the 

district court’s denial of Britton’s and Kenney’s motions to dismiss D.M.’s First Amendment retaliation claim; and as to that 

part of the appeal, we dismiss for lack of jurisdiction.

Reversed in part, and in part dismissed.