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Bernard Schaeffer, appellant, v. 

Scott Frakes et al., appellees.

___ N.W.2d ___

Filed August 21, 2020. No. S-19-938.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss 

for failure to state a claim, a plaintiff must allege sufficient facts to state 

a claim to relief that is plausible on its face. In cases in which a plaintiff 

does not or cannot allege specific facts showing a necessary element, the 

factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that 

discovery will reveal evidence of the element or claim.

3. Constitutional Law: Actions. A civil remedy is provided under 42 

U.S.C. § 1983 (2012) for deprivations of federally protected rights, 

statutory or constitutional, caused by persons acting under color of 

state law.

4. ____: ____. In order to assert a claim under 42 U.S.C. § 1983 (2012), 

the plaintiff must allege that he or she has been deprived of a federal 

constitutional right and that such deprivation was committed by a person 

acting under color of state law.

5. Sentences. The meaning of a sentence is, as a matter of law, determined 

by the contents of the sentence itself.

6. Due Process. A plaintiff asserting the inadequacy of procedural due 

process must first establish that the government deprived him or her of 

interests which constitute “liberty” or “property” within the meaning of 

the Due Process Clause.

7. Due Process: Public Officers and Employees. The due process protection in its substantive sense limits what the government may do in both 

its legislative and its executive capacities. But the criteria to identify 

Nebraska Supreme Court Online Library

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

11/09/2020 02:10 AM CST
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what is fatally arbitrary differ depending on whether it is legislation or a 

specific act of a government officer that is at issue.

8. ____: ____. The substantive component of the Due Process Clause is 

violated by executive action only when it can properly be characterized 

as arbitrary, or conscience shocking, in a constitutional sense.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirmed.

Gerald L. Soucie for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith 

for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.

Papik, J.

Bernard Schaeffer alleges in this action brought under 

42 U.S.C. § 1983 (2012) that officials within the Nebraska 

Department of Correctional Services (DCS) violated his federal 

constitutional rights in the calculation of his parole eligibility date. The district court dismissed Schaeffer’s complaint, 

finding that the U.S. Supreme Court’s decision in Wilkinson 

v. Dotson, 544 U.S. 74, 78, 125 S. Ct. 1242, 161 L. Ed. 2d 

253 (2005), precluded him from bringing his complaint under 

§ 1983 because he sought to challenge “‘the fact or duration of 

his confinement.’” On Schaeffer’s appeal of the district court’s 

dismissal, we find that Schaeffer has failed to adequately allege 

that his federal constitutional rights were violated, as he must 

to proceed under § 1983, and thus affirm.

BACKGROUND

Schaeffer’s Convictions.

The following details are summarized from Schaeffer’s 

complaint: On May 26, 1977, Schaeffer was arrested in Hall 

County, Nebraska, for first degree murder. He later pleaded 

guilty to first degree murder in the district court for Hall 

County. Schaeffer was still a juvenile when the murder was 
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committed. On September 30, he was sentenced to life imprisonment. This sentence was mandatory under then-existing 

Nebraska law.

On April 12, 1979, Schaeffer was sentenced on an assault 

conviction in the district court for Lancaster County. He was 

sentenced to a term of 1 to 2 years’ imprisonment, which was 

to be served consecutively to any other sentences being served. 

DCS combined this sentence with his earlier life sentence into a 

single sentence of imprisonment for life plus 1 to 2 years.

On May 25, 1983, Schaeffer was sentenced on another 

assault conviction in the district court for Lancaster County. 

He was sentenced to a term of 12 to 40 years’ imprisonment, 

which was to be served consecutively to any other sentences 

being served. DCS combined the sentence with his earlier sentences into a single sentence of imprisonment for life plus 13 

to 42 years.

Schaeffer was not entitled to credit for time served from 

the date of his arrest in May 1977 because he received a life 

sentence. He was not entitled to credit for time served on 

either of his assault convictions because he was already serving a sentence at the time of those convictions. Because he 

was serving a combined sentence of imprisonment for life plus 

13 to 42 years, he could not earn “good time” toward parole 

or discharge.

Initial Postconviction Proceeding 

and Resentencing.

On April 4, 2013, Schaeffer filed a verified motion for 

postconviction relief in the district court for Hall County alleging that his life sentence was void or voidable under the 8th 

or 14th Amendments to the U.S. Constitution as a result of 

the U.S. Supreme Court decision in Miller v. Alabama, 567 

U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). On 

February 24, 2016, the district court for Hall County entered an 

order granting postconviction relief and vacating Schaeffer’s 

life sentence.
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After a sentencing hearing, the district court for Hall County 

resentenced Schaeffer on his first degree murder conviction on 

January 3, 2017. Schaeffer was sentenced to 70 to 90 years’ 

imprisonment. The district court also stated that Schaeffer was 

entitled to credit for time served dating back to his May 26, 

1977, arrest. The district court concluded this amounted to 

14,472 days.

The district court provided a truth-in-sentencing advisement. 

The district court stated that on the new first degree murder 

sentence alone, Schaeffer would be parole eligible after 35 

years, assuming maximum good time, and his mandatory discharge date would be after 45 years, again assuming maximum 

good time. The district court went on to say:

“However, considering the additional sentences to be 

served out of Lancaster County with aggregate sentences 

of 13 to 42 years, under current good-time law, you will 

be parole eligible after 41.5 years[,] assuming maximum 

good time, less credit for time served, and your mandatory discharge date would be after 66 years, again assuming maximum good time, less credit for time served.”

Schaeffer filed a direct appeal, but later moved to dismiss it.

Dispute Regarding Schaeffer’s 

Parole Eligibility Date.

DCS determined that Schaeffer will not be eligible for 

parole until February 20, 2033. Schaeffer alleges that DCS 

applied 1975 Neb. Laws, L.B. 567, to calculate his parole eligibility date. L.B. 567 was the good time law in effect at the 

time of Schaeffer’s convictions. Schaeffer asserts that DCS 

should have calculated his parole eligibility date by applying 

the good time law in effect at the time of his resentencing, 

which he claims is 2011 Neb. Laws, L.B. 191. See Neb. Rev. 

Stat. § 83-1,107 (Cum. Supp. 2018). Schaeffer also alleges that 

the parole eligibility date determined by DCS conflicts with the 

truth-in-sentencing advisement provided by the district court 

for Hall County.
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Schaeffer filed another motion for postconviction relief in 

which he attempted to challenge DCS’ determination of his 

parole eligibility date. The district court denied relief, explaining that Schaeffer had not shown that his sentence was unconstitutional, but had only challenged postsentencing actions 

by DCS.

Schaeffer also filed various grievances with DCS in which 

he alleged that it had not correctly calculated his parole eligibility date. DCS’ responses to those grievances explained how 

DCS was calculating Schaeffer’s parole eligibility date and 

maintained it was doing so correctly.

Schaeffer alleged that there are other individuals in the custody of DCS who also had life sentences vacated under Miller, 

supra, but have had their parole eligibility dates calculated 

differently. Schaeffer identified nine inmates who were sentenced to life without parole but also had other term of years 

sentences for which no presentencing credit was awarded. He 

alleged that after these inmates were resentenced, they, unlike 

him, received “day-for-day” good time credit to determine 

their parole eligibility date. According to Schaeffer, if he 

would have received the same “day-for-day” credit for good 

time, he would have been eligible for parole as of November 

28, 2018.

§ 1983 Action.

Schaeffer made the foregoing allegations in a complaint 

filed against three DCS officials (collectively referred to 

as “DCS”) in the district court for Lancaster County under 

§ 1983. Schaeffer contended that by determining that his parole 

eligibility date was February 20, 2033, DCS violated his rights 

under various provisions of the U.S. Constitution. In particular, 

he alleged that DCS violated his right to be free from cruel 

and unusual punishment under the 8th Amendment, his right to 

due process of law under the 14th Amendment, and his right to 

equal protection under the 14th Amendment.

Schaeffer sought a declaration that DCS’ determination of 

his parole eligibility date violated the provisions of the U.S. 
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Constitution described above and an order enjoining DCS 

from enforcing their determination of his parole eligibility 

date. He also sought attorney fees under 42 U.S.C. § 1988 

(2012). Schaeffer did not seek a declaration of his parole eligibility date under state law.

DCS successfully moved to dismiss Schaeffer’s complaint. 

The district court concluded that Schaeffer’s action could not 

proceed under the U.S. Supreme Court’s decision in Wilkinson 

v. Dotson, 544 U.S. 74, 78, 125 S. Ct. 1242, 161 L. Ed. 2d 253 

(2005), which prohibits prisoners in state custody from using 

a § 1983 action to challenge “‘the fact or duration of [their] 

confinement.’” The district court concluded that Schaeffer was 

attacking the duration of his confinement by seeking an earlier 

parole eligibility date.

Schaeffer appeals the dismissal of his § 1983 action.

ASSIGNMENT OF ERROR

Schaeffer assigns that the district court erred by granting 

DCS’ motion to dismiss.

STANDARD OF REVIEW

[1,2] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party. Salem Grain Co. v. Consolidated 

Grain & Barge Co., 297 Neb. 682, 900 N.W.2d 909 (2017). To 

prevail against a motion to dismiss for failure to state a claim, 

a plaintiff must allege sufficient facts to state a claim to relief 

that is plausible on its face. Davis v. State, 297 Neb. 955, 902 

N.W.2d 165 (2017). In cases in which a plaintiff does not or 

cannot allege specific facts showing a necessary element, the 

factual allegations, taken as true, are nonetheless plausible if 

they suggest the existence of the element and raise a reasonable 

expectation that discovery will reveal evidence of the element 

or claim. Id.
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ANALYSIS

Exception to § 1983 for Suits Challenging 

Fact or Duration of Confinement.

[3,4] A civil remedy is provided under § 1983 for deprivations of federally protected rights, statutory or constitutional, 

caused by persons acting under color of state law. Waldron 

v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016). In order to 

assert a claim under § 1983, the plaintiff must allege that he or 

she has been deprived of a federal constitutional right and that 

such deprivation was committed by a person acting under color 

of state law. Id.

The district court found that Schaeffer’s claims could not be 

brought under § 1983, not because he failed to plausibly allege 

that he had been deprived of a federal constitutional right, but 

because he asserted such claims in order to challenge the fact 

or duration of his confinement. The district court concluded 

that the U.S. Supreme Court’s opinion in Wilkinson, supra, 

precluded claims that sought such relief from being asserted in 

a § 1983 action and thus dismissed Schaeffer’s complaint.

The parties’ initial briefs on appeal focused exclusively on 

whether Schaeffer sought to challenge the fact or duration of 

his confinement and thus whether the U.S. Supreme Court’s 

opinion in Wilkinson precluded Schaeffer from seeking such 

relief under § 1983. Schaeffer argued that because he was not 

seeking immediate release from custody in this action, he was 

not challenging the fact or duration of his confinement and 

Wilkinson permitted him to pursue his claims under § 1983. 

The State argued that Wilkinson did not permit a challenge 

to the calculation of an inmate’s parole eligibility date. After 

oral argument, we directed the parties to file supplemental 

briefs addressing whether Schaeffer adequately alleged a federal constitutional violation under any of the theories asserted 

in his complaint.

We determine that it is not necessary to decide whether 

Schaeffer’s action is an impermissible challenge to the fact 

or duration of his confinement under Wilkinson because, even 

assuming it is not, his complaint did not adequately allege 
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any violations of his federal constitutional rights and thus the 

district court did not err by dismissing his complaint for failure to state a claim. Before explaining our reasoning for this 

conclusion, we pause briefly to reject the assertion made in 

Schaeffer’s supplemental brief that we may not, under Weber v. 

Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009), consider 

whether he adequately alleged a violation of his constitutional 

rights in the absence of a cross-appeal from DCS.

Schaeffer invokes two propositions from Weber, but neither 

applies here. One is that an appellee’s argument that a lower 

court’s decision should be upheld on grounds specifically 

rejected below constitutes a request for affirmative relief, and 

the appellee must cross-appeal in order for that argument to be 

considered. That proposition has no application here because 

the district court did not specifically reject an argument that 

Schaeffer failed to adequately allege any federal constitutional 

violations; its order spoke only to its conclusion that Schaeffer 

was impermissibly challenging the fact or duration of his confinement under § 1983.

The other proposition Schaeffer invokes is that an appellate 

court will not consider an issue on appeal that was not presented to or passed upon by the trial court. That also does not 

apply here. Whether Schaeffer stated a claim upon which relief 

can be granted under § 1983 is the issue presented on appeal, 

and the district court “passed upon” that issue. Although the 

district court did not dismiss Schaeffer’s complaint by considering his alleged federal constitutional violations one by one, it 

did conclude that Schaeffer failed to state a claim upon which 

relief could be granted under § 1983. See Gonzalez v. Union 

Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011) (considering alternative grounds for affirming dismissal of complaint 

for failure to state claim).

Eighth Amendment.

We begin our analysis of Schaeffer’s individual alleged 

constitutional violations with his claim that DCS violated his 

Eighth Amendment right to be free from cruel and unusual 
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punishment when it determined that he would not be eligible 

for parole until February 20, 2033. In support of his argument 

that he has stated a plausible claim for relief under the Eighth 

Amendment, Schaeffer relies on Miller v. Alabama, 567 U.S. 

460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Schaeffer 

argues that Miller imposes an Eighth Amendment procedural 

requirement in cases in which a defendant was sentenced to 

life without parole for an offense committed before reaching 18 

years of age. In those cases, he contends, Miller requires that 

the sentencing court determine the date at which the defendant 

will become eligible for parole. And because he understands 

the district court for Hall County to have determined that he 

would be eligible for parole on November 28, 2018, Schaeffer 

contends DCS has violated his Eighth Amendment rights by 

concluding otherwise.

[5] Schaeffer is essentially arguing that the sentencing court’s 

truth-in-sentencing advisement must prevail over the terms of 

the pronounced sentence. This has been rejected as a matter of 

state law. We have held that the meaning of a sentence is, as a 

matter of law, determined by the contents of the sentence itself. 

State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). We have 

also held that the pronounced terms of imprisonment prevail 

over any conflicting truth-in-sentencing advisements. See id.

We do not understand Schaeffer to challenge these principles 

of state law generally, but to argue that Miller requires that 

they not be followed in this unique context.

We do not, however, understand Miller to stand for the 

proposition Schaeffer argues. In Miller, petitioners committed homicide offenses when 14 years of age and received life 

without the possibility of parole sentences as mandated by state 

law. The petitioners challenged their life without the possibility 

of parole sentences as violating the Eighth Amendment.

The U.S. Supreme Court observed that petitioners’ challenges implicated “precedent reflecting our concern with proportionate punishment.” Miller, 567 U.S. at 470. The Court 

noted that both its decision in Roper v. Simmons, 543 U.S. 
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551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), holding that the 

Eighth Amendment did not permit capital punishment for an 

offense committed by a juvenile, and its decision in Graham 

v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010), holding that the same constitutional provision prohibited a life without parole sentence for a nonhomicide offense 

committed by a juvenile, recognized that juveniles were different than adults in various ways relevant to sentencing. In 

particular, the Court noted its prior conclusions that, compared 

to adults, juveniles were not as mature, they were more susceptible to negative outside influences, and their character 

traits were less fixed. Although it recognized that its decisions 

in Roper and Graham did not directly address a mandatory 

life without parole sentence for a homicide, it concluded that 

such a sentence nonetheless violated the “foundational principle” recognized in those cases: that “imposition of a State’s 

most severe penalties on juvenile offenders cannot proceed as 

though they were not children.” Miller v. Alabama, 567 U.S. 

460, 474, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Based 

on this reasoning, the Court held in Miller that “the Eighth 

Amendment forbids a sentencing scheme that mandates life in 

prison without possibility of parole for juvenile offenders.” 567 

U.S. at 479.

Schaeffer’s Eighth Amendment claim is much different than 

the claims asserted by the petitioners in Miller. Unlike the petitioners in Miller, Schaeffer is not contending that his Eighth 

Amendment rights were violated because he was sentenced 

to a mandatory term of life without the possibility of parole. 

Schaeffer did successfully challenge his initial sentence for 

first degree murder on this basis, but he was resentenced and 

he does not allege that the district court did not follow Miller 

upon resentencing.

Rather than alleging that his sentence does not comply with 

the dictates of Miller, Schaeffer contends that DCS ran afoul 

of Miller when it calculated his parole eligibility date after 

resentencing. But contrary to Schaeffer’s assertion otherwise, 
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we see nothing in Miller holding that the Eighth Amendment 

requires that sentencing courts select the specific date on 

which a juvenile offender will be eligible for parole or that a 

sentencing court’s advisement to a defendant as to when he or 

she will be eligible for parole must be given controlling effect 

by executive officials. Miller held that mandatory life imprisonment without the possibility of parole sentences for juvenile 

offenders violate the Eighth Amendment; it does not speak 

to constitutional requirements regarding the calculation of a 

parole eligibility date.

Because the basis for his claim is not legally viable, we conclude Schaeffer has failed to state a plausible claim for relief 

under the Eighth Amendment.

Due Process.

Schaeffer also alleges that DCS violated his 14th Amendment 

right to due process of law when it determined that he would 

not be eligible for parole until February 20, 2033. We thus 

consider whether Schaeffer has stated a plausible due proc

ess claim.

The Due Process Clause of the federal Constitution has 

been interpreted to provide both procedural and substantive 

protections. See Davis v. State, 297 Neb. 955, 902 N.W.2d 165 

(2017). In its procedural sense, it polices the procedures under 

which the government seeks to deprive individuals of life, 

liberty, or property. See County of Sacramento v. Lewis, 523 

U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). In its 

substantive sense, it guards against the exercise of government 

power without adequate justification. See id.

[6] A plaintiff asserting the inadequacy of procedural due 

process must first establish that the government deprived 

him or her of interests which constitute “liberty” or “property” within the meaning of the Due Process Clause. Doe v. 

Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010), 

overruled on other grounds, Davis, supra. If the plaintiff can 

establish the deprivation of such an interest, the next question 

is whether the procedures followed by the government were 
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constitutionally adequate. See Swarthout v. Cooke, 562 U.S. 

216, 131 S. Ct. 859, 178 L. Ed. 2d 732 (2011).

In his supplemental brief, Schaeffer appears to argue that he 

has alleged a procedural due process violation. In that brief, 

he asserts that he is being deprived of a liberty interest and 

that the State was required to offer fair procedures to vindicate 

that interest. Schaeffer seems to argue that he has a liberty 

interest in having his parole date accurately calculated according to state law.

In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 

S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the U.S. Supreme Court 

rejected the argument that a liberty interest in parole arises 

whenever a state provides for the possibility of parole. The 

Court went on to hold, however, that state statutes may create 

liberty interests in parole release that are entitled to protection under the Due Process Clause. The Court concluded that 

the mandatory language of a Nebraska statute setting forth the 

circumstances under which an inmate was entitled to parole 

created an “expectancy of release” and that this was a liberty 

interest entitled to due process protection. Greenholtz, 442 U.S. 

at 12. The U.S. Supreme Court applied Greenholtz to reach 

essentially the same conclusion regarding Montana’s parole 

system in Board of Pardons v. Allen, 482 U.S. 369, 107 S. Ct. 

2415, 96 L. Ed. 2d 303 (1987).

While Greenholtz involved mandatory language in the statute governing the circumstances in which an inmate was 

entitled to an order of parole, Schaeffer argues that there is 

similarly mandatory statutory language governing when an 

inmate is eligible for parole. Here, Schaeffer points us to 

§ 83-1,107, as well as Neb. Rev. Stat. §§ 83-1,110 (Reissue 

2016) and 83-1,111 (Cum. Supp. 2018), and contends these 

statutes frame the duty to calculate a prisoner’s parole eligibility date in mandatory terms and thus must also create a liberty 

interest entitled to due process protection.

But even if we assume Schaeffer has demonstrated that 

Nebraska’s parole eligibility statutes create a liberty interest 

entitled to due process protection, it does not follow that he 
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has stated a procedural due process claim. As noted above, 

even if a protected liberty or property interest is established, 

to prevail on a procedural due process claim, a plaintiff must 

also show that the procedures followed by the government relative to that interest were constitutionally inadequate. See, e.g., 

Swarthout, supra. As we will explain, Schaeffer has not alleged 

facts suggesting constitutionally inadequate procedures.

The U.S. Supreme Court has held that even when, as in 

Greenholtz and Allen, a state statute creates a liberty interest in 

parole, the procedures required are minimal. In Greenholtz, the 

Court held that the prisoner received adequate process because 

he was allowed the opportunity to be heard and was provided 

a statement of reasons why parole was denied. The Court held 

that “[t]he Constitution does not require more.” Id., 442 U.S. 

at 16.

More recently, in Swarthout v. Cooke, 562 U.S. 216, 131 S. 

Ct. 859, 178 L. Ed. 2d 732 (2011), the U.S. Supreme Court 

reaffirmed that the procedures required when a state creates a 

liberty interest in the parole context are limited. In Swarthout, 

the Court reversed decisions of the U.S. Court of Appeals for 

the Ninth Circuit holding that prisoners in California state custody were entitled to federal habeas relief because they were 

denied parole in violation of their right to due process. The 

Court began its analysis by observing that even if California 

had created a liberty interest in parole, Greenholtz required 

only that the prisoners be given an opportunity to be heard and 

a statement of the reasons why parole was denied. Because the 

prisoners in Swarthout received this amount of process, that 

“should have been the beginning and the end” of the inquiry 

into whether they received due process. 562 U.S. at 220. The 

Ninth Circuit erred, the Court explained, by going on to review 

whether the decision by California state officials to deny parole 

was correct. As the Court put it, “[b]ecause the only federal 

right at issue is procedural, the relevant inquiry is what process 

[the prisoners] received, not whether the state court decided the 

case correctly.” Id., 562 U.S. at 222.
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When the reasoning of Greenholtz and Swarthout is applied 

to Schaeffer’s allegations, it becomes apparent that he has 

not adequately alleged that he did not receive procedural due 

process. Schaeffer’s complaint discloses that he had and took 

advantage of multiple opportunities to communicate with DCS 

as to his view of how his parole eligibility date ought to be 

calculated. It also discloses that DCS provided explanations 

for its contrary calculation of his parole eligibility date. Thus, 

even assuming that Schaeffer had a liberty interest concerning 

his parole eligibility date, his own complaint indicates that he 

was provided with the minimal process required.

It is not clear that Schaeffer is contending that he also stated 

a violation of substantive due process. His supplemental brief 

speaks only of fair procedures rather than the outcome of those 

procedures. Furthermore, we read the language in Swarthout 

that the “only federal right at issue is procedural” to, at the 

very least, cast doubt on whether there is a substantive due 

process right to a particular outcome in the parole context. 

562 U.S. at 222. But even if we assume such a right exists, 

Schaeffer has not stated a plausible claim that his right to substantive due process was violated.

[7,8] The due process protection in its substantive sense 

limits what the government may do in both its legislative and 

its executive capacities. Davis v. State, 297 Neb. 955, 902 

N.W.2d 165 (2017). But the criteria to identify what is fatally 

arbitrary differ depending on whether it is legislation or a 

specific act of a government officer that is at issue. Id. The 

substantive component of the Due Process Clause is violated 

by executive action only when it can properly be characterized 

as arbitrary, or conscience shocking, in a constitutional sense. 

Id. A litigant seeking to establish that a government action is 

arbitrary or conscience shocking in the constitutional sense 

faces a high bar. See, e.g., Buckley v. Ray, 848 F.3d 855 (8th 

Cir. 2017).

We do not believe Schaeffer has alleged any facts that 

meet the high bar of conscience-shocking government action. 

At bottom, Schaeffer’s complaint in this action is that DCS 
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improperly calculated his parole eligibility date under state 

law. It is well accepted, however, that a mere violation of 

state law, without more, does not rise to the level of conscience 

shocking. See, e.g., Draper v. City of Festus, Mo., 782 F.3d 948 

(8th Cir. 2015); Doe ex rel. Magee v. Covington County School 

Dist., 675 F.3d 849 (5th Cir. 2012); J.R. v. Gloria, 593 F.3d 73 

(1st Cir. 2010).

Equal Protection.

This leaves only Schaeffer’s claim that DCS has violated 

his right to equal protection under the 14th Amendment to 

the federal Constitution. In analyzing this claim, we must 

note at the outset that Schaeffer’s claim is unlike most equal 

protection claims. In most equal protection claims, a plaintiff 

alleges that some state action unlawfully discriminates between 

classes or groups of people. So, to note just a few examples, 

a plaintiff might claim that the government is committing an 

equal protection violation by treating people below a certain 

age differently than those above a certain age, see, e.g., State 

v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019); by treating 

males differently than females, see, e.g., Friehe v. Schaad, 249 

Neb. 825, 545 N.W.2d 740 (1996); or by treating people with 

one color of skin differently than those with another, see, e.g., 

Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 

L. Ed. 373 (1954). Some courts have referred to such claims 

as a “traditional, class-based” equal protection claim. See, e.g., 

Davis v. Prison Health Services., 679 F.3d 433, 442 (6th Cir. 

2012). Accord Flowers v. City of Minneapolis, Minn., 558 F.3d 

794 (8th Cir. 2009).

Schaeffer, on the other hand, is not claiming that the government is unlawfully treating him differently than others 

based on his belonging to any group or because he shares 

some trait or characteristic held by others. He is instead 

alleging that in calculating his parole eligibility date, DCS is 

singling out him and him alone for unfair treatment, specifically by calculating his parole eligibility date differently than 

it has for other individuals in Nebraska who were ordered 
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to be resentenced based on Miller v. Alabama, 567 U.S. 460, 

132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). This, Schaeffer 

contends, is sufficient to proceed under a “class-of-one” equal 

protection theory as recognized by the U.S. Supreme Court 

in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 

1073, 145 L. Ed. 2d 1060 (2000). Supplemental brief for 

appellant at 17.

In Olech, a property owner alleged that the municipality in 

which she lived conditioned connecting its water supply to her 

property on granting the municipality a 33-foot easement. The 

property owner alleged that the municipality had required only 

a 15-foot easement from other property owners. The property 

owner sued, alleging that the 33-foot easement demand was 

“‘irrational and wholly arbitrary’” and “motivated by ill will” 

as a result of the property owner’s previous filing of an unrelated, successful lawsuit against the municipality. Id., 528 U.S. 

at 563. The case eventually reached the U.S. Supreme Court, 

which noted that it had in the past “recognized successful 

equal protection claims brought by a ‘class-of-one,’ where the 

plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational 

basis for the difference in treatment.” Id., 528 U.S. at 564. 

The Court found that the complaint in Olech stated a claim 

for relief under this theory, concluding that it alleged that the 

municipality intentionally treated her differently than similarly 

situated property owners and that this difference in treatment 

was “‘irrational and wholly arbitrary.’” Id., 528 U.S. at 565. 

Olech thus recognizes that, at least in some circumstances, a 

plaintiff may pursue an equal protection claim without alleging 

mistreatment based on membership in a class or group. But see 

Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 128 S. 

Ct. 2146, 170 L. Ed. 2d 975 (2008) (holding that class-of-one 

equal protection claim is not cognizable in context of public employment).

While post-Olech courts have reached somewhat different 

conclusions about what exactly a plaintiff must prove in order 

to prevail on a class-of-one theory, a subject we will return 
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to in a moment, there is a consensus that certain elements are 

required. There is widespread agreement that a class-of-one 

plaintiff must at least show (1) the defendant treated him or 

her differently from others similarly situated, (2) the defendant 

did so intentionally, and (3) there was no rational basis for the 

difference in treatment. See, e.g., Madar v. U.S. Citizenship 

and Immigration Services, 918 F.3d 120 (3d Cir. 2019). See, 

also, Zell v. Ricci, 957 F.3d 1 (1st Cir. 2020); Crain v. City of 

Selma, 952 F.3d 634 (5th Cir. 2020); Johnson v. Morales, 946 

F.3d 911 (6th Cir. 2020); Mensie v. City of Little Rock, 917 

F.3d 685 (8th Cir. 2019); King v. Rubenstein, 825 F.3d 206 (4th 

Cir. 2016). We agree with these courts that, at the very least, 

Olech requires a class-of-one plaintiff to show these three elements. In doing so, we acknowledge that some have criticized 

a threshold similarly situated requirement in the context of 

traditional class-based equal protection claims. See State v. 

Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019) (Stacy, J., concurring). In the class-of-one context, however, such a requirement appears to be mandated by Olech.

Before turning to Schaeffer’s allegations, we must elaborate on one of the required elements in a class-of-one equal 

protection claim—the requirement that the alleged discriminatory treatment was done intentionally. To say that an act must 

have been done “intentionally” could mean different things. 

In some legal contexts, an act is intentional if it is done with 

volition or with awareness of consequences. See, e.g., Keith 

N. Hylton, Intent in Tort Law, 44 Val. U.L. Rev. 1217 (2010). 

In the equal protection context, however, intent has a different meaning. In Personnel Administrator of Mass. v. Feeney, 

442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979), 

the U.S. Supreme Court held in an equal protection case that 

discriminatory intent requires “more than intent as volition or 

intent as awareness of consequences. . . . It implies that the 

decisionmaker . . . selected or reaffirmed a particular course of 

action at least in part ‘because of,’ not merely ‘in spite of,’ its 

adverse effects upon an identifiable group.”
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A number of courts have concluded that a plaintiff proceeding under a class-of-one equal protection theory must also 

show intentional discrimination in the sense that concept was 

understood in Feeney. For example, in SECSYS, LLC v. Vigil, 

666 F.3d 678 (10th Cir. 2012), then-Judge Gorsuch authored 

an opinion in a case before the U.S. Court of Appeals for the 

10th Circuit, explaining that summary judgment was appropriate on the plaintiff’s class-of-one claim because it could 

not prove that the defendants acted with discriminatory intent 

in the Feeney sense of that phrase. Other courts have also 

concluded that the Feeney definition of discriminatory intent 

applies in class-of-one claims. See, e.g., Integrity Collision 

Center v. City of Fulshear, 837 F.3d 581, 589 (5th Cir. 2016) 

(holding in class-of-one case that plaintiff must show discriminatory intent, i.e., that decision at issue was made “at least in 

part because of its discriminatory effect on [plaintiffs] rather 

than mere knowledge that adverse consequences will result”); 

Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d 1124, 

1127 (7th Cir. 2004) (citing Feeney, supra, and explaining 

that defendants must have intentionally treated plaintiff worse 

“in the sense of wanting her to be made worse off than others”); Greco v. Senchak, 25 F. Supp. 3d 512, 519 (M.D. Pa. 

2014) (holding that in order for class-of-one plaintiff to prove 

intentional discrimination, it must be shown that “‘the decisionmaker selected or reaffirmed a particular course of action 

at least in part because of, not merely in spite of, its adverse 

effects’”); Pariseau v. City of Brockton, 135 F. Supp. 2d 257 

(D. Mass. 2001) (same).

We agree that to prove the intentional discrimination element of a class-of-one claim, a plaintiff must prove discriminatory intent in the same manner that it must be proved in 

traditional class-based claims, i.e., that the defendant selected 

or reaffirmed a particular course of action because of its 

adverse effect and not merely with knowledge that effect 

would occur. This, of course, requires a slight modification 

in class-of-one claims. Because such claims do not allege that 

the defendant took action because of the plaintiff’s affiliation 
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with a particular class or group, the plaintiff must show that 

the defendant treated the plaintiff as it did because of who 

the plaintiff is. See SECSYS, LLC, supra; William D. Araiza, 

Flunking the Class-of-One/Failing Equal Protection, 55 Wm. 

& Mary L. Rev. 435, 455 (2013) (“[p]roperly harmonizing the 

‘“because of”, not merely “in spite of ”’ formula [in] classof-one claims should therefore require that the official have 

singled out the plaintiff because of who the plaintiff is—that is, 

because of her identity”) (emphasis omitted).

We reach this conclusion for multiple reasons. First, applying the same standard as used in traditional class-based 

equal protection claims is consistent with the U.S. Supreme 

Court’s observation that the “class-of-one theory [is] not so 

much a departure from” as it is “an application of” traditional 

equal protection principles. Engquist v. Oregon Dept. of 

Agriculture, 553 U.S. 591, 602, 128 S. Ct. 2146, 170 L. Ed. 

2d 975 (2008).

Further, this understanding of the intentional discrimination requirement prevents the class-of-one theory from making 

the reasonableness of nearly all governmental decisions at all 

levels potential matters of federal equal protection law. Ever 

since the U.S. Supreme Court decided Village of Willowbrook 

v. Olech, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 

1060 (2000), many courts have expressed concerns about the 

potential scope of the class-of-one theory. As one court put 

it, “unless carefully circumscribed, the concept of a class-ofone equal protection claim could effectively provide a federal 

cause of action for review of almost every executive and 

administrative decision made by state actors.” Jennings v. City 

of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir. 2004). In a 

concurring opinion, Judge Posner of the U.S. Court of Appeals 

for the Seventh Circuit illustrated the concern regarding the 

scope of the class-of-one theory by asking whether it would 

require federal courts to review whether police officers acted 

rationally if they, as part of random enforcement efforts, ticketed one driver for speeding when another driver going slightly 

faster on the same spot of highway moments earlier was not 
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pulled over. See Bell v. Duperrault, 367 F.3d 703 (7th Cir. 

2004) (Posner, J., concurring).

As explained in SECSYS, LLC v. Vigil, 666 F.3d 678 (10th 

Cir. 2012), however, a requirement that a class-of-one plaintiff 

show discriminatory intent addresses this concern. Referring 

to Judge Posner’s highway speeders hypothetical, then-Judge 

Gorsuch explained that the requirement that the plaintiff 

prove the defendant took the action because it would have 

an adverse effect on the plaintiff forecloses any class-of-one 

claim because the hypothetical police officer is not ticketing 

the driver “because of who [the driver] is.” Id., 666 F.3d at 690 

(emphasis in original).

We recognize that some courts have held that a successful class-of-one claim requires proof that the defendant was 

motivated by “animus” toward the plaintiff. See, e.g., Hilton 

v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000);

Patterson v. American Fork City, 67 P.3d 466 (Utah 2003). 

See, also, 1 Ivan E. Bodensteiner & Rosalie Berger Levinson, 

State & Local Government Civil Rights Liability § 1:15 at 

1-1124 n.116 (2020) (collecting cases). Others point out that 

a defendant could act with discriminatory intent without harboring a vindictive motive. See, e.g., SECSYS, LLC, supra. 

While it seems unquestionable that a plaintiff could establish 

discriminatory intent by proving that the defendant was motivated by animus toward the plaintiff, it is not necessary for 

us to decide in this case whether discriminatory intent must

be shown by proof of animus because, as we will explain, 

Schaeffer’s complaint fails to allege that DCS acted with any 

discriminatory intent.

Schaeffer’s complaint does allege that DCS “intentionally” 

treated him differently than similarly situated inmates when 

it calculated his parole eligibility date. This conclusory assertion, however, is nothing more than a “threadbare recital[] 

of the elements of a cause of action,” which is not entitled 

to be accepted as true for purposes of a motion to dismiss. 

See Holloway v. State, 293 Neb. 12, 27, 875 N.W.2d 435, 

448 (2016).
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Conclusory assertions aside, Schaeffer does not allege anything suggesting that DCS calculated his parole eligibility 

date with discriminatory intent. Schaeffer’s complaint certainly 

alleges facts suggesting that DCS acted intentionally in the 

sense that its officials acted with volition and an awareness of 

consequences when it calculated Schaeffer’s parole eligibility date. There are no factual allegations, however, suggesting 

that DCS calculated Schaeffer’s parole eligibility date as it did 

because doing so would be adverse to Schaeffer or because

it wanted to single out Schaeffer for unequal treatment. No 

reason is offered, for example, for why DCS would allegedly treat Schaeffer differently than others similarly situated. 

Neither is anything alleged suggesting that DCS would have 

calculated the parole eligibility date differently if someone else 

were in Schaeffer’s shoes. See, SECSYS, LLC, 666 F.3d at 690 

(explaining that to prove discriminatory intent, plaintiff must 

show defendant took action at issue “because of who [plaintiff] 

is”) (emphasis in original); William D. Araiza, Flunking the 

Class-of-One/Failing Equal Protection, 55 Wm. & Mary L. 

Rev. 435 (2013).

For some courts, the absence of any allegations in a complaint suggesting that the defendants acted with discriminatory 

intent would alone be enough to conclude that the plaintiff 

failed to state a claim on a class-of-one equal protection theory. 

See, e.g., Greco v. Senchak, 25 F. Supp. 3d 512 (M.D. Pa. 

2014); Pariseau v. City of Brockton, 135 F. Supp. 2d 257 (D. 

Mass. 2001); Patterson v. American Fork City, supra; Lakeside 

Builders, Inc. v. Planning Bd. of Town of Franklin, 2002 WL 

31655250 (D. Mass. Mar. 21, 2002). Not only, however, has 

Schaeffer failed to plead facts suggesting that the defendants 

acted with discriminatory intent, the facts he has pleaded suggest they did not. This will require some elaboration, which we 

provide below.

As part of his attempt to allege an equal protection violation under a class-of-one theory, Schaeffer identifies nine 

other individuals he claims are similarly situated to him but 

who had their parole eligibility dates calculated differently. 
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Schaeffer alleges that the nine identified individuals are similarly situated because each of them, like him, received a life 

sentence from a Nebraska court which was later vacated under 

Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. 

Ed. 2d 407 (2012), and each of them, like him, also received 

a sentence for other crimes prior to being resentenced as 

required by Miller.

Upon closer scrutiny, however, it becomes clear that 

Schaeffer’s circumstances are more similar to some of his proposed comparators than others. Schaeffer alleges that Douglas 

Mantich, Christopher Garza, Johnny Ray, Jason Golka, Rodney 

Stewart, and Brian D. Smith were sentenced for other crimes 

at the time they were sentenced to imprisonment for life. 

Schaeffer, on the other hand, received his term of years sentences for assault in other proceedings in another district court 

years after he received his life sentence. In addition to this 

difference, the term of years sentences of Golka, Smith, and 

Luigi Grayer were initially ordered to be served concurrently 

to their life sentences, while Schaeffer’s were ordered to be 

served consecutively. Further, Schaeffer alleges that when both 

Stewart and Grayer were resentenced, the sentencing court 

ordered their new post-Miller sentence to run concurrently to 

their earlier term of years sentences, but he makes no such 

allegation about his own resentencing.

Schaeffer’s circumstances more closely mirror two of his 

other proposed comparators, Ahmad Jackson and Justeen 

Williams. He alleges that they, like him, received a life sentence for a murder conviction and then later were convicted of 

other crimes and received term of years sentences that were 

ordered to be served consecutively to their life sentences. And, 

as it turns out, the two proposed comparators Schaeffer identifies as having their parole eligibility dates calculated under a 

good time law other than L.B. 191 are Jackson and Williams. 

Schaeffer alleges that DCS used 1997 Neb. Laws, L.B. 364, 

and 1992 Neb. Laws, L.B. 816, respectively, to calculate the 

parole eligibility dates of Jackson and Williams. According to 

Schaeffer’s allegations, DCS used the good time law in effect 
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at the time of Jackson’s subsequent term of years sentence in 

2004, L.B. 364, to calculate his parole eligibility date, just as 

it used the good time law in effect at the time of Schaeffer’s 

term of years sentences for assault, L.B. 567, to calculate his 

parole eligibility date. While Schaeffer alleges DCS used L.B. 

816 to calculate Williams’ parole eligibility date, his complaint 

fails to allege when Williams was sentenced for assault on a 

confined person.

DCS’ use of good time laws other than L.B. 191 to calculate 

the parole eligibility dates of Schaeffer, Jackson, and Williams 

indicates that it is not using L.B. 567 to calculate Schaeffer’s 

parole eligibility date because of who Schaeffer is or because it 

wishes to single him out for unequal treatment. Rather, it suggests that DCS believes that inmates like Schaeffer, Jackson, 

and Williams, who after receiving a life sentence received a 

term of years sentence ordered to be served consecutively to 

the life sentence, are to have their parole eligibility date calculated using the good time law in effect at the time of their term 

of years sentence.

Schaeffer, as we have noted, contends that DCS’ understanding of how parole eligibility is to be calculated under 

state law is incorrect. But even if Schaeffer is right about that, 

it does not follow that he has alleged an equal protection violation. See Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 

88 L. Ed. 497 (1944) (“not every denial of a right conferred 

by state law involves a denial of the equal protection of the 

laws”). In fact, in this context, if DCS is acting pursuant to 

an understanding of what state law requires, even if mistaken, 

that undermines rather than supports the notion that it is acting with the requisite discriminatory intent. See Hu v. City of 

New York, 927 F.3d 81, 94 (2d Cir. 2019) (requiring plaintiff 

alleging class-of-one equal protection claim to “‘exclude the 

possibility that the defendant acted on the basis of a mistake’”). Because we conclude that Schaeffer has not alleged 

facts suggesting that DCS acted with discriminatory intent, we 

find that he has failed to plead a plausible class-of-one equal 

protection claim.
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Returning briefly to the subject of state law, we note in 

closing that we have not determined whether DCS has correctly calculated Schaeffer’s parole eligibility date under state 

law. At oral argument, Schaeffer’s counsel made clear that his 

complaint did not seek a determination as to the correct calculation of Schaeffer’s parole eligibility date under state law. 

And we have been able to determine that Schaeffer has failed 

to adequately allege any federal constitutional claims without 

deciding that issue.

CONCLUSION

Because we find that Schaeffer has failed to adequately 

allege that DCS violated his federal constitutional rights in any 

respect, we find that the district court did not err in dismissing 

his complaint for failure to state a claim and thus affirm.

Affirmed.

Freudenberg, J., not participating.