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Johnnie W. Davis, appellant, v. 

State of Nebraska et al., appellees.

___ N.W.2d ___

Filed October 6, 2017. No. S-16-355.

1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court 

reviews a district court’s order granting a motion to dismiss de novo, 

accepting all 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. Appeal and Error. An appellate court independently reviews questions 

of law decided by a lower court.

4. Constitutional Law. The determination of constitutional requirements 

presents a question of law.

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

6. Tort Claims Act. Whether a plaintiff’s allegations present a claim that 

is barred by an exception to the State’s waiver of tort immunity in a tort 

claims act presents a question of law.

7. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8,209 

(Reissue 2014) bars tort claims against the State, its agencies, and its 

employees unless the State has waived its immunity for the claim.

8. Statutes. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together.

9. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8,215 

(Reissue 2014), when read in pari materia with Neb. Rev. Stat. 

§ 81-8,209 (Reissue 2014), operates as a limited waiver of the State’s 

tort immunity, subject to specified exceptions that are set out in Neb. 

Rev. Stat. § 81-8,219 (2014).

Nebraska Supreme Court Online Library

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

10/20/2017 01:11 AM CDT
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10. Tort Claims Act: Public Officers and Employees: Immunity: Waiver. 

The exceptions to the waiver of the State’s tort immunity include claims 

based on the exercise or performance of a discretionary function by a 

state officer or employee.

11. ____: ____: ____: ____. Under Neb. Rev. Stat. § 81-8,210 (Reissue 

2014), whether a plaintiff has sued a state officer or employee in his 

or her individual capacity is irrelevant to whether the State Tort Claims 

Act bars a tort claim against that officer or employee. If an officer or 

employee was acting within the scope of his or her office or employment and the alleged tortious conduct falls within an exception to the 

State’s waiver of tort immunity, the State Tort Claims Act bars a tort 

claim against the officer or employee, regardless of the capacity in 

which he or she was purportedly sued.

12. Jurisdiction: Appeal and Error. An appellate court has an independent 

duty to decide jurisdictional issues on appeal, even if the parties have 

not raised the issue.

13. ____: ____. When a trial court lacks the power, that is, jurisdiction, to 

adjudicate the merits of a claim, an appellate court also lacks the power 

to adjudicate the merits of the claim.

14. Actions: Jurisdiction: Immunity. A trial court lacks subject matter 

jurisdiction over an action against the State unless the State has consented to suit.

15. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

16. Courts: Appeal and Error. The doctrine of stare decisis requires that 

appellate courts adhere to their previous decisions unless the reasons 

therefor have ceased to exist, are clearly erroneous, or are manifestly 

wrong and mischievous or unless more harm than good will result from 

doing so.

17. ____: ____. The doctrine of stare decisis is entitled to great weight, 

but it does not require an appellate court to blindly perpetuate a prior 

interpretation of the law if it concludes that prior interpretation was 

clearly incorrect.

18. Tort Claims Act: Immunity: Waiver: Appeal and Error. An exception to the State’s waiver of immunity under the State Tort Claims Act 

is an issue that the State may raise for the first time on appeal and that 

a court may consider sua sponte.

19. Tort Claims Act: Appeal and Error. An appellate court has the power 

to determine whether a plaintiff’s allegations, taken as true, show that a 

tort claim is facially barred by an STCA exception under Neb. Rev. Stat. 

§ 81-8,219 (Reissue 2014).

20. False Imprisonment: Words and Phrases. False imprisonment is 

the unlawful restraint of a person’s liberty against his or her will. Any 
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intentional conduct that results in the placing of a person in a position 

where he or she cannot exercise his or her will in going where he or she 

may lawfully go may constitute false imprisonment.

21. Judgments: Appeal and Error. An appellate court may affirm a lower 

court’s ruling that reaches the correct result, albeit based on different reasoning.

22. Constitutional Law: Civil Rights: Immunity. States or governmental entities that are considered arms of the State for 11th Amendment 

purposes are not “persons” that can be sued under 42 U.S.C. § 1983 

(2012).

23. ____: ____: ____. Whether a state entity is an arm of the State and 

entitled to share its 11th Amendment immunity is a question of federal law.

24. Judgments: Civil Rights: Immunity. Whether a money judgment 

against a state entity would be enforceable against the State is the 

critical consideration under 42 U.S.C. § 1983 (2012) for determining 

whether the entity is an arm of the State and therefore immune from suit 

by private persons.

25. Actions: Immunity. A suit against a state agency is a suit against the 

State, and both the State and state agencies can assert the State’s sovereign immunity against suit.

26. Constitutional Law: Judgments: Probation and Parole: Civil Rights: 

Immunity. Because any judgment against the Board of Parole would 

be a judgment against the State, it is cloaked with the State’s 11th 

Amendment immunity and cannot be named as a defendant in an action 

brought under 42 U.S.C. § 1983 (2012).

27. Actions: Public Officers and Employees: Civil Rights: Liability. A 

state official sued in his or her official capacity is not a person who can 

be sued under an action brought under 42 U.S.C. § 1983 (2012), unless 

the plaintiff seeks only prospective relief.

28. Actions: Parties: Public Officers and Employees: Liability: 

Damages. When a plaintiff seeks money damages against a state officer 

or employee in his or her official capacity, the State is the real party in 

interest, because the officer’s liability in that capacity is liability for the 

state entity that the officer represents.

29. Actions: Public Officers and Employees: Civil Rights: Immunity: 

Damages. Under 42 U.S.C. § 1983 (2012), the State’s sovereign immunity does not bar a claim for damages against state officials and employees who are sued in their personal capacities.

30. Actions: Public Officers and Employees: Civil Rights: Liability. To 

establish personal liability in an action brought under 42 U.S.C. § 1983 

(2012), it is enough to show that the official, acting under color of state 

law, caused the deprivation of a federal right.
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31. ____: ____: ____: ____. Acting under the color of state law does not 

mean that a state official or employee must have been complying with 

state law. Under 42 U.S.C. § 1983 (2012), liability exists as long as the 

action was taken within the scope of the defendant’s official authority, 

even if the official or employee abused his or her authority.

32. Actions: Public Officers and Employees: Immunity. State officials 

sued in their personal capacities, unlike those sued in their official 

capacities, may assert personal immunity defenses such as objectively 

reasonable reliance on existing law.

33. Constitutional Law: Due Process. The Due Process Clause of the federal Constitution provides both procedural and substantive protections.

34. Constitutional Law: Probation and Parole. Parolees have a valuable 

liberty interest in their continued parole even though it depends upon 

their compliance with parole conditions. Parole is therefore protected by 

the 14th Amendment and requires at least minimal procedural protections before a State can terminate it.

35. Due Process. The touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in 

a denial of fundamental procedural fairness or in the exercise of power 

without any reasonable justification in the service of a legitimate governmental objective.

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

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

what is fatally arbitrary differ depending on whether it is legislation or a 

specific act of a governmental officer that is at issue.

37. ____: ____. Only the most egregious official conduct can be said to be 

arbitrary in the constitutional sense. 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.

38. Due Process: Negligence: Liability. Liability for negligently inflicted 

harm is categorically beneath the threshold of constitutional due 

process.

39. Arrests. Normally, when a State holds an individual in custody, the 

requisite level of conscience-shocking conduct is deliberate indifference, 

subject to the caveat that the standard is sensibly employed only when 

actual deliberation is practical.

40. Constitutional Law: Arrests. A plaintiff states a cognizable constitutional violation under the 8th or 14th Amendment when the plaintiff 

alleges that a state defendant—who had knowledge of the plaintiff’s 

complaint that he or she was being unlawfully detained and the authority to investigate that complaint—was deliberately indifferent to the 
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plaintiff’s liberty interest and the defendant’s failure to take action 

resulted in the plaintiff’s continued unlawful detention for more than 

an insignificant period.

41. Public Officers and Employees: Immunity: Damages: Words and 

Phrases. Public officials performing a quasi-judicial function have 

absolute immunity from damages for acts they commit within the scope 

of that function. A quasi-judicial function refers to one that is closely 

related to the judicial process.

42. Public Officers and Employees: Immunity: Liability. In determining 

whether to grant quasi-judicial immunity, courts examine the nature of 

the functions with which a particular official or class of officials has 

been lawfully entrusted to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of 

those functions.

43. Probation and Parole. The Board of Parole’s mere reliance on evidence 

presented to it does not change the nature of its function of exercising 

independent discretion whether to grant, deny, or revoke parole.

44. Public Officers and Employees: Civil Rights: Immunity: Pleadings. 

Most executive officials and employees are limited to asserting qualified 

immunity as an affirmative defense against a personal capacity claim 

under 42 U.S.C. § 1983 (2012).

45. Constitutional Law: Public Officers and Employees: Immunity: 

Damages: Proof. Qualified immunity shields state officials from money 

damages unless a plaintiff alleges facts that would, if proved, show (1) 

the official violated a federally guaranteed right and (2) the constitutional or statutory right was clearly established at the time of the challenged conduct.

46. Actions: Immunity. Because qualified immunity is immunity from suit, 

a trial court should try to resolve immunity questions at the earliest possible stage in litigation.

47. Actions: Public Officers and Employees: Immunity: Liability. 

Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on 

the objective legal reasonableness of the action, assessed in light of the 

legal rules that were clearly established at the time it was taken.

48. Constitutional Law: Public Officers and Employees. Whether a federal right is clearly established presents a question of law. A court must 

consider whether the law is clearly established as it relates to the particular facts of a case. The unlawfulness of a defendant’s conduct must be 

obvious or apparent in the light of preexisting law. That is, the contours 

of the right must be sufficiently clear that a reasonable official would 

understand that his or her conduct violates that right.
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49. ____: ____. To show a clearly established federal right, the U.S. 

Supreme Court does not require a case to be directly on point, but existing precedent must have placed the statutory or constitutional question 

beyond debate.

50. ____: ____. A federal right can be established by a robust consensus of 

cases of persuasive authority.

51. Public Officers and Employees: Negligence: Immunity. Showing 

that a state defendant was negligent is insufficient to defeat a qualified immunity defense. Qualified immunity gives government officials 

breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate 

the law.

52. Actions: Civil Rights: Liability. Vicarious liability is unavailable in an 

action brought under 42 U.S.C. § 1983 (2012).

Appeal from the District Court for Lancaster County: Lori

A. Maret, Judge. Affirmed.

Charles E. Wilbrand and Jeanelle R. Lust, of Knudsen, 

Berkheimer, Richardson & Endacott, L.L.P., for appellant.

Douglas J. Peterson, Attorney General, Bijan Koohmaraie, 

and David A. Lopez for appellees.

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

Kelch, and Funke, JJ.

Funke, J.

I. NATURE OF CASE

Johnnie W. Davis appeals from the district court’s order that 

dismissed his negligence claim under the State Tort Claims 

Act (STCA)1 and his due process and Eighth Amendment 

claims under 42 U.S.C. § 1983 (2012). Davis alleged that 

state officials and employees of the Nebraska Board of Parole 

(Parole Board) and the Department of Correctional Services 

(Department) were liable for mistakenly concluding that he 

was subject to a mandatory minimum sentence for a 1995 

1 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).
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habitual criminal conviction. Because of this mistake, the 

Parole Board revoked his parole and reincarcerated him for 

nearly 2 months before releasing him on parole again. The district court concluded that all of Davis’ claims were barred by 

sovereign immunity, qualified immunity, or pleading deficiencies, and dismissed his complaint against all defendants.

We overrule Nebraska cases holding that an exception to 

the State’s waiver of immunity for tort claims under the STCA 

is an affirmative defense that the State must plead and prove. 

Because the exceptions are jurisdictional in nature, we hold 

that a court can consider an STCA exception sua sponte and for 

the first time on appeal. Here, we conclude that the exception 

for claims of false imprisonment applies, which exception bars 

Davis’ tort claim under the doctrine of sovereign immunity. 

We further conclude that the court did not err in ruling that the 

defendants were shielded from Davis’ § 1983 action by absolute or qualified immunity.

II. BACKGROUND

We glean the historical facts leading up to this action from 

the allegations in Davis’ complaint.2

1. Davis’ Arrest, Pleas, and Sentencing

On May 10, 1995, Davis was charged with 11 different 

crimes and was alleged to be a habitual offender. In January 

1996, under a plea agreement, Davis pled no contest to count I, 

attempted murder in the second degree, and count II, use of 

a deadly weapon to commit a felony. The State dismissed the 

remaining charges. In March, the court determined that Davis 

was a habitual offender and sentenced him to a term of 20 

to 30 years’ imprisonment for count I and a term of 10 to 

20 years’ imprisonment for count II, with the terms to be 

served consecutively.

2 See Jacob v. Nebraska Dept. of Corr. Servs., 294 Neb. 735, 884 N.W.2d 

687 (2016).
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2. Changes to Habitual Criminal Sentencing

Before June 1995, the habitual criminal statute3 provided 

the following:

Whoever has been twice convicted of a crime, sentenced, 

and committed to prison . . . for terms of not less than one 

year each shall, upon conviction of a felony committed in 

this state, be deemed to be an habitual criminal and shall 

be punished by imprisonment . . . for a term of not less 

than ten nor more than sixty years . . . .4

In June 1995, the Legislature amended § 29-2221 to provide a mandatory minimum sentence for habitual criminal 

convictions:

Whoever has been twice convicted of a crime, sentenced, 

and committed to prison . . . for terms of not less than one 

year each shall, upon conviction of a felony committed in 

this state, be deemed to be an habitual criminal and shall 

be punished by imprisonment . . . for a mandatory minimum term of ten years and a maximum term of not more 

than sixty years . . . .5

Other mandatory minimums apply if a defendant has been convicted of felonies not at issue here.6

 This amendment became 

effective in September 1995,7 after Davis committed his crimes 

but before he entered his pleas and was sentenced.

Mandatory minimum sentences carry two consequences that 

a minimum term sentence comprising the same number of 

years does not. First, a “person convicted of a felony for which 

a mandatory minimum sentence is prescribed shall not be 

eligible for probation.”8 Second, the offender cannot become 

3 See Neb. Rev. Stat. § 29-2221 (Reissue 2016).

4 See § 29-2221(1) (Cum. Supp. 1994).

5 See, 1995 Neb. Laws, L.B. 371, § 13 (emphasis supplied), codified at 

§ 29-2221(1) (Reissue 1995).

6 See id.

7 See id., § 32.

8 See Neb. Rev. Stat. § 28-105(4) (Reissue 2016).
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eligible for parole until the mandatory minimum is served in 

full; good time credits can be applied to the maximum term 

of an indeterminate sentence only after the offender serves the 

mandatory minimum.9

3. Davis’ Release and Reincarceration

In 2012, Davis was paroled. In 2014, the Department 

obtained warrants to arrest released prisoners for whom it had 

miscalculated their release dates. Davis’ name was not on that 

list. But an unknown person later added his name to this list, 

and a warrant was issued for his arrest. In June, Davis was 

informed by his parole officer that he needed to turn himself 

in because his parole eligibility date had been miscalculated. 

Davis had not violated his parole, and he was employed. 

Before turning himself in to the Department on June 25, he 

informed the Department and his parole officer that the mandatory minimum provision did not apply to him and that his 

parole eligibility date was correct. Neither the Department nor 

the Parole Board investigated his claim.

At a parole hearing on July 29, 2014, the Parole Board 

revoked his parole despite his continued claim that he was not 

subject to the mandatory minimum amendment. On August 22, 

Davis was released again and given a certificate of parole. Six 

months after filing a “State Torts Claim” with the State’s risk 

management division, Davis filed this action.

4. Davis’ Claims

Davis named 16 defendants in his complaint: the State; 

the Department; the Attorney General’s office; the Parole 

Board; the former governor; the former Attorney General; the 

Department’s former director, former records administrator, 

former general counsel, and two of its former attorneys; the 

Parole Board’s former and current chairpersons, its former vice 

9 See, Neb. Rev. Stat. § 83-1,110 (Reissue 2014); Caton v. State, 291 

Neb. 939, 869 N.W.2d 911 (2015); Johnson v. Kenney, 265 Neb. 47, 654 

N.W.2d 191 (2002).
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chairperson, and a current and former member. He sued all 

of the state officers and employees in their official and individual capacities.

For Davis’ negligence claim under the STCA, he alleged 

that all the state defendants owed him a duty not to violate 

his civil rights and not to reincarcerate him or cause his reincarceration unless he had violated his parole. Davis alleged, 

condensed, that the defendants breached these duties when, 

despite his protests, they (1) failed to research the correct law 

and applied the wrong law to calculate his parole eligibility 

date, (2) determined that he had not served enough time, (3) 

added his name to a list of persons who should be arrested, 

and (4) reincarcerated him for 59 days when he should have 

been on parole.

Davis alleged that in 1997, the Attorney General issued 

an opinion at the request of the Department’s director at that 

time.10 The Attorney General stated that generally, the good 

time provisions in effect when an offender committed the 

offense are the ones that apply to calculating the offender’s 

sentence,11 unless a later amendment increases the amount 

of credit that an offender can receive.12 Davis alleged a lack 

of institutional oversight, implementing policies, and training; and he alleged deliberate indifference to his rights. He 

alleged that he lost his job as a valet, his engraving business, 

and the house he was renting and that his arrest had strained 

his relationship with his girlfriend and his family. He alleged 

that this stress led to two occasions when he attempted suicide 

while incarcerated.

For his § 1983 due process claim, Davis alleged that the 

defendants’ “acts, omissions, policies and practices [were] a 

substantial departure from accepted professional judgment, . . . 

10 Att’y Gen. Op. No. 97005 (Jan. 14, 1997).

11 See id., citing Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 

960 (1981).

12 Id., citing State v. Schrein, 247 Neb. 256, 526 N.W.2d 420 (1995).
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constitute[d] punishment, [and] reflect[ed] deliberate indifference to the known and obvious consequences to [him].” For his 

§ 1983 Eighth Amendment claim, he alleged that the defendants’ “acts, omissions, policies and practices . . . constitute[d] 

cruel and unusual punishment.” He alleged the defendants’ 

conduct had caused him to suffer unspecified economic and 

noneconomic damages.

5. Hearing on Defendants’ Motion to Dismiss

The defendants moved to dismiss Davis’ negligence claim 

and § 1983 claims under Neb. Ct. R. Pldg. § 6-1112(b)(1) 

and (6). Their motion did not set out any specific grounds 

for a dismissal. At the hearing, the defendants argued that 

because Nebraska courts have held that the Parole Board’s 

functions are quasi-judicial and inherently discretionary, Davis’ 

claims against its members were not cognizable. They also 

argued that because the Parole Board had exclusive jurisdiction over Davis’ parole revocation, the court should dismiss 

Davis’ claims against the other defendants. Alternatively, they 

argued that Davis’ § 1983 claims were deficient, because he 

had not alleged that the defendants were personally involved in 

determining that his parole should be revoked or in procuring 

his reincarceration. Regarding Davis’ deliberate indifference 

allegations, the State argued that he would have to allege that 

the defendants knew he should not be reincarcerated and that 

they did so despite that knowledge. Regarding Davis’ negligence claim, the State argued that the defendants who were not 

Board members were immune from suit under the doctrine of 

sovereign immunity, because they were performing a discretionary function.

Davis responded that the Department is the main state 

agency with the duty to determine parole eligibility dates and 

release dates from mandatory minimum sentences. He argued 

that these duties were ministerial and not discretionary and 

that the Parole Board was not entitled to quasi-judicial immunity. He argued that his release on parole 2 months after he 

was reincarcerated showed that the only reason for his parole 
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revocation was an incorrect calculation of his parole eligibility date.

Davis also argued that the Department had continuing 

duties—before, during, and after his parole revocation—to 

review the record, apply the law correctly, and inform the 

Parole Board of its determinations. He argued that these duties 

showed other state actors besides the Parole Board were 

involved in his parole revocation and reincarceration. As a 

result, he argued that he could not yet plead with particularity and that the court could not yet determine whether any of 

the defendants were entitled to qualified immunity, because he 

had not had an opportunity to discover what each state actor 

had done.

6. Court’s Order

The court granted the defendants’ motion to dismiss. In its 

order, the court concluded that the Parole Board and its members were immune from Davis’ claims, because they perform a 

quasi-judicial function that is inherently discretionary. It stated 

that Davis’ claims against the Parole Board’s members arose 

solely out of their official function and that Nebraska law did 

not permit civil damages for decisions involving discretion. 

It dismissed Davis’ claims against the Parole Board and its 

members with prejudice.

The court dismissed Davis’ claims against the defendants 

who were not members of the Parole Board, because all 

of his claims arose from the revocation of his parole. The 

court determined that they were not involved in the revocation process and had no authority over the decision and that 

Davis had not alleged any facts connecting them to the revocation. It concluded that despite Davis’ allegations about the 

Department’s duties, the Parole Board had exclusive jurisdiction over his parole revocation, which did not involve the 

Attorney General’s office or any other defendant who was not 

a Parole Board member.
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Regarding Davis’ negligence claim, the court reasoned 

that under the STCA, the State can be liable only to the 

same extent as a private person would be under similar 

circumstances and a private person cannot revoke parole. 

Additionally, the court concluded that Davis’ “negligence 

action triggers the discretionary function exception [to the 

State’s waiver of immunity] because his claims are based 

upon State employees’ executing Nebraska statutes . . . and 

performing discretionary functions.”

Regarding Davis’ § 1983 claims, the court concluded that 

his claims against the State, state agencies, and state defendants in their official capacities were barred by sovereign immunity. It additionally found that the claims were not cognizable, 

because Davis had failed to “plead with any specificity that 

any named Defendant actually participated in any alleged 

constitutional violation.” Alternatively, the court ruled that the 

defendants were entitled to qualified immunity from Davis’ 

due process and Eighth Amendment claims. It concluded that 

the defendants’ mistaken belief that Davis’ parole eligibility 

date was correct did not deprive them of qualified immunity, 

because there is “no ‘clearly established constitutional right’ 

making State officials individually liable for erroneous parole 

revocations under the Eighth Amendment.”

III. ASSIGNMENTS OF ERROR

Davis assigns, consolidated and restated, that the court erred 

as follows:

(1) in dismissing all of his claims with prejudice;

(2) in determining that the Parole Board and its members are 

immune from his claims;

(3) in determining that the defendants who are not Parole 

Board members cannot be held liable for his reincarceration;

(4) in failing to weigh the role that the defendants who are 

not Parole Board members played in his reincarceration;

(5) in determining that the State has not waived its sovereign 

immunity for his negligence claim;
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(6) in determining that his negligence claim is barred by the 

discretionary function exception to the State’s waiver of sovereign immunity;

(7) in determining that he failed to plead his § 1983 claims 

with sufficient specificity;

(8) in determining that the defendants were entitled to qualified immunity; and

(9) in not allowing him to amend his complaint.

VI. STANDARD OF REVIEW

[1,2] We review a district court’s order granting a motion 

to dismiss de novo, accepting all allegations in the complaint 

as true and drawing all reasonable inferences in favor of the 

nonmoving party.13 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.14 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.15

[3-6] We independently review questions of law decided by 

a lower court.16 The determination of constitutional requirements presents a question of law.17 Statutory interpretation 

presents a question of law.18 Whether a plaintiff’s allegations 

present a claim that is barred by an exception to the State’s 

waiver of tort immunity in a tort claims act presents a question 

of law.19

13 Jacob, supra note 2.

14 First Neb. Ed. Credit Union v. U.S. Bancorp, 293 Neb. 308, 877 N.W.2d 

578 (2016).

15 Id.

16 State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).

17 Id.

18 State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).

19 See Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014).
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V. ANALYSIS

1. State Officers and Employees Acting Within

Scope of Their Offices or Employment Can

Be Sued for Tortious Conduct Only in

Their Official Capacities

Davis contends that he sued the defendants in their individual capacities and that some of the state employees acted 

outside of the scope of their duties. The State responds that 

Davis’ negligence claim is not cognizable against the state 

defendants in their individual capacities. We agree.

[7] Section 81-8,209 of the STCA bars tort claims against 

the State, its agencies, and its employees unless the State has 

waived its immunity for the claim:

The State of Nebraska shall not be liable for the torts 

of its officers, agents, or employees, and no suit shall 

be maintained against the state, any state agency, or any 

employee of the state on any tort claim except to the 

extent, and only to the extent, provided by the [STCA].

Section 81-8,215 is the State’s general waiver of tort immunity under the STCA.20 In relevant part, it provides that the 

State “shall be liable in the same manner and to the same 

extent as a private individual under like circumstances.”

[8-10] Statutes relating to the same subject, although 

enacted at different times, are in pari materia and should 

be construed together.21 Section 81-8,215, when read in pari 

materia with § 81-8,209, operates as a limited waiver of the 

State’s tort immunity, subject to specified exceptions that are 

set out in § 81-8,219.22 The exceptions to the waiver of the 

State’s tort immunity include claims based on the exercise 

20 See Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997).

21 D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017).

22 See Bronsen v. Dawes Cty., 272 Neb. 320, 722 N.W.2d 17 (2006). See, 

also, § 81-8,215; McCormick v. City of Norfolk, 263 Neb. 693, 641 

N.W.2d 638 (2002); Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d 

605 (1998).
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or performance of a discretionary function by a state officer 

or employee.23

[11] Under § 81-8,210, whether a plaintiff has sued a 

state officer or employee in his or her individual capacity is 

irrelevant to whether the STCA bars a tort claim against that 

officer or employee. That is because § 81-8,210(4) defines a 

tort claim to mean a claim for money damages caused by the 

wrongful or negligent conduct of an officer or employee who 

was acting “within the scope of his or her office or employment, under circumstances in which the state, if a private 

person, would be liable to the claimant for such damage, loss, 

injury, or death.” And § 81-8,209 authorizes tort liability for a 

state officer or employee only to the extent the STCA permits. 

So, under the STCA’s definition of a tort claim, plaintiffs are 

limited to suing state officers and employees in their official capacities.24 We have held that only when the officer or 

employee was not acting within the scope of his or her office 

or employment can a plaintiff pursue a tort claim against 

the officer or employee individually.25 This means that if an 

officer or employee was acting within the scope of his or her 

office or employment and the alleged tortious conduct falls 

within an exception to the State’s waiver of tort immunity, 

the STCA bars a tort claim against the officer or employee, 

regardless of the capacity in which he or she was purportedly sued.

Here, the state defendants could not have committed the 

tortious acts set out in Davis’ complaint as private individuals. To the extent that Davis implies that the defendants 

may have acted in bad faith, that argument is relevant to 

23 See § 81-8,219(1).

24 See Kruger v. Nebraska, 820 F.3d 295 (8th Cir. 2016). Accord, D.M. v. 

State, 23 Neb. App. 17, 867 N.W.2d 622 (2015); Bojanski v. Foley, 18 

Neb. App. 929, 798 N.W.2d 134 (2011).

25 See, e.g., Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138, 

876 N.W.2d 388 (2016); Bohl v. Buffalo Cty., 251 Neb. 492, 557 N.W.2d 

668 (1997); D.M., supra note 24.
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whether the defendants are entitled to quasi-judicial immunity,26 not to whether they were acting within the scope of 

their office or employment. So even if they were negligent or 

abused their authority, Davis’ argument that they might have 

acted outside of the scope of their official duties is without 

merit.27 Accordingly, whether they were sued in their individual 

capacities is irrelevant to the court’s dismissal of Davis’ negligence claim.

2. State Can Raise STCA Exception

for First Time on Appeal

At oral arguments, the State argued that Davis’ claim arose 

from a false imprisonment and was therefore barred by the 

intentional tort exception to the State’s waiver of immunity. 

Under § 81-8,219(4), the State’s waiver of immunity does not 

apply to “[a]ny claim arising out of . . . false imprisonment . . 

. .” But the State conceded that it did not raise this issue to the 

district court.

In Maresh v. State,

28 the State chose to raise the immunity 

issue as an affirmative defense. As a result, we held that the 

burden to prove the defense rested on the defendant.29 We 

expanded this reasoning in Sherrod v. State,

30 in which we held 

that exceptions to the general waiver of the STCA are matters 

of defense that the State must plead and prove. And we have 

repeated this holding in other cases.31

26 See Noffsinger v. Nebraska State Bar Assn., 261 Neb. 184, 622 N.W.2d 

620 (2001).

27 See Lamb, supra note 25.

28 Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992) (superseded in 

part by statute as stated in Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438 

(2010)).

29 Id.

30 Sherrod, supra note 20.

31 See, Hall, supra note 19; Doe v. Board of Regents, 280 Neb. 492, 788 

N.W.2d 264 (2010); Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d 

155 (2007); Lawry, supra note 22; Sherrod, supra note 20; D.M., supra

note 24.
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In Sherrod, we held that subject matter jurisdiction is 

conferred by the general waiver of tort immunity found in 

§ 81-8,215. We then cited four federal appellate decisions32

and a state court decision33 to hold that the government bears 

the burden to plead and prove the application of an exception 

to a waiver of sovereign immunity under a tort claims act.34

But not all of the cited federal cases supported our holding 

that a sovereign immunity defense can be waived by failing to 

plead it, and the differences are important.

We primarily relied on the Seventh Circuit’s holding in 

Stewart v. United States35 that the Federal Tort Claims Act 

(FTCA) “conferred general jurisdiction of the subject matter of 

claims coming within its purview, and the exceptions referred 

to are available to the government as a defense only when 

aptly pleaded and proven.” The court “thus viewed the discretionary function exception as a waivable affirmative defense 

rather than an impairment of its power to adjudicate.”36

We also cited the Sixth Circuit’s holding in Carlyle v. 

United States, Dept. of the Army37 that a plaintiff can invoke 

jurisdiction only if the complaint is facially outside the exceptions of the FTCA. The court further stated that “[o]nly after 

a plaintiff has successfully invoked jurisdiction by a pleading 

that facially alleges matters not excepted by [the FTCA] does 

the burden fall on the government to prove the applicability 

32 See Stewart v. United States, 199 F.2d 517 (7th Cir. 1952). See, also, 

Autery v. U.S., 992 F.2d 1523 (11th Cir. 1993); Prescott v. U.S., 973 F.2d 

696 (9th Cir. 1992); Carlyle v. United States, Dept. of the Army, 674 F.2d 

554 (6th Cir. 1982).

33 See State v. Zimring, 52 Haw. 477, 479 P.2d 205 (1970).

34 Sherrod, supra note 20.

35 Stewart, supra note 32, 199 F.2d at 519.

36 Richardson v. United States, 943 F.2d 1107, 1113 (9th Cir. 1991).

37 Carlyle, supra note 32.
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of a specific provision of [the FTCA].”38 And we cited a Ninth 

Circuit case, Prescott v. U.S.,

39 in which the court agreed with 

the Sixth Circuit’s decision in Carlyle.

In addition to these three federal court cases that we cited 

in Sherrod, the Third Circuit also holds that a defendant in an 

action brought under the FTCA bears the burden to prove an 

exception to the government’s waiver of immunity.40

But holding that the government bears the ultimate burden 

of proof is not the same as holding that the State’s sovereign 

immunity can be waived by a state attorney’s failure to raise it 

as a defense. And even among federal circuit courts that have 

decided the burden of proof question, they do not all agree that 

the FTCA exceptions are affirmative defenses for which the 

defendant bears the burden of persuasion.41 Their disparity may 

stem from the U.S. Supreme Court’s discussions of the jurisdictional nature of sovereign immunity.

The Supreme Court has clarified that a State’s 11th 

Amendment immunity from suit is a convenient shorthand, 

but something of a misnomer, for state sovereign immunity, 

which is broader than the terms of the 11th Amendment.42

Under the 11th Amendment, an unconsenting State is immune 

from federal court suits brought by its own citizens, as well 

as by citizens of another State.43 The Supreme Court has held 

38 Id. at 556.

39 Prescott, supra note 32.

40 See S.R.P. ex rel. Abunabba v. U.S., 676 F.3d 329 (3d Cir. 2012).

41 See, Wood v. U.S., 845 F.3d 123 (4th Cir. 2017); Tsolmon v. U.S., 841 F.3d 

378 (5th Cir. 2016); Carroll v. U.S., 661 F.3d 87 (1st Cir. 2011); Garcia v. 

U.S. Air Force, 533 F.3d 1170 (10th Cir. 2008); OSI, Inc. v. U.S., 285 F.3d 

947 (11th Cir. 2002).

42 Northern Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 126 S. Ct. 

1689, 164 L. Ed. 2d 367 (2006).

43 Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974).
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that states can waive their 11th Amendment immunity in 

federal court and that federal courts can ignore an immunity 

defense if a State has not raised it.44 It has explained that a 

State can waive its 11th Amendment immunity, because the 

amendment “enacts a sovereign immunity from suit, rather 

than a nonwaivable limit on the Federal Judiciary’s subjectmatter jurisdiction.”45 And it has refused to hold that the 

FTCA exceptions are subject to the general rule that a waiver 

of sovereign immunity will be strictly construed in favor 

of the sovereign.46 It has reasoned that in the context of the 

FTCA, “‘unduly generous interpretations of the exceptions 

run the risk of defeating the central purpose of the statute,’ 

. . . which ‘waives the Government’s immunity from suit in 

sweeping language.’”47

But the Supreme Court has also held that “[s]overeign 

immunity is by nature jurisdictional, . . . and the terms of 

the United States’ ‘“consent to be sued in any court define 

that court’s jurisdiction to entertain the suit.”’”48 In an FTCA 

appeal, it concluded that because the United States “can 

be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions . . . to 

such waiver.”49

44 See, Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 118 S. Ct. 

2047, 141 L. Ed. 2d 364 (1998); Patsy v. Florida Board of Regents, 457 

U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982).

45 Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S. Ct. 

2028, 138 L. Ed. 2d 438 (1997).

46 Dolan v. Postal Service, 546 U.S. 481, 126 S. Ct. 1252, 163 L. Ed. 2d 

1079 (2006).

47 Id., 546 U.S. at 492.

48 Henderson v. United States, 517 U.S. 654, 675-76, 116 S. Ct. 1638, 134 L. 

Ed. 2d 880 (1996). Accord FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 

127 L. Ed. 2d 308 (1994).

49 United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d 

390 (1976).
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Additionally, in United States v. Gaubert,

50 the Supreme 

Court imposed a pleading standard that requires a plaintiff’s 

factual allegations to support a finding that the FTCA’s discretionary function exception does not apply when a presumption 

of discretionary conduct exists:

When established governmental policy, as expressed 

or implied by statute, regulation, or agency guidelines, 

allows a Government agent to exercise discretion, it 

must be presumed that the agent’s acts are grounded in 

policy when exercising that discretion. For a complaint 

to survive a motion to dismiss, it must allege facts which 

would support a finding that the challenged actions are 

not the kind of conduct that can be said to be grounded in 

the policy of the regulatory regime.51

Finally, the Supreme Court has held that a State’s 11th 

Amendment immunity defense “sufficiently partakes of the 

nature of a jurisdictional bar” that it can be raised for the 

first time on appeal,52 although it has discretion to determine 

that a State has waived that argument by failing to raise it 

on appeal.53

Not all federal circuit courts have weighed in on which party 

bears the ultimate burden of persuasion on the application of 

an FTCA exception.54 Our analysis in Sherrod failed to recognize this. Specifically, our quote from Autery v. U.S.,

55 an 11th 

Circuit case that we cited, seemed to place that court in agreement with courts that hold the government bears the burden 

50 United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335 

(1991).

51 Id., 499 U.S. at 324-25.

52 Edelman, supra note 43, 415 U.S. at 678.

53 See, Patsy, supra note 44; Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 

L. Ed. 2d 532 (1975).

54 See, e.g., Gibson v. U.S., 809 F.3d 807 (5th Cir. 2016); Hart v. U.S., 630 

F.3d 1085 (8th Cir. 2011).

55 Autery, supra note 32.
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to prove an exception.56 But the 11th Circuit explicitly declined 

to decide the burden of proof question.57 To the contrary, the 

court noted that the Supreme Court’s decision in Gaubert

appears to put the burden on the plaintiff to disprove the discretionary function exception.58 The 10th Circuit has similarly 

noted that Gaubert casts doubt on the 9th Circuit’s holding in 

Prescott—which we cited in Sherrod—that the government 

bears the ultimate burden of persuasion.59 And the Sixth Circuit 

found it unnecessary to decide whether Gaubert affected its 

1982 holding in Carlyle60—which we also cited in Sherrod—

that the government bore the burden to prove an FTCA exception applied if a plaintiff’s complaint was “‘facially outside the 

exceptions of [28 U.S.C.] § 2680.’”61

Although the U.S. Supreme Court has not decided the ultimate burden of proof question for the FTCA exceptions, most 

federal circuit courts have held that the plaintiff bears the burden of alleging facts that show the exceptions to the government’s waiver of immunity under the FTCA do not deprive the 

court of subject matter jurisdiction.62 That includes the Sixth 

and Ninth Circuit decisions that we cited in Sherrod.

63

In fact, in the Ninth Circuit case we relied on, the court 

made the following statement in a footnote: “It is, of course, 

56 See Sherrod, supra note 20.

57 See Autery, supra note 32. Accord Mesa v. U.S., 123 F.3d 1435 (11th Cir. 

1997).

58 See id.

59 See Kiehn v. U.S., 984 F.2d 1100 (10th Cir. 1993).

60 Carlyle, supra note 32.

61 See Sharp ex rel. Estate of Sharp v. U.S., 401 F.3d 440, 443 n.1 (6th Cir. 

2005).

62 See, e.g., Edison v. U.S., 822 F.3d 510 (9th Cir. 2016); Gibson, supra note 

54; Zelaya v. U.S., 781 F.3d 1315 (11th Cir. 2015); Molchatsky v. U.S., 

713 F.3d 159 (2d Cir. 2013); Welch v. U.S., 409 F.3d 646 (4th Cir. 2005); 

Carlyle, supra note 32.

63 See, Prescott, supra note 32; Carlyle, supra note 32.
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‘well-established law that . . . jurisdictional defenses cannot be 

waived by the parties and may be raised for the first time on 

appeal or even raised by a court sua sponte.’”64 In a previous 

case, it had remanded the matter for the district court to determine whether the discretionary function applied even though 

the government had not raised the exception: “[I]f the discretionary function applies, the claims should be dismissed for 

lack of jurisdiction. This court must consider jurisdiction even 

if the parties have not challenged it.”65 Other federal circuit 

courts agree that an FTCA exception can be considered for the 

first time on appeal, at least where the parties do not dispute 

facts relevant to the application of an exception.66

Similarly, the Eighth Circuit has held that because a court 

lacks subject matter jurisdiction if an alleged act falls within 

the discretionary function exception, a district court does not 

err in sua sponte ruling that it lacks jurisdiction and dismissing 

the plaintiff’s action, where the jurisdictional facts are undisputed and the exception clearly applies.67

That leaves the Seventh Circuit’s holding in Stewart v. 

United States68 as the primary authority for our holding in 

Sherrod that the State’s waiver of immunity can be forfeited if 

the State fails to plead and prove an STCA exception. Stewart

remains good law in the Seventh Circuit,69 and, as noted, the 

Third Circuit agrees.70 But in a 2016 unpublished decision, 

the Third Circuit held that a federal district court did not err 

64 Prescott, supra note 32, 973 F.2d at 701 n.2, citing Roberts v. U.S., 887 

F.2d 899 (9th Cir. 1989).

65 Roberts, supra note 64, 887 F.2d at 900.

66 See, Garling v. U.S. E.P.A., 849 F.3d 1289 (10th Cir. 2017); Medina v. 

U.S., 259 F.3d 220 (4th Cir. 2001); Hydrogen Technology Corp. v. U.S., 

831 F.2d 1155 (1st Cir. 1987).

67 See Hart, supra note 54.

68 Stewart, supra note 32.

69 See, e.g., Keller v. U.S., 771 F.3d 1021 (7th Cir. 2014).

70 See S.R.P. ex rel. Abunabba, supra note 40.
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in sua sponte ruling that the plaintiff’s claim was barred by 

the discretionary function exception.71 It stated that although 

the exception is analogous to an affirmative defense, it is also 

jurisdictional on its face, which is a question that a court has 

an obligation to address.72 Similarly, in a 1995 decision, the 

Seventh Circuit did not treat Stewart as binding precedent 

and independently decided on appeal that the relevant statutes 

and regulations showed the discretionary function exception 

barred the plaintiff’s claim.73

These cases illustrate that because sovereign immunity is 

jurisdictional in nature, and because courts have a duty to 

determine whether they have subject matter jurisdiction over 

a matter, treating the FTCA exceptions as waivable affirmative defenses places courts in an impossible position when 

a jurisdictional problem appears on the face of a plaintiff’s complaint.

[12-15] This court has repeatedly held that an appellate 

court has an independent duty to decide jurisdictional issues 

on appeal, even if the parties have not raised the issue.74 And 

when a trial court lacks the power, that is, jurisdiction, to 

adjudicate the merits of a claim, an appellate court also lacks 

the power to adjudicate the merits of the claim.75 We have 

held that a trial court lacks subject matter jurisdiction over an 

action against the State unless the State has consented to suit.76

71 See Bedell v. United States, 669 Fed. Appx. 620 (3d Cir. 2016).

72 Id.

73 See Rothrock v. U.S., 62 F.3d 196 (7th Cir. 1995).

74 E.g., J.S. v. Grand Island Public Schools, ante p. 347, 899 N.W.2d 893 

(2017).

75 E.g., Landrum v. City of Omaha Planning Bd., ante p. 165, 899 N.W.2d 

598 (2017).

76 See, Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 

48, 825 N.W.2d 204 (2013); Engler v. State, 283 Neb. 985, 814 N.W.2d 

387 (2012); McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009); 

Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002).
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And lack of subject matter jurisdiction may be raised at any 

time by any party or by the court sua sponte.77 As discussed, 

however, we have also held in several cases that the exceptions 

to the STCA and the Political Subdivisions Tort Claims Act are 

affirmative defenses that the State must plead and prove.78

We conclude that these lines of cases are irreconcilable 

to the extent that the latter cases imply that a state attorney 

can waive the State’s immunity from suit by failing to raise 

an exception in a responsive pleading. But when a plaintiff’s 

complaint shows on its face that a claim is barred by one of the 

exceptions, the State’s inherent immunity from suit is a jurisdictional issue that an appellate court cannot ignore.

[16,17] The doctrine of stare decisis requires that we adhere 

to our previous decisions unless the reasons therefor have 

ceased to exist, are clearly erroneous, or are manifestly wrong 

and mischievous or unless more harm than good will result 

from doing so.79 The doctrine is entitled to great weight, but 

it does not require us to blindly perpetuate a prior interpretation of the law if we conclude the prior interpretation was 

clearly incorrect.80

[18] We conclude that our cases holding that the State must 

plead and prove an exception to the STCA are clearly erroneous to the extent they can be read to hold that a state attorney 

waives an immunity defense under § 81-8,219 by failing to 

raise it in a pleading or to a trial court. To the extent that they 

can be so interpreted, the cases cited in footnotes 28 and 31 

are overruled. We hold that an exception to the State’s waiver 

of immunity under the STCA is an issue that the State may 

raise for the first time on appeal and that a court may consider 

sua sponte.

77 E.g., J.S., supra note 74.

78 See cases cited supra notes 28 and 31.

79 See Cano v. Walker, ante p. 580, ___ N.W.2d ___ (2017).

80 See id.
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[19] This holding does not mean that the State may litigate factual disputes relevant to the application of an STCA 

exception for the first time on appeal. But an appellate court 

has the power to determine whether a plaintiff’s allegations, 

taken as true, show that a tort claim is facially barred by an 

STCA exception under § 81-8,219. We turn to the allegations 

in Davis’ complaint.

Davis alleged that he turned himself in to authorities after 

his parole officer directed him to do so because his parole 

eligibility date had been miscalculated. He alleged that he was 

reincarcerated for almost 2 months despite his protests that 

his parole eligibility date had been correctly calculated. We 

conclude that these allegations, accepted as true, are facially 

within the exception to the State’s waiver of immunity for tort 

claims arising out of false imprisonment.81

[20] False imprisonment is the unlawful restraint of a person’s liberty against his or her will.82 Any intentional conduct 

that results in the placing of a person in a position where he 

or she cannot exercise his or her will in going where he or 

she may lawfully go may constitute false imprisonment.83 The 

Court of Appeals has previously held that a plaintiff’s claim 

that prison officials detained him past his correct release date 

stated a claim of false imprisonment.84 We agree and conclude 

that the same reasoning applies here. Davis’ allegations that 

the prison officials negligently calculated his parole eligibility 

date does not preclude the application of the false imprisonment exception. The heart of his claim is that he was unlawfully reincarcerated, and no further discovery could correct 

that fundamental defect in his complaint. His negligence claim 

81 See § 81-8,219(4).

82 Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).

83 Id.

84 See Cole v. Clarke, 8 Neb. App. 614, 598 N.W.2d 768 (1999). See, also, 

Annot., 152 A.L.R. Fed. 605, § 5 (1999); 35A Am. Jur. 2d Federal Tort 

Claims Act § 91 (2010).
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against the state defendants arose out of their alleged contribution to his unlawful imprisonment, their failure to correct the 

mistake, or their failure to ensure that such mistakes would 

not occur.

[21] As explained, under the STCA, if an officer or employee 

was acting within the scope of his or her office or employment 

and the alleged tortious conduct falls within an exception to 

the State’s waiver of tort immunity, the STCA bars a tort claim 

against the officer or employee, regardless of the capacity in 

which he or she was purportedly sued. Because the State has 

not consented to suit for claims arising out of a false imprisonment, Davis has not alleged a tort claim that is plausible on 

its face against any named defendant. Although our reasoning 

necessarily differs from the district court’s, we may affirm a 

lower court’s ruling that reaches the correct result, albeit based 

on different reasoning.85 The court did not err in dismissing 

Davis’ tort claim. We turn to his § 1983 claims.

3. Validity of Davis’ § 1983 Claims Against

State Officers and Employees

Davis concedes that the court properly dismissed his § 1983 

claims against the State, its agencies, and its employees in 

their official capacities. But he contends that the court erred 

in dismissing his § 1983 claims against the defendants in their 

individual capacities. Section 1983 provides, in relevant part, 

the following:

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

States or other person within the jurisdiction thereof to 

the deprivation of any rights, privileges, or immunities 

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

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

proper proceeding for redress . . . .

85 E.g., Phillips v. Liberty Mut. Ins. Co., 293 Neb. 123, 876 N.W.2d 361 

(2016).
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(a) Sovereign Immunity Bars Davis’ § 1983 

Claims Against State, Arms of State, 

and State Defendants Sued in 

Their Official Capacities

[22,23] The U.S. Supreme Court has interpreted § 1983 to 

mean that “States or governmental entities that are considered 

‘arms of the State’ for Eleventh Amendment purposes” are 

not “persons” that can be sued under the statute.86 Whether a 

state entity is an arm of the State and entitled to share its 11th 

Amendment immunity is a question of federal law.87

[24,25] Under federal law, whether a money judgment 

against a state entity would be enforceable against the State is 

the critical consideration under § 1983 for determining whether 

the entity is an arm of the State and therefore immune from 

suit by private persons.88 Accordingly, we have held that a suit 

against a state agency is a suit against the State and that both 

the State and state agencies can assert the State’s sovereign 

immunity against suit.89

[26] The Department is a state agency. Structurally, the 

Parole Board is more an arm of the State than a state agency. 

It is not a political subdivision or a statutorily created agency. 

It is a constitutionally created body of state government that is 

part of the executive branch.90 Because any judgment against 

the Parole Board would be a judgment against the State, it is 

cloaked with the State’s 11th Amendment immunity and cannot 

be named as a defendant in an action brought under § 1983.

86 See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S. Ct. 

2304, 105 L. Ed. 2d 45 (1989).

87 See Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 117 S. Ct. 900, 137 L. 

Ed. 2d 55 (1997).

88 See Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 115 

S. Ct. 394, 130 L. Ed. 2d 245 (1994). See, also, Regents of Univ. of Cal., 

supra note 87.

89 See, e.g., Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 

Neb. 540, 855 N.W.2d 788 (2014).

90 Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).
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[27,28] Similarly, the U.S. Supreme Court has interpreted 

§ 1983 to mean that a state official sued in his or her official capacity is not a person who can be sued in an action 

brought under § 1983, unless the plaintiff seeks only prospective relief.91 Prospective relief is permitted against state 

officials, because the doctrine of Ex parte Young92 applies to 

§ 1983 claims.93 Under that doctrine, a State’s 11th Amendment 

immunity does not bar a suit against state officers when the 

plaintiff seeks only prospective relief for ongoing violations 

of federal rights.94 But when a plaintiff seeks money damages 

against a state officer or employee in his or her official capacity, the State is the real party in interest, because the officer’s 

liability in that capacity is liability for the state entity that the 

officer represents.95

Davis is not seeking prospective relief from any ongoing 

official state act or policy. He is seeking money damages 

for past deprivations of constitutional rights. Accordingly, the 

court properly dismissed Davis’ § 1983 claims against the 

State, the Parole Board, the Department, and all state defendants sued in their official capacities.

(b) Personal Capacity Claims Under § 1983

[29] Under 42 U.S.C. § 1983, the State’s sovereign immunity does not bar a claim for damages against state officials 

and employees who are sued in their personal capacities.96

91 See Will, supra note 86. Accord Wilkinson v. Dotson, 544 U.S. 74, 125 S. 

Ct. 1242, 161 L. Ed. 2d 253 (2005).

92 Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).

93 See Will, supra note 86.

94 See Doe, supra note 31, citing Verizon Md. Inc. v. Public Serv. Comm’n of 

Md., 535 U.S. 635, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002).

95 See Anthony K., supra note 89, citing Kentucky v. Graham, 473 U.S. 159, 

105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985).

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

Accord, e.g., Suarez Corp. Industries v. McGraw, 125 F.3d 222 (4th Cir. 

1997).
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Personal capacity claims “seek to impose individual liability 

upon a government officer for actions taken under color of 

state law.”97 The U.S. Supreme Court has clarified that an 

earlier reference it made to the capacity in which an officer or 

employee acted “is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which 

the officer inflicts the alleged injury.”98

[30,31] “‘[T]o establish personal liability in a § 1983 action, 

it is enough to show that the official, acting under color of 

state law, caused the deprivation of a federal right.’”99 Acting 

under the color of state law does not mean that a state official 

or employee must have been complying with state law. Under 

§ 1983, liability exists as long as the action was taken within 

the scope of the defendant’s official authority, even if the official or employee abused his or her authority.100

[32] But state defendants are entitled to assert personal 

common-law immunity defenses against a § 1983 action.101

“While the plaintiff in a personal-capacity suit need not establish a connection to governmental ‘policy or custom,’ officials 

sued in their personal capacities, unlike those sued in their 

official capacities, may assert personal immunity defenses such 

as objectively reasonable reliance on existing law.’”102

The state defendants argue that they are entitled to two 

types of personal immunity defenses against Davis’ § 1983 

claims: absolute immunity and qualified immunity. Before 

discussing the defendants’ immunity defenses, we consider the 

97 Hafer, supra note 96, 502 U.S. at 25.

98 Id., 502 U.S. at 26.

99 Id., 502 U.S. at 25 (emphasis in original), citing Graham, supra note 95.

100 West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); 

Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), 

overruled on other grounds, Monell v. New York City Dept. of Social 

Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

101 See Filarsky v. Delia, 566 U.S. 377, 132 S. Ct. 1657, 182 L. Ed. 2d 662 

(2012).

102Hafer, supra note 96, 502 U.S. at 25, quoting Graham, supra note 95.
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validity of Davis’ claims that the state defendants violated his 

due process and Eighth Amendment rights.

(c) Deliberate Indifference to a Plaintiff’s Unlawful 

Incarceration States Substantive Due Process 

or Eighth Amendment Violation

[33] Under the Due Process Clause of the federal 

Constitution, “[n]o state shall . . . deprive any person of life, 

liberty, or property, without due process of law . . . .”103 The 

Due Process Clause provides both procedural and substantive 

protections.104

[34] In Morrissey v. Brewer,

105 the U.S. Supreme Court held 

that parolees have a valuable liberty interest in their continued 

parole even though it depends upon their compliance with 

parole conditions. Parole is therefore protected by the 14th 

Amendment and requires at least minimal procedural protections before a State can terminate it.106

But Davis has raised a substantive due process argument. 

He claims that the state defendants were deliberately indifferent to his repeated claim, before and after his reincarceration, that because the mandatory minimum sentence did 

not apply to him, he had been properly released on parole. 

Relatedly, he argues that the defendants violated his Eighth 

Amendment right to be free from incarceration without a penological justification.

Federal courts have addressed both substantive due process 

claims and Eighth Amendment claims resting on a plaintiff’s 

unlawful detention or incarceration. Regardless of the asserted 

right, these cases require a plaintiff to show the same level 

103U.S. Const. amend. XIV, § 1.

104 See, e.g., Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 

293, 739 N.W.2d 742, 756 (2007), citing Harrah Independent School Dist. 

v. Martin, 440 U.S. 194, 99 S. Ct. 1062, 59 L. Ed. 2d 248 (1979).

105 Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 

(1972).

106 Id.
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of culpability for a State’s failure to investigate the plaintiff’s 

claim that he or she was being unlawfully held: deliberate indifference.

[35-38] The “‘touchstone of due process is protection of 

the individual against arbitrary action of government,’ . . . 

whether the fault lies in a denial of fundamental procedural 

fairness . . . or in the exercise of power without any reasonable justification in the service of a legitimate governmental 

objective.”107 The “due process protection in the substantive 

sense limits what the government may do in both its legislative . . . and its executive capacities.”108 But the “criteria to 

identify what is fatally arbitrary differ depending on whether 

it is legislation or a specific act of a governmental officer that 

is at issue.”109 “[O]nly the most egregious official conduct 

can be said to be ‘arbitrary in the constitutional sense.’”110

“[T]he 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.’”111 “[L]iability for negligently inflicted 

harm is categorically beneath the threshold of constitutional 

due process.”112

The U.S. Supreme Court applied these principles in Baker 

v. McCollan,

113 a case from the Fifth Circuit involving the 

respondent’s mistaken arrest on a warrant and a sheriff’s 

office’s unlawful detention of him for 3 days, despite information at the office that would have revealed the mistake. The 

107County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S. Ct. 1708, 

140 L. Ed. 2d 1043 (1998).

108 Id., 523 U.S. at 846.

109 Id.

110 Id.

111 Id., 523 U.S. at 847.

112 Id., 523 U.S. at 849.

113 See Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 443 

(1979).
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sheriff verified the respondent’s claim as soon as he learned 

about it and released him.114 The Fifth Circuit held that the 

sheriff had a “duty to exercise due diligence in making sure 

that the person arrested and detained is actually the person 

sought under the warrant and not merely someone of the same 

or a similar name.”115 It concluded that a jury could find the 

sheriff was not entitled to qualified immunity because he had 

caused the respondent’s detention by unreasonably failing to 

have adequate identification procedures in place.

The Supreme Court reversed. It concluded that the Fifth 

Circuit erred in applying tort principles to conclude that the 

sheriff had violated the respondent’s constitutional right to be 

free of a liberty deprivation without due process of law. The 

Court acknowledged that at some point, an unlawful detention 

would cause a constitutional deprivation:

Obviously, one in the respondent’s position could not be 

detained indefinitely in the face of repeated protests of 

innocence even though the warrant under which he was 

arrested and detained met the standards of the Fourth 

Amendment. . . . We may even assume, arguendo, that, 

depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated 

protests of innocence will after the lapse of a certain 

amount of time deprive the accused of “liberty . . . without due process of law.”116

But the Court concluded that a 3-day detention could not 

show a constitutional deprivation. “[F]alse imprisonment does 

not become a violation of the Fourteenth Amendment merely 

because the defendant is a state official.”117

114 Id.

115 McCollan v. Tate, 575 F.2d 509, 513 (5th Cir. 1978), reversed, Baker, 

supra note 113.

116 Baker, supra note 113, 443 U.S. at 144-45.

117 Id., 443 U.S. at 146.
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[39] In Baker, the Court had no need to determine the 

applicable culpability standard for a valid unconstitutional 

detention claim, because it concluded that the respondent had 

failed to show a constitutional deprivation. But normally, when 

a State holds an individual in custody, the requisite level of 

conscience-shocking conduct is deliberate indifference, subject to the caveat that the standard is “sensibly employed only 

when actual deliberation is practical.”118

It is true that courts usually apply the deliberate indifference standard of culpability when a State has failed to provide 

for an inmate’s basic needs.119 But federal courts of appeals 

have applied the deliberate indifference standard to substantive 

due process claims involving wrongful detentions.120 “When 

‘actual deliberation is practical,’ establishing a substantivedue-process violation requires proof of deliberate indifference 

. . . .”121 Some federal courts have explicitly distinguished 

Baker, concluding that the short duration of that detention was 

crucial to the decision and that Baker did not preclude liability 

under § 1983 for all false imprisonment claims.122

But in cases involving both an unlawful pretrial detention 

and an overdetention of an inmate, federal courts have held 

that state officials who are deliberately indifferent to an individual’s claim that he or she is being unlawfully detained violate the individual’s substantive due process right to be free 

from wrongful incarceration without due process of law.123

118 See County of Sacramento, supra note 107, 523 U.S. at 851.

119 See id.

120 See, e.g., Davis v. Hall, 375 F.3d 703 (8th Cir. 2004); Cannon v. Macon 

County, 1 F.3d 1558 (11th Cir. 1993), modified on denial of rehearing 15 

F.3d 1022 (11th Cir. 1994).

121 See Scott v. Baldwin, 720 F.3d 1034, 1036 (8th Cir. 2013).

122 See, e.g., Davis, supra note 120, Cannon, supra note 120; Sanders v. 

English, 950 F.2d 1152 (5th Cir. 1992); Haygood v. Younger, 769 F.2d 

1359 (9th Cir. 1985).

123 See, Davis, supra note 120 (citing cases); Cannon, supra note 120.
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Similarly, federal courts have held that detaining an inmate 

after the expiration of his or her sentence without penological 

justification is an Eighth Amendment violation when prison 

officials are deliberately indifferent to the inmate’s liberty 

interest.124 These parallel lines of cases exist because the U.S. 

Supreme Court has held that conditions of pretrial detention 

are analyzed under the Due Process Clause, while conditions of incarceration after a conviction are analyzed under 

the Eighth Amendment.125 But the culpability standard is 

the same.

Finally, in an action under Bivens v. Six Unknown Fed. 

Narcotics Agents126 “(the § 1983 counterpart for actions against 

federal officials),”127 the Ninth Circuit held that federal prison 

officials who were deliberately indifferent to an inmate’s claim 

that they had miscalculated his release date were not entitled 

to qualified immunity.128 The court reasoned that the officials 

had violated a clear duty to investigate his claim under federal 

regulations and policies when he raised a substantial question 

regarding the accuracy of the agency calculation on which the 

officials had relied in ignoring his protests.

In sum, whether a plaintiff’s § 1983 claim rests on an alleged 

violation of the 8th or 14th Amendment or a government official’s violation of a clear regulatory duty intended to protect 

those rights, federal courts have expressly or implicitly premised liability on a finding that the government officials were 

124 See, Burke v. Johnston, 452 F.3d 665 (7th Cir. 2006); Moore v. Tartler, 986 

F.2d 682 (3d Cir. 1993); Haygood, supra note 122.

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

(1979); Wharton v. Danberg, 854 F.3d 234 (3d Cir. 2017).

126 See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 

1999, 29 L. Ed. 2d 619 (1971).

127Powers v. Hamilton Cty. Pub. Def. Comm., 501 F.3d 592, 610 (6th Cir. 

2007).

128Alexander v. Perrill, 916 F.2d 1392 (9th Cir. 1990). See, also, Burke, 

supra note 124.
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deliberately indifferent in failing to investigate the plaintiff’s 

claim that his sentence was miscalculated.129 Deliberate indifference represents the consensus of federal appellate courts on 

the type of government overdetention or false imprisonment 

that will result in a constitutional deprivation.

[40] We therefore hold that a plaintiff states a cognizable 

constitutional violation under the 8th or 14th Amendment 

when the plaintiff alleges that a state defendant—who had 

knowledge of the plaintiff’s complaint that he or she was being 

unlawfully detained and the authority to investigate that complaint—was deliberately indifferent to the plaintiff’s liberty 

interest and the defendant’s failure to take action resulted in 

the plaintiff’s continued unlawful detention for more than an 

insignificant period.

Davis alleged the state defendants were deliberately indifferent to his protests that they had miscalculated his parole 

eligibility date and alleged he was reincarcerated for more 

than an insignificant amount of time. So we turn to the reasons that the district court dismissed his claims.

(d) Court Properly Dismissed Davis’ § 1983 

Claim Against Parole Board and Its 

Past and Current Members

[41] The court implicitly concluded that the Parole Board 

and its members had absolute immunity from Davis’ claims by 

ruling that its members were performing a quasi-judicial function. Public officials performing a quasi-judicial function have 

absolute immunity from damages for acts they commit within 

the scope of that function.130 A quasi-judicial function refers to 

one that is closely related to the judicial process.131

[42] In determining whether to grant quasi-judicial immunity, courts examine the nature of the functions with which 

129 See, Burke, supra note 124; Davis, supra note 120, Moore, supra note 

124; Alexander, supra note 128.

130 See Frey v. Blanket Corp., 255 Neb. 100, 582 N.W.2d 336 (1998).

131 See Noffsinger, supra note 26.
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a particular official or class of officials has been lawfully 

entrusted to evaluate the effect that exposure to particular 

forms of liability would likely have on the appropriate exercise 

of those functions.132

[W]here an officer is invested with discretion and is 

empowered to exercise his or her judgment in matters 

brought before the officer, he or she is sometimes called a 

quasi-judicial officer and when so acting, is usually given 

immunity from liability to persons who may be injured 

as the result of an erroneous decision, provided the acts 

complained of are done within the scope of the officer’s authority and without willfulness, malice, or corruption. . . . However, quasi-judicial immunity from any suit 

or damages based upon the performance of duties within 

a person’s authority attaches not to particular offices, but 

to particular official functions.133

We have previously recognized that the Parole Board exercises independent discretion in deciding whether to grant parole 

to a convicted offender.134 In addition, federal appellate courts 

hold that parole boards have absolute immunity from suit when 

they perform quasi-judicial functions such as granting, denying, or revoking parole.135

But Davis contends that the Parole Board was not exercising 

discretion in revoking his parole, because it was not reviewing 

his conduct while on parole. He argues that the revocation 

hearing dealt only with the calculation of his parole eligibility, 

which is a ministerial function to which quasi-judicial immunity does not attach. Davis argues that instead of exercising 

discretion, the Board blindly followed the Department’s lead 

132 Id.

133 Id. at 188-89, 622 N.W.2d at 624.

134 See Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183 

(1997).

135 See, Swift v. California, 384 F.3d 1184 (9th Cir. 2004); Montero v. Travis, 

171 F.3d 757 (2d Cir. 1999); Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir. 

1996); Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir. 1990).
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in incorrectly applying a mandatory minimum sentencing statute to revoke his parole.

At oral arguments, Davis relied on our decision in Pratt v. 

Nebraska Bd. of Parole.

136 He argued that it showed the Parole 

Board was not entitled to immunity here, because it was not 

exercising discretion. In Pratt, we considered an earlier version 

of § 83-1,110, which set out the calculation requirements for 

determining an offender’s parole eligibility date. We held that 

the finding of parole eligibility is a ministerial duty that can be 

enforced through a writ of mandamus. When we decided Pratt, 

a recommendation of parole from an inmate’s sentencing judge 

was a circumstance that required the Parole Board to consider 

the inmate for parole, and such a letter had been presented to 

the Parole Board. We stated that unlike the decision whether to 

grant parole,

a finding of eligibility for parole was not discretionary. 

Rather, it was the duty of the Board to recognize the 

offender’s parole eligibility upon a showing of certain 

facts, regardless of the Board’s own judgment or opinion 

concerning the propriety or impropriety of such a determination. Therefore, the Board’s duty to recognize [the 

prisoner’s] parole eligibility was ministerial. The Board 

did not have to grant [him] parole, but it had the duty to 

consider him for parole.137

[43] But this case is distinguishable from Pratt, because 

the Parole Board was not refusing to exercise its discretion 

to grant a parole. It was exercising its discretion to revoke 

a parole in reliance on information provided to it from the 

Department. Nebraska’s statutes require the Department to 

provide the Parole Board with its calculations,138 and the Parole 

Board is entitled to rely on them. Davis points to no statute or 

136Pratt, supra note 134.

137 Id. at 911, 567 N.W.2d at 188.

138 See Neb. Rev. Stat. §§ 83-1,107 (Cum. Supp. 2016) and 83-1,109 (Reissue 

2014).
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regulation that requires the Parole Board to perform its own 

calculations or investigations. Its mere reliance on evidence 

presented to it does not change the nature of its function of 

exercising independent discretion whether to grant, deny, or 

revoke parole. Accordingly, the district that did not err in dismissing Davis’ § 1983 claims against the Parole Board’s past 

or current members.

(e) Department’s Employees Are Entitled 

to Qualified Immunity From 

Davis’ § 1983 Claims

The court ruled that the state defendants who were not members of the Parole Board were entitled to qualified immunity 

from his due process and Eighth Amendment claims or that 

Davis had not alleged their personal participation in an alleged 

constitutional violation with sufficient specificity.

(i) General Principles of Qualified Immunity

[44,45] Most executive officials and employees are limited to asserting qualified immunity as an affirmative defense 

against a personal capacity claim under § 1983.139 Qualified 

immunity shields state officials from money damages unless 

a plaintiff alleges facts that would, if proved, show (1) the 

official violated a federally guaranteed right and (2) the constitutional or statutory right was clearly established at the time of 

the challenged conduct.140 A court can address the two components of the qualified immunity analysis in either order.141

139 See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 

(1982).

140 See, Filarsky, supra note 101; Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. 

Ct. 2074, 179 L. Ed. 2d 1149 (2011); Elder v. Holloway, 510 U.S. 510, 

114 S. Ct. 1019, 127 L. Ed. 2d 344 (1994). Accord, e.g., Potter v. Board of 

Regents, 287 Neb. 732, 844 N.W.2d 741 (2014); Ashby v. State, 279 Neb. 

509, 779 N.W.2d 343 (2010).

141Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 

(2009); Potter, supra note 140.
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[46,47] Because qualified immunity is immunity from suit, 

a trial court should try to resolve “‘immunity questions at the 

earliest possible stage in litigation.’”142 “‘[W]hether an official 

protected by qualified immunity may be held personally liable 

for an allegedly unlawful official action generally turns on the 

“objective legal reasonableness” of the action, assessed in light 

of the legal rules that were “clearly established” at the time it 

was taken.’”143

[48] Whether a federal right is clearly established presents 

a question of law.144 A court must consider whether the law is 

clearly established as it relates to the particular facts of a case:

“[C]learly established law” should not be defined “at a 

high level of generality.” . . . As this Court explained 

decades ago, the clearly established law must be “particularized” to the facts of the case. . . . Otherwise, 

“[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely 

abstract rights.”145

The unlawfulness of a defendant’s conduct must be obvious or 

apparent in the light of preexisting law.146 That is, the contours 

of the right must be sufficiently clear that a reasonable official 

would understand that his or her conduct violates that right.147

[49,50] To show a clearly established federal right, the U.S. 

Supreme Court does “‘not require a case [to be] directly on 

142 Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 

(2001), overruled in part on other grounds, Pearson, supra note 141.

143 Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S. Ct. 1235, 182 L. 

Ed. 2d 47 (2012), quoting Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 

3034, 97 L. Ed. 2d 523 (1987).

144Elder, supra note 140.

145 White v. Pauly, ___ U.S. ___, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 

(2017) (citations omitted).

146 Id.

147 See, e.g., Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).
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point, but existing precedent must have placed the statutory or 

constitutional question beyond debate.’”148 Additionally, both 

the Supreme Court and federal circuit courts have stated that a 

federal right can be established by a robust consensus of cases 

of persuasive authority.149

[51] Showing that a state defendant was negligent is insufficient to defeat a qualified immunity defense.150 “Qualified 

immunity gives government officials breathing room to 

make reasonable but mistaken judgments and protects all 

but the plainly incompetent or those who knowingly violate 

the law.”151

(ii) Application of Qualified Immunity Principles 

to Department Employees

Davis alleged that he continually told Department employees verbally and through letters that his parole eligibility date 

had been correctly calculated and that the mandatory minimum 

sentence did not apply to him. The court essentially concluded 

that there was no clearly established right to have an error-free 

parole revocation and that the defendants’ mistaken belief that 

Davis’ parole eligibility date was incorrect did not strip them 

of qualified immunity.

We agree that Davis had no right to an error-free proceeding. However, the qualified immunity issues were whether the 

defendants were deliberately indifferent to Davis’ oral and written protests—before and after they reincarcerated him—that 

148 Taylor v. Barkes, ___ U.S. ___, 135 S. Ct. 2042, 2044, 192 L. Ed. 2d 78 

(2015).

149 See, e.g., Ashcroft, supra note 140; Wilson v. Layne, 526 U.S. 603, 119 

S. Ct. 1692, 143 L. Ed. 2d 818 (1999); Booker v. South Carolina Dept. of 

Corrections, 855 F.3d 533 (4th Cir. 2017); De La Rosa v. White, 852 F.3d 

740 (8th Cir. 2017); Mammaro v. N.J. Div. of Child Prot. and Permanency, 

814 F.3d 164 (3d Cir. 2016).

150 See, Potter, supra note 140; Ashby, supra note 140.

151Potter, supra note 140, 287 Neb. at 740, 844 N.W.2d at 750, citing 

Messerschmidt, supra note 143.
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they had calculated his parole eligibility date incorrectly, and 

whether a reasonable Department official or employee should 

have known that the time the Department took to correct the 

calculation of Davis’ parole eligibility date was unlawful in 

light of the clearly established law.

The court could not know whether the Department employees were deliberately indifferent to Davis’ protests or which 

employees or officials would have seen his letters protesting his reincarceration. The State did not file a responsive 

pleading. It is true that the Department’s second release of 

Davis 2 months later is some indication that its employees 

investigated his complaint. But giving Davis the benefit of all 

reasonable inferences, his allegations could equally suggest 

that for a significant period of this time, the Department’s 

employees did nothing to investigate. This is a reasonable 

inference because the computation did not involve complex 

facts or laws.

But we do not believe that at the time of Davis’ reincarceration, the law clearly established that the Department employees 

would violate a federal right by failing to promptly respond to 

Davis’ claim that they had miscalculated his parole eligibility 

date. Both the Eighth Circuit and the Seventh Circuit have 

held that under both the 8th and 14th Amendments, inmates 

have a clearly established right to be free from wrongful, 

prolonged incarceration.152 And we conclude that extending 

this rule to wrongful recommitments based on a miscalculated 

parole eligibility date is required by the U.S. Supreme Court’s 

holding in Morrissey that parolees have a valuable liberty 

interest in their continued parole.153

But the typical miscalculation case involves a State’s wrongful incarceration of an inmate beyond his or her release date. 

Davis has not pointed to a case in which a court has held 

that a State has or can violate an offender’s 14th Amendment 

152 See, Figgs v. Dawson, 829 F.3d 895 (7th Cir. 2016); Scott, supra note 121.

153 See Morrissey, supra note 105.
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rights by being deliberately indifferent to the parolee’s claim 

that he or she has been wrongly reincarcerated. Our research 

has uncovered only one somewhat comparable federal appellate decision dealing with a parolee’s delayed release from 

parole.154 Moreover, in Morrissey, the Court held that a lapse 

of 2 months before a parolee receives a revocation hearing for 

an alleged parole violation is not unreasonable.155

Given this precedent and the paucity of persuasive case law 

dealing with a State’s deliberate indifference to a parolee’s 

claim of a mistaken revocation, the Department’s officials 

and employees did not violate a clearly established right to a 

prompt investigation of Davis’ complaint.

(f) Court Properly Dismissed Davis’ § 1983 

Claim Against State Defendants With 

No Responsibility for Parole 

Eligibility Calculations

[53] Vicarious liability is unavailable in a § 1983 action: 

“[A] plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated 

the Constitution.”156 But even if Davis could show that the 

state defendants had knowledge of his complaints and were 

deliberately indifferent to them, he could not show that they 

should have known they would violate a clearly established 

right by doing so. The court therefore did not err in dismissing 

his § 1983 claims against all the defendants.

Because we conclude that the state defendants were entitled 

to qualified immunity against Davis’ § 1983 claims against the 

defendants, we do not reach his assignment that the court erred 

in determining that he had failed to plead his § 1983 claims 

with sufficient specificity.

154 See Hankins v. Lowe, 786 F.3d 603 (7th Cir. 2015).

155 See Morrissey, supra note 105.

156Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 173 L. Ed. 2d 868 

(2009).
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4. Davis’ Opportunity to Amend

Finally, Davis argues that he asked the court for leave to 

amend during the hearing and that the court erred in dismissing his complaint without giving him that opportunity. Under 

§ 6-1115(a), a “party may amend [its] pleading once as a matter of course before a responsive pleading is served.”

The district court did not specify whether it was dismissing 

Davis’ complaint with prejudice, but we agree that this was 

the court’s intent. Nevertheless, there is no need to separately 

consider the appropriateness of that dismissal. Our review of 

Davis’ appeal has subsumed his argument that the court erred 

in dismissing his complaint without an opportunity to amend. 

And that review has led us to the conclusion that an amendment would not cure the defects in Davis’ complaint.

VI. CONCLUSION

Regarding Davis’ negligence claim, we conclude that the 

claim rests on allegations that the state defendants unlawfully reincarcerated him because they miscalculated his parole 

eligibility date. As such, his claim is one arising out of false 

imprisonment, which is a claim barred by sovereign immunity, 

because it is specifically excepted from the State’s waiver of 

immunity under the STCA. Although the defendants did not 

raise this exception to the district court, we conclude that an 

STCA exception can be raised for the first time on appeal and 

considered by a court sua sponte.

Regarding Davis’ § 1983 claims, the court did not err in 

dismissing his claims against the Parole Board, because its 

members were entitled to absolute quasi-judicial immunity 

from suit and the Parole Board itself is an arm of the State 

that cannot be sued in a § 1983 action. The court also did not 

err in dismissing Davis’ § 1983 claims against the remaining 

state defendants, because he cannot show that they violated a 

clearly established right to a prompt investigation of Davis’ 

complaint that he was wrongly reincarcerated.

Affirmed.