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300 Nebraska Report

NESBITT v. FRAKES

Cite as 300 Neb. 1

Thomas Nesbitt, on behalf of himself and all ot

similarly situated Nebraska State Penitent

segregated prisoners, appellant, v

Scott Frakes et al., appelle

___ N.W.2d ___

Filed May 18, 2018. No. S-16-931.

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

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

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

2. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, an appellate court must determine whether it 

has jurisdiction.

3. Courts: Jurisdiction. While it is not a constitutional prerequisite for 

jurisdiction, the existence of an actual case or controversy is necessary 

for the exercise of judicial power.

4. Actions: Moot Question. An action becomes moot when the issues 

initially presented in the proceedings no longer exist or the parties lack 

a legally cognizable interest in the outcome of the action.

5. Moot Question: Words and Phrases. A moot case is one which seeks 

to determine a question that no longer rests upon existing facts or 

rights—i.e., a case in which the issues presented are no longer alive.

6. Moot Question. Mootness refers to events occurring after the filing of 

a suit which eradicate the requisite personal interest in the resolution of 

the dispute that existed at the beginning of the litigation.

7. Moot Question: Jurisdiction: Appeal and Error. Although mootness 

does not prevent appellate jurisdiction, it is a justiciability doctrine that 

can prevent courts from exercising jurisdiction.

8. Moot Question. As a general rule, a moot case is subject to summary dismissal.

9. Injunction: Intent. The purpose of an injunction is to restrain actions 

that have not yet been taken.

Nebraska Supreme Court Online Library

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

07/13/2018 12:08 AM CDT
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10. Injunction. Injunctive relief is preventive, prohibitory, or protective, 

and equity usually will not issue an injunction when the act complained 

of has been committed and the injury has been done.

11. Declaratory Judgments: Moot Question. A declaratory judgment 

action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in 

the outcome of the action.

12. Declaratory Judgments: Justiciable Issues. At the time that the declaration is sought, there must be an actual justiciable issue from which the 

court can declare law as it applies to a given set of facts.

13. Justiciable Issues. A justiciable issue requires a present, substantial 

controversy between parties having adverse legal interests susceptible to 

immediate resolution and capable of present judicial enforcement.

14. Moot Question: Appeal and Error. An appellate court may choose to 

review an otherwise moot case under the public interest exception if it 

involves a matter affecting the public interest or when other rights or 

liabilities may be affected by its determination.

15. Moot Question: Words and Phrases. The public interest exception 

requires a consideration of the public or private nature of the question 

presented, the desirability of an authoritative adjudication for future 

guidance of public officials, and the likelihood of future recurrence of 

the same or a similar problem.

16. Moot Question: Appeal and Error. An application of the public interest exception to the mootness doctrine is inappropriate when the issues 

presented on appeal do not inherently evade appellate review.

17. Class Actions. In order to justify class action treatment, there must exist 

both a question of common or general interest and numerous parties so 

as to make it impracticable to bring all the parties before the court.

18. ____. In determining whether a class action is properly brought, considerable discretion is vested in the trial court.

19. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Lancaster County: Jodi L.

Nelson, Judge. Appeal dismissed

Thomas Nesbitt, pro se.

Douglas J. Peterson, Attorney General, and Timothy R. Ertz 

for appellee.
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Heavican, C.J., Miller-Lerman, and Cassel, JJ., and

and O’Gorman, District Judg

Per Curiam

Thomas Nesbitt brought suit against the Nebraska 

Department of Correctional Services (DCS), its director, and 

various other officials and employees of the DCS, alleging 

that the conditions at the Nebraska State Penitentiary (NSP) 

violate his rights under Nebraska law and that his claims are 

representative of all inmates housed in the segregation units at 

the NSP.

This is an appeal from an order dismissing Nesbitt’s 

amended complaint for failing to state a cause of action. 

Because Nesbitt no longer resides at the NSP, this matter is 

moot and the appeal is dismissed.

BACKGROUND

Nesbitt is an inmate with the DCS. At the time he filed his 

pro se complaint “for class action, declaratory, and injunctive 

relief,” he resided in a segregated unit at the NSP, located 

in Lincoln, Nebraska. Nesbitt’s complaint asserted state law 

claims based on a range of matters within the correctional 

facility’s setting, including overcrowding, cell assignments, 

flooding, and inadequate showering conditions.

Nesbitt, age 71, claims he suffers from a debilitating spinal 

condition which causes him sciatic nerve pain and restless 

leg syndrome. He claims, according to his medical diagnosis, 

he is required to sleep from 2 a.m. to 10 a.m. every day in 

order to prevent paralysis. He asserts prison officials violate 

his rights when they allow the prison to become overpopulated and, as a result, place another prisoner in his “medically 

designed one-man segregation single-cell,” which disturbs his 

circadian rhythm.

Nesbitt’s complaint named as defendants the appellees, eight 

officials and employees with the DCS, in both their official 

and individual capacities, but he served the appellees in their 

individual capacities only. Nesbitt’s praecipe for issuance and 
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service of summons requested service at the DCS and NSP, and 

not at the Attorney General’s office.

The district court dismissed Nesbitt’s original complaint 

under Neb. Ct. R. Pldg. § 6-1112(b)(6), finding that the appellees had been served in only their individual capacities and 

that the complaint failed to state a claim for relief against any 

of the appellees personally. The court denied Nesbitt’s request 

for class action status and motion for restraining order. Nesbitt 

filed an amended verified complaint, in which he included 

additional claims related to prison conditions. He sought temporary and permanent injunctive relief and declaratory judgment—the same relief requested in his initial complaint. The 

appellees filed another motion to dismiss, and the court again 

dismissed the complaint under § 6-1112(b)(6), noting that the 

new pleading had the same defects as the original and that no 

further opportunity to amend should be permitted.

Nesbitt filed a motion to alter or amend the court’s judgment, in which he stated that he had been transferred to 

the Omaha Correctional Center located in Omaha, Nebraska. 

Nesbitt confirmed this fact at the hearing on his motion, which 

motion the court overruled. Nesbitt timely appealed.

ASSIGNMENTS OF ERROR

Nesbitt assigns that the court erred in (1) denying his 

verified complaint; (2) failing to properly evaluate his claims 

under the notice pleading system; and (3) refusing to (a) certify class members, (b) appoint legal counsel, and (c) issue a 

restraining order and temporary injunction.

STANDARD OF REVIEW

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

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.1

1 Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900 

N.W.2d 909 (2017).
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ANALYSIS

Mootne

[2,3] Before reaching the legal issues presented for review, 

an appellate court must determine whether it has jurisdiction.2

While it is not a constitutional prerequisite for jurisdiction, 

the existence of an actual case or controversy is necessary for 

the exercise of judicial power.3

The appellees assert that Nesbitt’s claims seeking injunctive 

relief and declaratory judgment are moot, because he has been 

transferred to a different correctional facility. Thus, we must 

first determine whether Nesbitt’s transfer to a different facility 

has rendered this appeal moot.

[4-8] An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack 

a legally cognizable interest in the outcome of the action.4

A moot case is one which seeks to determine a question that 

no longer rests upon existing facts or rights—i.e., a case in 

which the issues presented are no longer alive.5 Mootness 

refers to events occurring after the filing of a suit which 

eradicate the requisite personal interest in the resolution of 

the dispute that existed at the beginning of the litigation.6

Although mootness does not prevent appellate jurisdiction, it 

is a justiciability doctrine that can prevent courts from exercising jurisdiction.7

 As a general rule, a moot case is subject 

to summary dismissal.8

2 See Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).

3 Johnston v. Nebraska Dept. of Corr. Servs., 270 Neb. 987, 709 N.W.2d 321 

(2006).

4 Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).

5 Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898 

N.W.2d 366 (2017).

6 Id.

7 Id.

8 Id.
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[9,10] In considering Nesbitt’s specific claims, we note that 

the purpose of an injunction is to restrain actions that have 

not yet been taken.9 On several previous occasions, we have 

recognized that “‘injunctive relief is preventive, prohibitory, 

or protective, and equity usually will not issue an injunction 

when the act complained of has been committed and the injury 

has been done.’”10 We have also said:

“‘Since the purpose of an injunction is not to afford a 

remedy for what is past but to prevent future mischief, 

not being used for the purpose of punishment or to compel persons to do right but merely to prevent them from 

doing wrong, rights already lost and wrongs already perpetrated cannot be corrected by injunction.’”11

In Putnam v. Fortenberry,

12 the plaintiff sought to enjoin 

the city of Lincoln from selling a publicly owned hospital to 

a private company. A few days after the plaintiff had brought 

her action, the city council passed an ordinance approving the 

sale. Within 3 weeks, the city and the private company had 

entered into an affiliation agreement that set a closing date. 

Three weeks later, the court denied the plaintiff’s request for 

temporary and permanent injunctive relief. Before the plaintiff appealed, the city and the private company had closed 

the sale and the title to the hospital was transferred. We said 

“[b]ecause the act which [the plaintiff] sought to enjoin is 

complete, our opinion on the trial court’s denial of injunction 

would be nugatory. We, therefore, conclude that the issue of 

injunctive relief is moot.”13

9 Stewart, supra note 4.

10 Stoetzel & Sons v. City of Hastings, 265 Neb. 637, 645, 658 N.W.2d 636, 

643 (2003).

11 Putnam v. Fortenberry, 256 Neb. 266, 271, 589 N.W.2d 838, 843 (1999) 

(quoting Conrad v. Kaup, 137 Neb. 900, 291 N.W. 687 (1940)).

12 Putnam, supra note 11.

13 Id. at 272, 589 N.W.2d at 843.
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The same analysis applies in this case. If Nesbitt had a personal interest in seeking improved conditions at the NSP, his 

interest ceased upon his transfer to another facility. Nesbitt is 

no longer subject to the conditions at the NSP, and the injunctive relief he seeks has been rendered moot.

[11-13] In addition to seeking an injunction against his housing conditions, Nesbitt sought a declaratory judgment. Thus, 

we must next determine whether declaratory judgment is also 

moot. A declaratory judgment action becomes moot when the 

issues initially presented in the proceedings no longer exist or 

the parties lack a legally cognizable interest in the outcome of 

the action.14 At the time that the declaration is sought, there 

must be an actual justiciable issue from which the court can 

declare law as it applies to a given set of facts.15 A justiciable 

issue requires a present, substantial controversy between parties having adverse legal interests susceptible to immediate 

resolution and capable of present judicial enforcement.16

In Rath v. City of Sutton,

17 the plaintiff, Marlowe Rath, 

brought an action for declaratory relief seeking to enjoin the 

expenditure of public funds pursuant to a contract he claimed 

was illegal. Rath argued that notwithstanding completion of 

the project and payment of all funds, relief was still available, because a taxpayer had a right to recover the funds 

expended under an illegal contract. Rath rightfully contended 

that a “‘suit that seeks damages for harm caused by past practices is not rendered moot by the cessation of the challenged 

conduct.’”18 However, Rath did not seek to recover the funds 

14 Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).

15 Board of Trustees v. City of Omaha, 289 Neb. 993, 858 N.W.2d 186 

(2015).

16 Id.

17 Rath v. City of Sutton, 267 Neb. 265, 673 N.W.2d 869 (2004).

18 Id. at 274, 673 N.W.2d at 880. See, also, CMM Cable Rep. v. Ocean 

Coast Properties, Inc., 48 F.3d 618 (1st Cir. 1995); Curtis Indus., Inc. v. 

Livingston, 30 F.3d 96 (8th Cir. 1994).
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that may have been illegally expended under the contract, but 

only sought injunctive and declaratory relief. We held that in 

order to be entitled to recoup illegally expended funds, Rath 

was required to specifically request such relief in his petition. 

We further held that a declaration by this court on the legality of the contract would be advisory, because it would have 

no effect on the parties in this case, and that therefore, Rath’s 

request for declaratory relief was moot.

In the instant matter, Nesbitt did not seek monetary damages. As a result, his claim for declaratory judgment would 

suffer from the same infirmities as a claim for injunctive relief. 

In this case, a declaratory judgment would not undo what has 

already been completed, but would be nothing more than advisory, and “declaratory relief cannot be used to obtain a judgment which is merely advisory.”19 Nesbitt’s request for declaratory judgment is also moot.

More directly upon the issue of prisoner litigation, in 

Johnston v. Nebraska Dept. of Corr. Servs.,

20 we considered an 

inmate’s claim concerning placement within a prison facility. 

Sean Johnston, an inmate at the NSP, was placed on administrative confinement after a misconduct report was filed against 

him. The director of the DCS affirmed the placement decision, 

despite the misconduct report being dismissed for lack of evidence. Johnston then sought judicial review of the director’s 

decision, alleging that the decision violated the Due Process 

Clauses of the federal and state Constitutions. The district court 

dismissed Johnston’s action on the ground that a classification decision is not subject to review under the Administrative 

Procedure Act. On appeal from the district court’s order, the 

State filed a motion to dismiss, alleging that Johnston had been 

removed from administrative confinement and transferred to 

another facility where he was placed into the general population. We granted the State’s motion, holding that an inmate’s 

19 Galyen v. Balka, 253 Neb. 270, 276, 570 N.W.2d 519, 524 (1997).

20 Johnston, supra note 3.
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transfer from administrative confinement status to the general 

population moots any argument related to the inmate’s initial 

placement in administrative confinement.21

Nearly 20 years ago, in Smith v. Hundley,

22 the U.S. Eighth 

Circuit Court of Appeals considered an issue nearly identical 

to Nesbitt’s. An inmate at the Iowa State Penitentiary, Duane 

Joseph Smith, filed suit against the state prison officials under 

42 U.S.C. § 1983 (1994). Smith sought injunctive and declaratory relief, claiming his First Amendment rights were violated 

because he was precluded from purchasing items necessary 

to practice his “Seax-Wicca faith.”23 During the legal proceedings, Smith was transferred to another facility. The court 

held that an inmate’s claims for declaratory and injunctive 

relief to improve prison conditions become moot when he or 

she is transferred to another facility and no longer subject to 

those conditions.24

Here, Nesbitt’s claims for injunctive relief and declaratory judgment rest upon his allegation that overcrowding, cell 

assignments, flooding, and inadequate showering conditions 

negatively affect his unique physical ailments. Because Nesbitt 

has been transferred to another facility and is no longer subject to those conditions, his claims do not rest upon existing 

facts. Thus, as to him, it is no longer necessary to consider the 

issue of whether a court can review and countermand Nesbitt’s 

housing conditions at the NSP.

[14-16] Though we conclude that Nesbitt’s claims for 

declaratory judgment and injunctive relief are moot, an appellate court may choose to review an otherwise moot case under 

the public interest exception if it involves a matter affecting 

21 Id.

22 Smith v. Hundley, 190 F.3d 852 (8th Cir. 1999).

23 Id. at 853.

24 Smith v. Hundley, supra note 22. See, also, Gladson v. Iowa Dept. of 

Corrections, 551 F.3d 825 (8th Cir. 2009); Martin v. Sargent, 780 F.2d 

1334 (8th Cir. 1985); Wycoff v. Brewer, 572 F.2d 1260 (8th Cir. 1978).
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the public interest or when other rights or liabilities may be 

affected by its determination.25 This exception requires a consideration of the public or private nature of the question presented, the desirability of an authoritative adjudication for 

future guidance of public officials, and the likelihood of future 

recurrence of the same or a similar problem.26 An application of the public interest exception to the mootness doctrine 

is inappropriate when the issues presented on appeal do not 

inherently evade appellate review.27

We decline to apply the public interest exception in this 

case. It is clear that the issues raised by Nesbitt are capable of 

repetition, as other inmates are subject to the complained-of 

housing conditions at the NSP. If a similar claim is brought, 

appellate judicial review is likely to occur. However, Nesbitt 

has not demonstrated a reasonable likelihood that he will be 

subject to the housing conditions existing at NSP, as he is no 

longer residing in that facility. In addition, Nesbitt’s allegations 

detailing how the housing conditions affect his unique personal 

medical condition render the dispute less public in nature 

and more private in nature. As a result, we decline to apply 

the public interest exception to Nesbitt’s claims. Therefore, 

no exception applies, and we must dismiss Nesbitt’s appeal 

as moot.

Class Act

[17,18] Nesbitt further contends that his complaint is filed 

in his own behalf and on behalf of all others similarly situated. 

Class actions are authorized under Neb. Rev. Stat. § 25-319 

(Reissue 2016), which provides: “When the question is one 

of a common or general interest of many persons, or when 

the parties are very numerous, and it may be impracticable to 

25 Al-Ameen v. Frakes, 293 Neb. 248, 876 N.W.2d 635 (2016).

26 Id.

27 Johnston, supra note 3.
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bring them all before the court, one or more may sue or defend 

for the benefit of all.” In order to justify class action treatment, there must exist “‘both a question of common or general 

interest and numerous parties so as to make it impracticable 

to bring all the parties before the court.’”28 In determining 

whether a class action is properly brought, considerable discretion is vested in the trial court.29

In Miller v. City of Omaha,

30 we stated that an action may 

not be maintained as a class action by a plaintiff on behalf of 

himself or herself and others unless he or she has the power 

as a member of the class to satisfy a judgment on behalf of all 

members of the class.

Because Nesbitt’s claims for injunctive relief and declaratory judgment are moot, he lacks commonality with members 

of the purported class on whose behalf he sought to litigate 

similar claims. The district court did not err in concluding that 

because Nesbitt could not maintain his individual cause of 

action against the appellees, he was unqualified to represent 

the purported class.

Pleadin

[19] Nesbitt argues that his “pro se” complaint should be 

held to a less stringent standard and that he set forth short, 

plain statements of his claims for relief. Because we conclude 

that Nesbitt’s claims are moot, we do not reach this pleading issue. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it.31

28 Lynch v. State Farm Mut. Auto. Ins. Co., 275 Neb. 136, 144, 745 N.W.2d 

291, 298 (2008) (emphasis in original) (quoting Hoiengs v. County of 

Adams, 245 Neb. 877, 516 N.W.2d 223 (1994)).

29 Lynch, supra note 28.

30 Miller v. City of Omaha, 253 Neb. 798, 573 N.W.2d 121 (1998).

31 Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb. 43, 907 

N.W.2d 1 (2018).
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CONCLUSION

We conclude that Nesbitt’s claims for injunctive relief and 

declaratory judgment are moot, as he is no longer subject to 

the housing conditions of which he complains. Regarding his 

claim for certification of a class action, because his underlying claims are moot and have been dismissed, Nesbitt lacks 

commonality with members of the purported class on whose 

behalf he sought to litigate similar claims. And in regard to 

his argument that he has stated claim upon which relief may 

be granted if tested under lenient pleading standards, we 

decline to reach the issue, as it is not necessary to adjudicate 

this dispute.

Appeal dismissed

Funke, J., participating on brief

Wright and Stacy, JJ., not participatin