Schaeffer v. Frakes

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/27/2023 09:04 AM CST

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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

Bernard Schaeffer, appellant, v. Scott Frakes,
in his official capacity as director of the
Nebraska Department of Correctional
Services, et al., appellees.
___ N.W.2d ___

Filed January 27, 2023. No. S-21-930.

1. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing
an order dismissing a complaint, the appellate court accepts as true
all facts which are well pled and the proper and reasonable inferences
of law and fact which may be drawn therefrom, but not the plain-
tiff’s conclusion.
3. Claim Preclusion: Issue Preclusion. The applicability of claim and
issue preclusion is a question of law.
4. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature,
and courts have a duty to determine whether they have subject mat-
ter jurisdiction over a matter. Subject matter jurisdiction is a question
of law.
5. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
6. Judgments: Jurisdiction: Claim Preclusion. Claim preclusion bars
relitigation of any right, fact, or matter directly addressed or necessar-
ily included in a former adjudication if (1) the former judgment was
rendered by a court of competent jurisdiction, (2) the former judgment
was a final judgment, (3) the former judgment was on the merits, and
(4) the same parties or their privies were involved in both actions.
7. Claim Preclusion. The doctrine of claim preclusion bars relitigation not
only of those matters actually litigated, but also of those matters which
might have been litigated in the prior action.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

8. ____. The doctrine of claim preclusion rests on the necessity to termi-
nate litigation and on the belief that a person should not be vexed twice
for the same cause.
9. Judgments: Claim Preclusion. For purposes of claim preclusion, a
judgment on the merits is one which is based on legal rights, as
distinguished from mere matters of practice, procedure, jurisdiction,
or form.
10. Administrative Law: Immunity: Waiver: Jurisdiction: Declaratory
Judgments. Neb. Rev. Stat. § 84-911 (Reissue 2014) of the
Administrative Procedure Act provides a limited statutory waiver of
sovereign immunity and confers subject matter jurisdiction for a declar-
atory judgment concerning the validity of a state agency’s rule or
regulation.
11. Administrative Law: Words and Phrases. The Administrative
Procedure Act defines a “rule or regulation” as any standard of general
application adopted by an agency in accordance with the authority con-
ferred by statute.
12. Administrative Law: Jurisdiction: Statutes. The Administrative
Procedure Act does not confer jurisdiction for declaratory relief con-
cerning judicial interpretation of a statute.

Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Gerald L. Soucie, of Soucie Law Office, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith,
Senior Assistant Attorney General, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Funke, J.
INTRODUCTION
Bernard Schaeffer, an inmate in the Nebraska Department of
Correctional Services system, appeals the decision of the dis-
trict court for Lancaster County, which dismissed his complaint
with prejudice. Schaeffer sued the department and several of
its officials (collectively DCS) under 42 U.S.C. § 1983 (2018)
and the Administrative Procedure Act (APA) regarding his
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

tentative release date. The district court found that his § 1983
claims were barred by claim preclusion because they could
have been raised in his prior action regarding his parole eligi-
bility date or, alternatively, barred under Wilkinson v. Dotson 1
as a challenge to the fact or duration of his confinement. The
district court also found that Schaeffer’s APA claims were
barred by sovereign immunity. Finding no error, we affirm.

BACKGROUND
Schaeffer’s Convictions and Sentences
The facts regarding Schaeffer’s three convictions and sen-
tences are set forth in greater detail in our earlier opinion
in Schaeffer v. Frakes. 2 For purposes of the present appeal,
we note only that Schaeffer, while a juvenile, was sentenced
to life imprisonment for first degree murder in Hall County,
Nebraska, in 1977. In 1979, he was sentenced to 1 to 2 years’
imprisonment for assault in Lancaster County, Nebraska. In
1983, he was sentenced to 12 to 40 years’ imprisonment for
another assault in Lancaster County. Each assault sentence was
ordered to be served consecutively to his other sentences. DCS
combined these sentences into a single sentence of imprison-
ment for life plus 13 to 42 years.
Schaeffer subsequently sought postconviction relief from
the district court in Hall County. His first motion was denied
without an evidentiary hearing. 3 However, his second motion,
alleging that his life sentence was void or voidable under
Miller v. Alabama 4 and related cases, resulted in his murder
sentence being vacated in 2016. In 2017, he was resentenced
to 70 to 90 years’ imprisonment, with credit for time served
1
Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242, 161 L. Ed. 2d 253
(2005).
2
Schaeffer v. Frakes, 306 Neb. 904, 947 N.W.2d 714 (2020).
3
State v. Schaeffer, 218 Neb. 786, 359 N.W.2d 106 (1984).
4
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

since his arrest in 1977. Schaeffer filed a direct appeal but later
moved to dismiss it.

§ 1983 Suit Regarding Parole
Eligibility Date
Schaeffer then sued DCS under § 1983 regarding his parole
eligibility date. DCS determined that Schaeffer was not eli-
gible for parole until February 20, 2033, based on 1975 Neb.
Laws, L.B. 567, the good time law in effect when he was ini-
tially sentenced. However, Schaeffer asserted that his parole
eligibility date should have been November 28, 2018, based
on 2011 Neb. Laws, L.B. 191, the good time law in effect
when he was resentenced. Schaeffer sought a declaration that
DCS’ determination of his parole eligibility date violated
his rights under the 8th and 14th Amendments to the U.S.
Constitution, as well as an order barring DCS from enforcing
the 2033 date.
The district court dismissed Schaeffer’s complaint without
prejudice for failure to state a claim upon which relief can be
granted, because it viewed his assertion of an earlier parole
eligibility date as an attack on the duration of his confine-
ment. As such, it found that Schaeffer’s action was barred
because Wilkinson prohibits an inmate in state custody from
using a § 1983 action to challenge “‘the fact or duration
of his confinement.’” 5 Schaeffer appealed, and we affirmed
without reaching that issue. Instead, we found that Schaeffer
“failed to adequately allege that his federal constitutional rights
were violated.” 6

Current Suit Regarding
Tentative Release Date
Schaeffer next sued DCS under § 1983 and the APA, alleg-
ing that DCS violated his 8th and 14th Amendment rights to
5
Wilkinson, supra note 1, 544 U.S. at 78.
6
Schaeffer, supra note 2, 306 Neb. at 905, 947 N.W.2d at 718.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

have “his sentence determined consistent with the statutes
and case law of Nebraska.” DCS determined that Schaeffer’s
tentative release date was October 21, 2043, although he
asserted that it should have been no later than May 26, 2022.
Schaeffer argued that when his murder sentence was vacated,
it no longer existed as a matter of law, and that his assault
sentences became effective as of the dates when they were
imposed. As a result, he argued, his assault sentences have
been completed, and DCS cannot “combine” them with his
murder sentence when determining his tentative release date.
He also argued that he is entitled to good time under the more
liberal good time law in effect when he was resentenced,
rather than the good time law in effect when he was ini-
tially sentenced.
With his § 1983 claims, Schaeffer sought a declaration
that DCS must issue discharge certificates for his assault
sentences and implement his murder sentence under the later
good time law. Relatedly, with his APA claims, he sought
a declaration that the “‘threatened application’ of his tenta-
tive discharge date” as determined by DCS under its policy
No. 104.08 (Policy 104.08) would violate his constitutional
rights. Policy 104.08 states, in relevant part, that there are
“seven separate active Nebraska laws . . . governing the
release of every inmate committed to [DCS]” and that these
statutes, together with the opinions of the Nebraska courts
and the Attorney General, “form the basis for all time calcula-
tions.” (Emphasis omitted.)
DCS moved to dismiss Schaeffer’s complaint pursuant to
Neb. Ct. R. Pldg. § 6-1112(b)(1) and (6) because of, alterna-
tively, sovereign immunity, failure to state a claim, or claim
preclusion. Schaeffer, in turn, sought partial summary judg-
ment regarding the discharge of his assault sentences. The par-
ties filed briefs, which apparently discussed 68 Neb. Admin.
Code, ch. 1 (2008), as well as Policy 104.08. However, those
briefs are not part of the record on appeal.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

At the hearing on the motion to dismiss, DCS argued that
the entire matter was barred by claim preclusion, because
Schaeffer could have raised his claims regarding his tenta-
tive release date in his prior action regarding his parole eli-
gibility date. DCS also argued that Schaeffer’s § 1983 claims
are barred under Wilkinson. In addition, DCS argued that if
Schaeffer’s APA claims are not subject to claim preclusion,
they fail, because Schaeffer does not challenge the valid-
ity of a rule or regulation, but, rather, the application of the
law to determine his tentative release date. DCS asserted that
Schaeffer keeps coming up with “new theories” to “litigate the
same issue” as to the duration of his imprisonment.
Schaeffer countered that “[t]his case is entirely different”
from his prior action regarding his parole eligibility date,
because it rests on an “entirely different theory involving a
different statute.” Schaeffer asserted that if he had prevailed in
the prior action, he would not necessarily have been released;
however, if he prevailed now, “he should be getting out.”
Schaeffer conceded that he was not trying to invalidate a
rule or regulation but argued that the APA permits challenges
where the threatened application of a rule or regulation inter-
feres with the petitioner’s legal rights. He maintained that
DCS’ rules and regulations call for DCS “to follow [State]
statutes” and that DCS failed to do so, thereby depriving him
of his liberty.
The district court agreed with DCS. It found that Schaeffer’s
§ 1983 claims were subject to claim preclusion, because a
court of competent jurisdiction rendered a final judgment on
the merits in his challenge to his parole eligibility date and the
same parties or their privies were involved in both actions. It
also found that Schaeffer could have raised his claims regard-
ing his tentative release date in the prior action. In addition, the
court found that Schaeffer’s § 1983 claims were barred under
Wilkinson because “he is challenging the very fact or dura-
tion of his confinement and seeking earlier release.” Further,
it found that Schaeffer’s APA claims, which it construed to
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

encompass both Policy 104.08 and 68 Neb. Admin. Code,
ch. 1, were foreclosed under our holding in Perryman v.
Nebraska Dept. of Corr. Servs. 7 because Schaeffer challenges
DCS’ “interpretation of state law,” and not the validity of a rule
or regulation.
Schaeffer appealed to the Nebraska Court of Appeals, which
overruled DCS’ motion for summary affirmance. DCS then
petitioned to transfer the appeal to this court and bypass
review by the Court of Appeals, because the case involved the
continued validity of Perryman, claim preclusion after our ear-
lier decision regarding Schaeffer’s parole eligibility date, and
judicial efficiency, given the volume of prisoner litigation. We
granted bypass.
While this appeal was pending, Schaeffer filed a habeas
action against DCS, seeking his release. 8 An appeal of the dis-
trict court’s decision in that case is pending.

ASSIGNMENTS OF ERROR
Schaeffer assigns, restated and consolidated, that the district
court erred in (1) dismissing his § 1983 claims on the grounds
that they are subject to claim preclusion or, alternatively,
barred under Wilkinson; (2) dismissing his APA claims on the
basis of sovereign immunity; and (3) dismissing his complaint
without granting him leave to amend.

STANDARD OF REVIEW
[1-3] A district court’s grant of a motion to dismiss is
reviewed de novo. 9 When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
7
Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241
(1997), disapproved on other grounds, Johnson v. Clarke, 258 Neb. 316,
603 N.W.2d 373 (1999).
8
See In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017)
(court may consider other lawsuits filed by plaintiff).
9
Gray v. Frakes, 311 Neb. 409, 973 N.W.2d 166 (2022).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plaintiff’s
conclusion. 10 The applicability of claim and issue preclusion is
a question of law. 11
[4] Sovereign immunity is jurisdictional in nature, and
courts have a duty to determine whether they have subject mat-
ter jurisdiction over a matter. 12 Subject matter jurisdiction is a
question of law. 13
[5] An appellate court independently reviews questions of
law decided by a lower court. 14

ANALYSIS
§ 1983 Claims
Schaeffer argues that the district court erred in finding that
his § 1983 claims regarding the discharge of his assault sen-
tences and the accrual of good time on his murder sentence
are subject to claim preclusion, because our earlier decision
regarding his parole eligibility date did not address the merits
of those claims. He also argues that his present claims could
not have been raised in his prior action because of DCS griev-
ance rules, requirements for administrative exhaustion, and
our decision in TFF, Inc. v. SID No. 59. 15 DCS counters that
the judgment in the prior action has preclusive effect and
that Schaeffer could have brought his claims about his tenta-
tive release date in that prior action. Schaeffer and DCS also
disagree as to whether Schaeffer’s § 1983 claims are barred
under Wilkinson.
10
Id.
11
Hill v. AMMC, Inc., 300 Neb. 412, 915 N.W.2d 29 (2018).
12
Heist v. Nebraska Dept. of Corr. Servs., 312 Neb. 480, 979 N.W.2d 772
(2022).
13
See id.
14
Id.
15
TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

We agree with DCS that Schaeffer’s § 1983 claims are
subject to claim preclusion. Because we find this assignment
of error to be dispositive as to those claims, we need not
reach Schaeffer’s other assignment of error as to Wilkinson.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. 16
Section 1983 provides a civil remedy for deprivations of
federally protected rights caused by persons acting under color
of state law. 17 The elements of, and defenses to, a § 1983
action are defined by federal law. 18 State courts are bound by
definitive U.S. Supreme Court decisions or a consensus of
federal court holdings on the substantive requirements of a
§ 1983 claim or defense. 19 Claim preclusion is an affirmative
defense under federal law. 20 However, the U.S. Supreme Court
has held that under the “full faith and credit” statute, 28 U.S.C.
§ 1738 (2018), federal courts must look to the law of the state
in which a prior state court judgment was issued when deter-
mining that judgment’s preclusive effect in a § 1983 action. 21
Depending on state law, this includes preclusion “not only
of issues raised, but of issues that could have been raised.” 22
Accordingly, we look to the Nebraska law of claim preclusion,
set forth below.
[6-8] The doctrine of claim preclusion bars relitigation of
any right, fact, or matter directly addressed or necessarily
16
State v. Moore, 312 Neb. 263, 978 N.W.2d 327 (2022).
17
Abbott v. City of Bellevue, 310 Neb. 496, 967 N.W.2d 95 (2021).
18
White v. Busboom, 297 Neb. 717, 901 N.W.2d 294 (2017).
19
Id.
20
See Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161, 171 L. Ed. 2d 155
(2008).
21
See, e.g., Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308
(1980).
22
Minneapolis Auto Parts Co. v. City of Minneapolis, 739 F.2d 408, 409 n.2
(8th Cir. 1984).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

included in a former adjudication if (1) the former judg-
ment was rendered by a court of competent jurisdiction, (2)
the former judgment was a final judgment, (3) the former
judgment was on the merits, and (4) the same parties or
their privies were involved in both actions. 23 The doctrine
bars relitigation not only of those matters actually litigated,
but also of those matters which might have been litigated
in the prior action. 24 The doctrine rests on the necessity to
terminate litigation and on the belief that a person should
not be vexed twice for the same cause. 25 Whether the sub-
sequent suit alleges the same cause of action as the prior
suit is determined by whether the right to be vindicated rests
upon the same operative facts; if so, the same cause of action
has been alleged, even if different theories of recovery are
relied upon. 26
Claim preclusion is an affirmative defense under Nebraska
law, as it is under federal law. 27 However, an affirmative defense
may be asserted in a motion filed pursuant to § 6-1112(b)(6)
when the defense appears on the face of the complaint, as
it does here. 28 Additionally, a court may take judicial notice
of “‘“matters of public record”’” without converting a rule
12(b)(6) motion to dismiss into a motion for summary judg-
ment. 29 Thus, the district court may, and in this case did, con-
sider the dismissal order in Schaeffer’s prior action regarding
23
Marie v. State, 302 Neb. 217, 922 N.W.2d 733 (2019).
24
Id.
25
Id.
26
Farmers State Bank v. Germer, 231 Neb. 572, 437 N.W.2d 463 (1989).
27
See Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47
(2010).
28
Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900
N.W.2d 909 (2017).
29
See Ferer v. Erickson, Sederstrom, 272 Neb. 113, 121, 718 N.W.2d
501, 508 (2006), modified on denial of rehearing 272 Neb. 470, 759
N.W.2d 75.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

his parole eligibility date when determining that his § 1983
claims were subject to claim preclusion.
In the present case, the parties do not appear to dispute that
the former judgment was rendered by a court of competent
jurisdiction, the former judgment was a final judgment, and
the same parties or their privies were involved in both actions.
Rather, Schaeffer’s argument, liberally construed, appears to
be that the former judgment was not on the merits. He argues
that his prior action was “decided on [a] procedural question
because the determination of a parole eligibility date . . . by
[DCS] did not involve a ‘constitutionally protected’ liberty
interest.” 30 He also argues that the present cause of action is
different because it has a different statutory basis. Those argu-
ments are without merit.
[9] We have previously found that for purposes of claim
preclusion, a judgment on the merits is one which is based on
legal rights, as distinguished from mere matters of practice,
procedure, jurisdiction, or form. 31 However, Schaeffer has not
cited, nor have we identified, any cases that would support
viewing as procedural a judgment, like that in Schaeffer’s case,
dismissing an action for failure to state a claim upon which
relief can be granted because the claimant failed to establish
a constitutionally protected interest. To the contrary, we have
previously found that a judgment of dismissal based on the
claimant’s failure to state a claim constitutes a judgment on
the merits even where by amendments a good cause of action
might be stated. 32 In contrast, judgments of dismissal for lack
of personal or subject matter jurisdiction, failure to effect
proper or timely service, failure to join a necessary party, or
30
Reply brief for appellant at 9.
31
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
32
Swift v. Dairyland Ins. Co., 250 Neb. 31, 547 N.W.2d 147 (1996);
Schieffer v. Catholic Archdiocese of Omaha, 244 Neb. 715, 508 N.W.2d
907 (1993). See, also, Cole v. Clarke, 10 Neb. App. 981, 641 N.W.2d 412
(2002).
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313 Nebraska Reports
SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

failure to prosecute have been found to constitute judgments on
jurisdictional or procedural grounds. 33
Admittedly, Schaeffer’s prior complaint was dismissed
without prejudice, and we have previously opined that a
judgment of dismissal without prejudice does not constitute
a judgment on the merits. 34 However, our earlier opinions
taking this view have generally involved dismissals without
prejudice on grounds other than failure to state a claim upon
which relief can be granted. 35 As such, we agree with the
courts in other jurisdictions which have found that a judgment
of dismissal without prejudice can constitute a judgment on
the merits. 36
For example, in Robinette v. Jones, 37 the U.S. Court of
Appeals for the Eighth Circuit found that a prior decision
by a federal district court dismissing the plaintiffs’ § 1983
claims precluded further litigation of the same issues in a
33
RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 (2014)
(lack of personal jurisdiction); Vopalka v. Abraham, 260 Neb. 737, 619
N.W.2d 594 (2000) (failure to serve petition); Philpott v. Brown, 16 Neb.
387, 20 N.W. 288 (1884) (failure to prosecute); Jamie N. v. Kenneth M., 23
Neb. App. 1, 867 N.W.2d 290 (2015) (failure to join necessary party); In
re Guardianship of David G., 18 Neb. App. 918, 798 N.W.2d 131 (2011)
(lack of subject matter jurisdiction).
34
See, Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013);
Dworak v. Farmers Ins. Exch., 269 Neb. 386, 693 N.W.2d 522 (2005).
35
Young, supra note 34 (dismissal at request of both parties after court
approved postmarital agreements); Dworak, supra note 34 (dismissal in
accordance with district court’s case progression standards); Durousseau
v. Nebraska State Racing Commission, 194 Neb. 288, 231 N.W.2d 566
(1975) (dismissal for procedural deficiencies); Cinfel v. Malena, 67
Neb. 95, 93 N.W. 165 (1903) (dismissal immediately after suit was
commenced where property had been returned).
36
See, e.g., Duffner v. City of St. Peters, Missouri, 930 F.3d 973 (8th
Cir. 2019) (applying Missouri law); Germain Real Estate Co., LLC v.
HCH Toyota, LLC, 778 F.3d 692 (8th Cir. 2015) (applying Arkansas
law); Turner v. First New Mexico Bank, 2015 NMCA 068, 352 P.3d 661
(2015).
37
Robinette v. Jones, 476 F.3d 585 (8th Cir. 2007) (applying Missouri law).
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SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

subsequent § 1983 action brought by the plaintiffs in state
court and then removed to federal court. The plaintiffs’ prior
action was dismissed without prejudice on immunity grounds. 38
However, the Eighth Circuit concluded that even where a dis-
missal is without prejudice, “‘“an issue actually decided in a
non-merits dismissal is given preclusive effect in a subsequent
action between the same parties.”’” 39
As to Schaeffer’s contention that his present action involves
a different theory than his prior action, Nebraska courts have
previously rejected the argument that claim preclusion can
be avoided by alleging a different statutory basis or a dif-
ferent theory of recovery in a subsequent cause of action. 40
Schaeffer’s present theory alleges a violation of substantive
due process, and he cites to Neb. Rev. Stat. § 83-1,118(3)
(Cum. Supp. 2022) as the basis for his claims. This is different
from his prior action, where he alleged a violation of proce-
dural due process and cited to Neb. Rev. Stat. §§ 83-1,107(4)
(Cum. Supp. 2022), 83-1,110 (Reissue 2014), and 83-1,111
(Cum. Supp. 2022). However, both his prior and present
actions rest on the same operative facts; namely, DCS’ alleged
failure to follow state law when determining his sentence.
Also, both actions seek to vindicate Schaeffer’s 8th and 14th
Amendment rights. Thus, they are the same cause of action,
even though Schaeffer alleges a different theory here.
There is also no merit to Schaeffer’s argument that the DCS
grievance rules, coupled with the requirements for admin-
istrative exhaustion, forced him to raise his claims regard-
ing his parole eligibility date and his tentative release date
piecemeal. DCS rules prohibit inmates from addressing more
than one issue on a formal grievance. 41 However, Schaeffer
38
Id.
39
Id. at 589.
40
See, e.g., Farmers State Bank, supra note 26; Graham v. Waggener, 219
Neb. 907, 367 N.W.2d 707 (1985); Cole, supra note 32.
41
68 Neb. Admin. Code, ch. 2, § 006.03 (2008).
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SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

has not cited any limitation in the DCS rules or elsewhere
upon the number of formal grievances that an inmate may
submit at one time. As such, there would not appear to have
been any barrier to Schaeffer’s filing grievances about both
his parole eligibility date and his tentative release date simul-
taneously. Then, once the DCS grievance procedures had been
completed, all those claims could have been addressed in the
same lawsuit, assuming that the Prison Litigation Reform
Act of 1995’s requirements for administrative exhaustion in
§ 1983 actions “with respect to prison conditions” were seen
to apply. 42
Schaeffer’s argument that TFF, Inc. 43 precluded raising his
claims regarding his parole eligibility date in his prior action,
because “[r]elief granted under the theory in Schaeffer I would
have precluded . . . relief under [the] theory in this case” is
similarly unavailing. 44 TFF, Inc. concerned the doctrine of
judicial estoppel, which can bar a party from asserting a claim
that is inconsistent with a prior position unequivocally asserted
by that party and adopted by a court against the same or dif-
ferent party in a later proceeding. 45 Nothing in that opinion
precludes a party from pleading alternate theories of relief in
an action, so long as none of the theories is inconsistent with
a previous position upon which the party obtained a judg-
ment. To the contrary, TFF, Inc. expressly recognized that
Neb. Ct. R. Pldg. § 6-1108(e)(2) permits parties to plead “as
many separate claims or defenses as the party has regardless
of consistency.”
As such, Schaefer’s first assignment of error is without
merit.
42
See 42 U.S.C. § 1997e(a) (2018). See, also, Foulk v. Charrier, 262 F.3d
687 (8th Cir. 2001) (discussing what constitutes action regarding prison
conditions).
43
TFF, Inc., supra note 15.
44
Reply brief for appellant at 8.
45
TFF, Inc., supra note 15.
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SCHAEFFER V. FRAKES
Cite as 313 Neb. 337

APA Claims
Schaeffer argues that the district court erred in finding that
his APA claims regarding Policy 104.08 are barred by sovereign
immunity. He maintains that Richardson v. Clarke 46 “expressly
rejected the ‘sovereign immunity’ defense in the determina-
tion of goodtime applicable to an inmate’s sentence.” 47 DCS
counters that Policy 104.08 is not a rule or regulation “subject
to suit under § 84-911.” 48 We agree with DCS that the courts
lack subject matter jurisdiction to hear Schaeffer’s claims as to
the department.
We have long recognized a state’s immunity from suit as
a fundamental aspect of sovereignty. 49 A suit against a state
agency is a suit against the State, and as such, state agencies
can assert the State’s sovereign immunity against suit. 50 Suits
against state officials in their official capacities are also suits
against the State if they seek to compel an affirmative act that
would require the official to expend public funds, although not
in other cases. 51 Schaeffer sued the department, as well as sev-
eral of its officers. As such, we must begin our analysis with
sovereign immunity and, in particular, whether the Legislature
has waived the State’s immunity from suit so as to authorize
Schaeffer’s claims. Absent legislative action waiving sovereign
immunity, a court lacks subject matter jurisdiction over an
action against the State. 52
[10,11] The specific statute upon which Schaeffer relies,
Neb. Rev. Stat. § 84-911 (Reissue 2014) of the APA, pro-
vides a limited statutory waiver of sovereign immunity and
46
Richardson v. Clarke, 2 Neb. App. 575, 512 N.W.2d 653 (1994).
47
Brief for appellant at 34.
48
Brief for appellees at 12.
49
Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
50
Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
51
Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).
52
Doe v. State, 312 Neb. 665, 980 N.W.2d 842 (2022).
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confers subject matter jurisdiction for a declaratory judg-
ment concerning the validity of a state agency’s rule or regu-
lation. 53 Further, as relevant to this appeal, the APA defines a
“[r]ule or regulation” to mean “any standard of general appli-
cation adopted by an agency in accordance with the authority
conferred by statute.” 54
Contrary to Schaeffer’s assertion, Richardson does not mean
that “[s]overeign immunity does not apply” in the present
case. 55 The Richardson court did not find that sovereign immu-
nity was inapplicable in that case. Rather, the court found
that § 84-911’s waiver of sovereign immunity applied to that
inmate’s declaratory judgment action regarding which good
time law applied to his sentence, because the DCS “deci-
sion” that he challenged was a “‘standard issued by an agency
. . . designed to implement, interpret, or make specific the law’
administered by it.” 56 As such, that decision constituted a rule
or regulation under the APA, and the court had jurisdiction
under § 84-911 to hear the inmate’s suit against the department
and its director. 57
Where no rule or regulation was involved, however, we
have declined to find a waiver of sovereign immunity under
§ 84-911, even in suits regarding an inmate’s good time. For
example, in Perryman, 58 we found no waiver under § 84-911 as
to an inmate’s declaratory judgment action against the depart-
ment and several of its officials regarding a memorandum
discontinuing the application of good time to certain sentences
after the Attorney General found that that practice was incon-
sistent with the governing statute. Relying on Richardson,
53
Heist, supra note 12.
54
Neb. Rev. Stat. § 84-901(2) (Cum. Supp. 2022).
55
Brief for appellant at 34.
56
Richardson, supra note 46, 2 Neb. App. at 577-78, 512 N.W.2d at 655.
57
Richardson, supra note 46.
58
Perryman, supra note 7.
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the inmate in Perryman argued that the memorandum consti-
tuted a rule or regulation under the APA. We disagreed. 59
[12] We found that Richardson was distinguishable because
the memorandum was “not a rule, regulation, or standard,
but involve[d] a matter of statutory interpretation” and that
§ 84-911’s limited waiver of sovereign immunity “does not
confer jurisdiction for declaratory relief concerning judicial
interpretation of a statute.” 60 As such, we concluded that the
courts lacked jurisdiction under § 84-911 over the inmate’s
claims against the department. 61 We did, however, consider
whether the inmate’s claims against department officials
could be heard under the Uniform Declaratory Judgments Act
(UDJA) because his petition could also have been construed as
an action under that act. 62
Similarly, in Logan v. Department of Corr. Servs., 63 we
found that § 84-911’s waiver of sovereign immunity did not
apply to an inmate’s declaratory judgment action against the
department and several of its officials, alleging that DCS
“misapplied state and federal law” in interpreting his sen-
tences. That inmate also argued that his suit was cognizable
under Richardson because he challenged a DCS decision. 64
We again disagreed. 65 We observed that DCS’ interpretation
of the inmate’s sentences was based on its understanding of
a judicial opinion, and the inmate did not allege DCS’ inter-
pretation “related to any rule or regulation.” 66 As such, we
concluded that the courts lacked jurisdiction under § 84-911
59
See id.
60
Id. at 70, 568 N.W.2d at 245.
61
Id.
62
Perryman, supra note 7.
63
Logan v. Department of Corr. Servs., 254 Neb. 646, 652, 578 N.W.2d 44,
50 (1998).
64
Logan, supra note 63.
65
See id.
66
Id. at 652, 578 N.W.2d at 50.
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to hear his action against the department. 67 We also found
that the courts lacked jurisdiction to hear the inmate’s claims
against department officials, because he sought to compel an
affirmative act, as we then understood that term. 68
Most recently, in Heist v. Nebraska Dept. of Corr. Servs., 69
we likewise found that § 84-911’s waiver of sovereign immu-
nity did not apply to an inmate’s declaratory judgment action
against the department and several of its officials over Policy
104.08’s provisions regarding the application of good time.
The inmate argued that Policy 104.08 constituted a rule or
regulation for purposes of the APA because its provisions
regarding the forfeiture of good time prescribed a penalty and
affected private rights. 70 We rejected this argument, instead
finding that Policy 104.08 was a “prototypical internal pro-
cedural document,” insofar as it merely restated the rel-
evant statutory language regarding the forfeiture of good
time, without any substantive changes to it. 71 We further
observed that allowing the inmate to challenge Policy 104.08
under § 84-911 simply because it restated statutory penalties
would negate our holding in Perryman that § 84-911’s limited
waiver of sovereign immunity does not “‘confer jurisdiction
for declaratory relief concerning judicial interpretation of a
statute.’” 72 We then considered the inmate’s UDJA claims as
they pertained to department officials, ultimately finding no
merit here. 73
Our decision in Heist is dispositive of Schaeffer’s APA
claims as to the department, because Heist found that Policy
104.08 is not a rule or regulation and, thus, not subject to
67
Logan, supra note 63.
68
Id.
69
Heist, supra note 12.
70
Id.
71
Id. at 489, 979 N.W.2d at 781.
72
Id. at 490, 979 N.W.2d at 781.
73
Heist, supra note 12.
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judicial review under § 84-911. Schaeffer expressly denom-
inated his claims as APA claims, unlike the inmates in
Perryman and Logan, and he did not bring any UDJA claims,
unlike the inmate in Heist. However, even if Schaeffer’s
claims against agency officials were construed as claims
under the UDJA, they would still fail because they are subject
to claim preclusion, for the reasons previously noted. These
claims, like Schaeffer’s § 1983 claims, involve the same oper-
ative facts as his prior action regarding his parole eligibility
date, seek to vindicate the same rights as were sought to be
vindicated in that action, and could have been raised there.
Schaefer’s second assignment of error is without merit.

Leave to Amend
Schaeffer argues that the district court erred in failing to
grant him leave to amend his complaint to “strike . . . any cita-
tion or reference to [Policy] 104.08 as a basis for . . . relief”
and substitute 68 Neb. Admin. Code, ch. 1. 74 The record shows,
however, that even though Schaeffer did not ask the district
court for leave to amend, the district court actually viewed
his APA claims to encompass both Policy 104.08 and 68 Neb.
Admin. Code, ch. 1. It nonetheless found Schaeffer’s claims
were not cognizable under the APA, because he did not chal-
lenge the validity of Policy 104.08 or 68 Neb. Admin. Code,
ch. 1, but, rather, sought judicial interpretation of a statute.
We reach the same conclusion as the district court, albeit
for different reasons. An appellate court may affirm a lower
court’s ruling that reaches the correct result, albeit based on
different reasoning. 75
In prior cases where an appellant alleged that the trial court
abused its discretion by denying leave to amend when such
leave was not requested, we examined whether amendment
would have cured the defects in the appellant’s case. For
74
Brief for appellant at 36.
75
Florence Lake Investments v. Berg, 312 Neb. 183, 978 N.W.2d 308 (2022).
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example, in Chaney v. Evnen, 76 we observed the plaintiff pled
that some individuals who signed a ballot initiative petition
wanted to withdraw their signatures and that some petition
circulators committed fraud and failed to comply with the
governing statute. However, there was nothing in the record
indicating that amendment would remedy the defect that the
withdrawals were untimely submitted and the plaintiff’s alle-
gations of fraud were based on an incorrect understanding of
the governing statute. 77
Similarly, in Hargesheimer v. Gale, 78 we noted that the plain-
tiffs pled that given the Governor’s financial and other support
of a referendum, the failure to list him as a sponsor made the
petition legally insufficient. However, nothing in the record
indicated that amendment would remedy the defect that even if
the plaintiffs’ allegations about the Governor’s activities were
true, those activities would not establish that he “‘sponsor[ed]
the petition’” under the applicable statute. 79
In Schaeffer’s case, as in Chaney and Hargesheimer, there
is nothing in the record to suggest that amendment would rem-
edy the defects in Schaeffer’s APA claims. The parties do not
appear to dispute that 68 Neb. Admin. Code, ch. 1, is a rule
or regulation. As such, Schaeffer’s proposed amendment could
be seen to remedy the sovereign immunity issue previously
noted. However, that amendment would not remedy the defect
that any claims regarding 68 Neb. Admin. Code, ch. 1, that
Schaeffer might raise would be subject to claim preclusion, as
discussed above. Such claims would involve the same cause of
action as his prior action regarding his tentative release date
and could have been raised in his prior action.
Schaefer’s third assignment of error is without merit.
76
Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (2020).
77
See id.
78
Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
79
Id. at 135, 881 N.W.2d at 598.
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CONCLUSION
Schaeffer’s claims that the district court erred in dismissing
his action with prejudice and not granting him leave to amend
are without merit. Accordingly, the judgment of the district
court is affirmed.
Affirmed.
Freudenberg, J., not participating.