Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2017 12:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
Paul Gillpatrick and Niccole Wetherell, appellees,
v. Diane Sabatka-R ine et al., appellants.
___ N.W.2d ___
Filed September 29, 2017. No. S-16-212.
1. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
2. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final order entered
by the court from which the appeal is taken; conversely, an appellate
court is without jurisdiction to entertain appeals from nonfinal orders.
3. Statutes: States. State courts are bound by the U.S. Supreme Court’s
interpretation of federal statutes.
4. Attorney Fees: Civil Rights. Under 42 U.S.C. § 1988 (2012), for a
plaintiff to be eligible for attorney fees as a prevailing party, the plain-
tiff must have obtained a judgment on the merits, a consent decree, or
some other judicially enforceable settlement, which materially alters
the legal relationship of the parties in a way that benefits the plaintiff.
In addition to prevailing on the merits of at least some of its claims,
a plaintiff must also show that its court victory advanced the purpose
behind Congress’ allowance of an attorney fee award: ensuring that
financial barriers do not prevent plaintiffs from privately enforcing fed-
eral civil rights laws.
5. ____: ____. Under 42 U.S.C. § 1988 (2012), a party is not entitled to
seek attorney fees until after it becomes eligible for the fees as a prevail-
ing party.
6. Judgments: Attorney Fees: Civil Rights. Under 42 U.S.C. § 1988
(2012), a prevailing party’s right to attorney fees cannot be limited by
a local rule; for state law actions, a party is required to request attorney
fees before the court enters an order or judgment.
7. Judgments: Final Orders: Attorney Fees: Civil Rights. In an action
brought under 42 U.S.C. § 1983 (2012), a party is not required to
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GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
separately move for attorney fees until after the trial court enters a final
order or judgment on the merits.
8. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
9. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
10. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
11. Constitutional Law. The determination of constitutional requirements
presents a question of law.
12. Statutes. Statutory interpretation presents a question of law.
13. Immunity: Public Officers and Employees. The State’s sovereign
immunity does not bar actions to restrain state officials or to compel
them to perform an act they are legally required to do unless the pro-
spective relief would require them to expend public funds.
14. Actions: Civil Rights: Public Officers and Employees: Liability.
A state official’s liability under 42 U.S.C. § 1983 (2012) turns on the
capacity in which the state official was sued, not on the capacity in
which the defendant acted.
15. ____: ____: ____: ____. State officials sued in their individual capaci-
ties can be personally liable under 42 U.S.C. § 1983 (2012) for an
action taken under color of state law that deprived the plaintiff of a
federal right.
16. Constitutional Law: Public Officers and Employees: Immunity. The
11th Amendment bars a suit against state officials when the State is the
real, substantial party in interest.
17. ____: ____: ____. When the State or an arm of the State is named as
a defendant, 11th Amendment immunity is not limited to suits seeking
damages; absent a waiver, it bars a suit regardless of the relief sought.
18. ____: ____: ____. Under the doctrine of Ex parte Young, 209 U.S. 123,
28 S. Ct. 441, 52 L. Ed. 714 (1908), a state’s 11th Amendment immunity
does not bar a suit against state officials when the plaintiff seeks only
prospective relief for ongoing violations of federal rights.
19. Actions: Civil Rights: Public Officers and Employees: Liability.
State officials sued in their official capacities for injunctive relief are
persons under 42 U.S.C. § 1983 (2012), because official capacity actions
for prospective relief are not treated as actions against the State.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
20. Actions: Public Officers and Employees: Immunity. A personal
capacity suit against a state official does not implicate sovereign immu-
nity, because the plaintiff seeks recovery from the official personally—
not from the state’s treasury.
21. Actions: Civil Rights: Public Officers and Employees: Liability.
When a plaintiff in an action brought under 42 U.S.C. § 1983 (2012)
seeks injunctive relief to compel state officials to comply with federal
law, the claim is available only against a state official sued in his or her
official capacity.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Reversed and remanded with instructions.
Douglas J. Peterson, Attorney General, and David A. Lopez
for appellants.
Amy Miller, of ACLU of Nebraska Foundation, and
Michael D. Gooch for appellees Paul Gillpatrick and Niccole
Wetherell.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
NATURE OF CASE
The appellants, Diane Sabatka-Rine, Denise Skrobecki, and
Michael L. Kenney, were state officials in the Nebraska
Department of Correctional Services (Department). More spe-
cifically, Kenney was the Department’s director; Sabatka-Rine
was the warden at the Nebraska State Penitentiary (NSP);
and Skrobecki was the warden at the Nebraska Correctional
Center for Women (NCCW). The appellees, Paul Gillpatrick
and Niccole Wetherell, are inmates at different prison facili-
ties who sued the state officials in their individual capaci-
ties for interfering with the inmates’ request to marry. The
Department denied the inmates’ request under an internal
policy that it does not transport an inmate to another facil-
ity for a marriage ceremony. Additionally, the inmates were
denied a marriage ceremony via videoconferencing because
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297 Nebraska R eports
GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
the Department interprets Neb. Rev. Stat. § 42-109 (Reissue
2016) to require that the inmates both appear physically
before an officiant.
The district court ruled that the Department’s policy imper-
missibly burdened the inmates’ right to marry and that its
interpretation of § 42-109 was constitutionally flawed. The
court sustained the inmates’ motion for summary judgment,
denied the state officials’ motion for summary judgment, and
enjoined the state officials and their agents from denying the
inmates a marriage ceremony via videoconference or enforcing
the Department’s policy that rested on its flawed interpretation
of § 42-109.
Assuming, without deciding, that the court’s decision was
correct on the merits, we nonetheless reverse. We conclude
that the court erred in granting the inmates injunctive relief.
We conclude that in a civil rights action filed under 42 U.S.C.
§ 1983 (2012), state officials can only be sued for injunctive
relief in their official capacities. Accordingly, we remand the
cause with instructions for the court to vacate its order.
JURISDICTION
[1,2] The parties dispute whether the state officials have
appealed from a final judgment or order; as a result, we address
that issue first. Before reaching the legal issues presented
for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.1 For an
appellate court to acquire jurisdiction of an appeal, there must
be a final order entered by the court from which the appeal is
taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.2
The court’s order required the state officials to pay all costs
but it did not determine attorney fees, which the inmates had
requested in their amended complaint. The officials filed their
1
State v. McColery, ante p. 53, 898 N.W.2d 349 (2017).
2
In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).
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GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
notice of appeal before the court took any action regarding
attorney fees.
The inmates moved the Nebraska Court of Appeals to dis-
miss the appeal because the district court had not entered a
final order when the officials filed their appeal. They asserted
that their motion for attorney fees and costs was set for a
hearing before the defendants filed their appeal. They argued
that under our holding in Kilgore v. Nebraska Dept. of Health
& Human Servs.,3 the defendants had not appealed from a
final order.
In Kilgore,4 we held that the court’s failure to address the
request for attorney fees in its order left a portion of the judg-
ment unresolved. This failure meant that the order was not
final for purposes of appeal.
The plaintiff in Kilgore requested attorney fees in her peti-
tion. At the close of the evidence, the court announced its rul-
ing from the bench, a portion of which was in the plaintiff’s
favor, and stated that it would make a determination regarding
attorney fees after it calculated her damages. In a subsequent
written order, the court reiterated its ruling in favor of the
plaintiff and set forth her damages. However, the court’s order
did not rule on her request for attorney fees. The plaintiff then
filed an application for attorney fees, and the defendants filed
their appeal.
In addressing the issue of attorney fees, we stated that the
plaintiff had properly requested attorney fees in her pleading.
We also emphasized that before the court issued its written
order, it had announced its ruling from the bench and stated
that it would determine attorney fees after calculating damages.
We concluded that the court’s failure to address the request in
its order left a portion of the judgment unresolved, which fail-
ure meant that the order was unappealable.
3
Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763
N.W.2d 77 (2009).
4
Id.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
The state officials in the present matter argued that under
Olson v. Palagi5 and Murray v. Stine,6 the district court’s order
was final, because the inmates failed to move for attorney fees
before the court entered its judgment. They did not dispute
that the inmates’ application for attorney fees was pending
before the district court when they filed their notice of appeal.
But they argued that under our case law, the court’s silence in
its order was a denial of a fee award because the inmates had
not filed a separate motion for the award. And they argued
that holding the order was not final would leave the losing
litigants uncertain whether to appeal from a judgment on
the merits.
In Olson,7 a father sought a modification of his child support
obligation. In the mother’s answer, she requested attorney fees
and costs, which are authorized under Neb. Rev. Stat. § 42-351
(Reissue 2016). After the court denied a modification, the
mother filed a separate application for attorney fees and costs.
The father appealed the order denying a modification before
the scheduled hearing on the mother’s application. While the
appeal was pending, the district court dismissed the mother’s
application for lack of prosecution. But after the Court of
Appeals affirmed the judgment on the merits, the district court
conducted a hearing on the mother’s application, and the father
appealed again from the court’s fee award.
We vacated the district court’s order, concluding that the
court lacked jurisdiction to hear the mother’s application for a
fee award. We reasoned that the district court, by its silence,
had implicitly denied the mother’s request “under these
circumstances.”8 We noted that the order denying the father’s
complaint to modify did not address the mother’s request for
attorney fees in her answer. And in a docket entry, the court
5
Olson v. Palagi, 266 Neb. 377, 665 N.W.2d 582 (2003).
6
Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015) (per curiam).
7
Olson, supra note 5.
8
Id. at 380, 665 N.W.2d at 585.
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Nebraska Supreme Court A dvance Sheets
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GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
had stated that there was “‘[n]othing under advisement.’”9
We stated that attorney fees are generally treated as costs and
that parties seeking attorney fees must request them before the
court issues a judgment. We concluded that the mother’s appli-
cation for attorney fees had failed to revive the issue because
she did not move for a new trial or an amended order and
because she did not raise the court’s failure to award attorney
fees in a cross-appeal. We reasoned that the parties and the
Court of Appeals had treated the trial court’s order as final,
which could have been true only if it had denied attorney fees.
We held that after the district court’s judgment was final, it
lacked jurisdiction to award attorney fees because the mother
no longer had any means of challenging its earlier, implicit
denial of fees.
In Murray,10 a 2015 case, the defendants had sought a fee
award under Neb. Rev. Stat. § 25-824 (Reissue 2016), some
defendants in their answer and some in a motion filed before
the court entered its summary judgment. The court’s summary
judgment orders were silent on the issue of attorney fees. We
stated that under Olson, a judgment’s silence “‘on the issue
of attorney fees must be construed as a denial of . . . the
request.’”11 In contrast, we stated if a litigant separately moves
for attorney fees before the court enters a judgment on the
merits, the order or judgment is not appealable until the court
disposes of the request for attorney fees. There, we reasoned
that even if the court’s summary judgments had “implicitly
denied the requests for attorney fees included in the respective
answers, it clearly did not dispose of the separate motions for
attorney fees.”12 We noted that a hearing on the motions had
been scheduled before the court entered its summary judgments
and concluded that the court’s silence could not be considered
9
Id.
10
Murray, supra note 6.
11
Id. at 129, 864 N.W.2d 390 (emphasis supplied).
12
Id. at 131, 864 N.W.2d at 391.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
a denial of a fee award under those circumstances. We held
that the summary judgments were not final, appealable orders
because “the absence of a ruling on attorney fees left a portion
of the judgment unresolved.”13
In the instant case, the Court of Appeals denied sum-
mary dismissal, noting that neither party had supplemented
the record or included a copy of the inmates’ application for
attorney fees with the appellate filings. But it concluded that
the order was final under Murray and Olson, because the
inmates did not separately move for attorney fees before the
court issued its summary judgment. We subsequently moved
this case to our docket pursuant to Neb. Rev. Stat. § 24-1106(3)
(Reissue 2016).
Though our holding in Kilgore may seem contrary to our
holdings in Olson and Murray, the facts of the cases are dis-
tinguishable. In Kilgore, the court had announced from the
bench that it would determine attorney fees after it calculated
the plaintiff’s damages, while in Olson and Murray, the courts
were silent as to attorney fees altogether. However, we con-
clude that the instant case is distinguishable from all three
cases because it is a § 1983 action and, as a result, our prior
jurisprudence is inapplicable.
Because this is primarily a § 1983 action and the court
implicitly granted relief on that claim, the inmates’ right to
attorney fees is governed by 42 U.S.C. § 1988(b) (2012): “In
any action or proceeding to enforce a provision of [specified
civil rights statutes, including § 1983], the court, in its discre-
tion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs . . . .”
[3,4] State courts are bound by the U.S. Supreme Court’s
interpretation of federal statutes, including § 1988.14 Under
§ 1988, for a plaintiff to be eligible for attorney fees as a
13
Id.
14
See James v. City of Boise, Idaho, ___ U.S. ___, 136 S. Ct. 685, 193 L.
Ed. 2d 694 (2016).
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GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
prevailing party, the plaintiff must have obtained a judgment on
the merits, a consent decree, or some other judicially enforce-
able settlement, which materially alters the legal relationship of
the parties in a way that benefits the plaintiff.15 In addition to
prevailing on the merits of at least some of its claims,16 a plain-
tiff must also show that its court victory advanced the purpose
behind Congress’ allowance of an attorney fee award: ensuring
that financial barriers do not prevent plaintiffs from privately
enforcing federal civil rights laws.17
“[T]he fees authorized by § 1988 [are] ‘an integral part of
the remedies necessary to obtain’ compliance with § 1983.”18
But the U.S. Supreme Court has held that the time limits for a
motion to amend or alter a judgment have no application to a
postjudgment request for attorney fees under § 1988, because
the motion raises a collateral matter and does not seek a change
in the judgment on the merits:
[A] request for attorney’s fees under § 1988 raises legal
issues collateral to the main cause of action . . . .
. . . Regardless of when attorney’s fees are requested,
the court’s decision of entitlement to fees will therefore
require an inquiry separate from the decision on the
merits—an inquiry that cannot even commence until one
15
See, Lefemine v. Wideman, 568 U.S. 1, 133 S. Ct. 9, 184 L. Ed. 2d 313
(2012); Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of
Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed.
2d 855 (2001); Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L.
Ed. 2d 40 (1983).
16
See Fox v. Vice, 563 U.S. 826, 131 S. Ct. 2205, 180 L. Ed. 2d 45 (2011).
17
See, e.g., Perdue v. Kenny A., 559 U.S. 542, 130 S. Ct. 1662, 176 L. Ed.
2d 494 (2010); Dennis v. Higgins, 498 U.S. 439, 111 S. Ct. 865, 112 L. Ed.
2d 969 (1991) (Kennedy, J., dissenting; Rehnquist, C.J., joins); Missouri
v. Jenkins, 491 U.S. 274, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989);
Hensley, supra note 15; Shelby County, Ala. v. Lynch, 799 F.3d 1173 (D.C.
Cir. 2015), cert. denied ___ U.S. ___, 136 S. Ct. 981, 194 L. Ed. 2d 4
(2016).
18
Maine v. Thiboutot, 448 U.S. 1, 11, 100 S. Ct. 2502, 65 L. Ed. 2d 555
(1980).
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GILLPATRICK v. SABATKA-RINE
Cite as 297 Neb. 880
party has “prevailed.” . . . [T]he attorney’s fees allowed
under § 1988 are not compensation for the injury giving
rise to an action. Their award is uniquely separable from
the cause of action to be proved at trial.19
In White v. New Hampshire Dept. of Empl. Sec.,20 the Court
explained that in the course of civil rights litigation, especially
in actions seeking injunctive relief, a court could issue many
orders that would cause a plaintiff’s counsel to forfeit the right
to fees if they did not file a request after every order that could
be construed as a “final judgment.” The Court further noted
that applying a 10-day time limit could deprive counsel of the
time needed to negotiate a settlement. It reasoned that these
possibilities would only encourage additional litigation. But the
Court also stated that federal district courts could adopt local
timeliness standards for filing claims for attorney fees and
could avoid piecemeal appeals by promptly hearing requests
for attorney fees.
[5-7] Under the Court’s interpretation of § 1988, a party is
not entitled to seek attorney fees until after it becomes eligible
for the fees as a prevailing party. And because the Court held
that a prevailing party’s right to attorney fees is not limited
by a time limit for a postjudgment motion, it also cannot be
limited by a local rule; for state law actions, a party is required
to request attorney fees before the court enters an order or
judgment.21 We are bound by that interpretation. We there-
fore conclude that in a § 1983 action, a party is not required
to separately move for attorney fees until after the trial court
19
White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 451-52, 102
S. Ct. 1162, 71 L. Ed. 2d 325 (1982). See, also, Bumpers v. Community
Bank of N. Virginia, 364 N.C. 195, 695 S.E.2d 442 (2010); 1 Robert L.
Rossi, Attorneys’ Fees § 6:18 (3d ed. 2015); 15B Charles Alan Wright et
al., Federal Practice and Procedure § 3915.6 (1992 & Supp. 2017); 5 Am.
Jur. 2d Appellate Review § 391 (2007).
20
White, supra note 19, 455 U.S. at 454.
21
See Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123
(1988).
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enters a final order or judgment on the merits. Because our
rule for state law actions does not apply, the court’s decision
on the merits of the pleadings is an appealable order. Having
determined that we have jurisdiction, we turn to the facts of
this appeal.
BACKGROUND
Gillpatrick is incarcerated at the NSP in Lincoln, Nebraska,
and is serving lengthy sentences for his convictions of second
degree murder and use of a weapon to commit a felony.22
Wetherell is incarcerated at the NCCW in York, Nebraska,
and is serving a life sentence for a first degree murder
conviction.23
Grievance Procedures
In May 2012, Weatherell submitted a “Marriage Intention
Form” and interview request to the religious coordinator at the
NCCW. She stated her intention to marry Gillpatrick that July.
Gillpatrick submitted a corresponding request at the NSP.
In July 2012, Wetherell filed a grievance, stating that she
and Gillpatrick had followed the marriage procedures under
the Department’s administrative regulation No. 208.01 (AR
208.01), but that the religious coordinator would not record
a telephonic wedding as a valid marriage because both par-
ties had to be present. She acknowledged that the Department
would not transport her or Gillpatrick to another facility but
implicitly wanted the Department to provide a telephonic cer-
emony. She received an unsigned response denying her request
because it was prohibited by the combination of § 42-109 and
prison regulations:
The [Department] will not transport inmates from one
institution to another for a marriage ceremony. With the
approval of both Wardens, inmates housed at Community
22
See State v. Gillpatrick, No. A-10-793, 2011 WL 2577279 (Neb. App. June
28, 2011) (selected for posting to court website).
23
See State v. Wetherell, 259 Neb. 341, 609 N.W.2d 672 (2000).
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Corrections Centers may be allowed to enter NCCW
in order to be married. You are not permitted to have
telephone contact with inmates at other facilities. Per
[§] 42-109, the parties shall solemnly declare in the pres-
ence of the magistrate or minister and the attending wit-
nesses, that they take each other as husband and wife; and
in any case there shall be at least two witnesses, besides
the minister or magistrate present at the ceremony.
In August 2012, Wetherell filed another grievance, stat-
ing that she and Gillpatrick had requested a telephonic wed-
ding because neither of them would be “classified to com-
munity corrections anytime in the future.” She asked if they
could pay for transportation to the courthouse to comply with
§ 42-109. The response was the same. In September, she filed
an administrative appeal. The Department’s director again
responded that the Department does not provide transportation
for a marriage.
In October 2012, Gillpatrick filed a similar grievance at
the NSP, arguing that no laws prohibited their marriage and
that he and Wetherell would be “locked up for a very long
time” and wished to comfort each other. An officer responded
that Nebraska law does not authorize telephonic marriages,
the Department’s regulations did not authorize an inmate-to-
inmate marriage via telephone, and the Department will not
transport inmates for a marriage ceremony. In March 2013,
Gillpatrick’s administrative appeal was denied as untimely. In
July, Gillpatrick filed a new grievance. The new grievance, an
administrative appeal, and subsequent interview requests were
all denied.
Court Procedures
In February 2014, the inmates filed their first complaint, in
which they named the Department, Sabatka-Rine, Skrobecki,
and Kenney as defendants. Each state official was sued in his
or her official capacity. The inmates alleged that they had no
means of exercising their right to marry unless the Department
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accommodated them in some manner. They alleged claims
under 42 U.S.C. § 1983, the federal Due Process Clause, and
the Nebraska Constitution. They alleged that the defendants’
policies, customs, and practices had prevented inmates in sepa-
rate facilities from marrying and that they had a fundamental
right to marry, which could not be denied because they were
incarcerated. They sought a declaration that the defendants’
policies and practices violated the Constitution, as well as a
preliminary and permanent injunction requiring the defendants
and their agents to “make such accommodations as necessary,
consistent with legitimate penological concerns, to facilitate
the completion of [their] marriage application.”
Despite not having been sued in their individual capaci-
ties, the state officials moved, in their individual capacities,
to dismiss the inmates’ complaint under Neb. Ct. R. Pldg.
§ 6-1112(b)(1) for lack of subject matter jurisdiction and
under § 6-1112(b)(6) for failure to state a claim upon which
relief can be granted. At the hearing on the motion to dismiss,
the inmates agreed that (1) the Department was entitled to
assert sovereign immunity; (2) the court could not order the
Department to transport inmates to facilitate a marriage; (3)
they had sued the state officials in their official capacities,
but served them individually; and (4) they could not ask the
court to order the Department “or its employees acting in
their official capacity to do something . . . because the [S]tate
has not waived its sovereign immunity from the suit in its
own courts.” But the inmates argued that the court could still
determine whether the Department’s policies were constitu-
tional and whether they were entitled to prospective relief.
They asked for leave to amend. They argued that although
they were asking for a declaratory judgment, they were not
asking for an advisory opinion, because there were reasonable
alternatives to transporting inmates to facilitate a marriage
ceremony. The court concluded that the motion to dismiss
should be sustained and gave the inmates leave to file an
amended complaint.
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In the inmates’ amended complaint, they omitted the
Department as a defendant and sued the same state offi-
cials in their individual capacities only. They asserted sepa-
rate claims against each official and alleged claims under
§ 1983, Neb. Rev. Stat. § 84-911 (Reissue 2014) of the
Administrative Procedure Act (APA), the federal Due Process
Clause, and the Nebraska Constitution. For each claim, they
alleged that the Department’s policies had denied them their
fundamental right to marry while they were incarcerated and
that the state officials would continue to deny them this
right unless enjoined. They alleged that when Kenney denied
their administrative appeals, he did so intentionally and with-
out exercising his professional judgment as to whether their
request would pose a threat to security, order, or public
safety. They made the same allegations against Sabatka-Rine
and Skrobecki. The inmates sought a declaration that (1) the
Department’s policies, customs, and practices, as applied to
them, violated the Constitution and (2) the state officials’
denial of their requests to marry and their grievances violated
their constitutional right to marry. They sought a preliminary
and permanent injunction preventing the state officials and
their agents from relying on past denials of their marriage
requests for any purpose, as well as asking the court for costs
and attorney fees.
The state officials filed an answer denying the inmates’
allegations, affirmatively alleging that their claims were barred
by sovereign immunity and qualified immunity, and that they
had failed to state a claim for which relief could be granted.
In February 2015, the state officials moved for summary judg-
ment. In May, they moved the court to dismiss the action for
lack of subject matter jurisdiction. In July, the inmates objected
to the motion to dismiss. In October, they filed a cross-motion
for summary judgment.
At a hearing in November 2015, the assistant attorney
general representing the state officials stated that he had
recently learned the Department had repealed the disputed
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language from AR 208.01 but that it would be promulgating
similar language in the future. He believed the case could go
forward on the validity of the Department’s internal policy
because the Department would still enforce the policy of the
deleted language in AR 208.01, which he argued was not sub-
ject to the APA. Because the Department would still enforce
its policy, he argued that the court’s judgment would not
be advisory.
The inmates agreed that they were not asking for an advi-
sory opinion. They had argued the Department could deny a
marriage request under AR 208.01 only if a warden finds it
would pose a threat to security, order, or public safety. They
argued that the Department’s position had not changed—i.e.,
it would not facilitate their marriage—and that their con-
stitutional claim was therefore still alive. They stated that
they were not challenging the constitutionality of § 42-109.
Instead, they argued that the court could reasonably interpret
it to authorize a telephonic ceremony. The state officials con-
ceded that the Department’s policy rested on its interpretation
of § 42-109. They argued that they should not be required to
expend resources to facilitate an unlawful marriage.
Court’s Order
The court rejected the state officials’ argument that it lacked
authority to interpret § 42-109 because the inmates had asked
for declaratory relief under the APA instead of the Uniform
Declaratory Judgments Act. The court reasoned that the
inmates were asking for relief from the officials’ interpreta-
tion of the statute to promulgate a rule that impinged on the
inmates’ right to marry. It described the officials’ justifica-
tion for the rule as not wanting to waste time and resources
on an unlawful marriage under a statute that the Department
could not ignore. It concluded that the inmates’ request for
relief from the officials’ interpretation of § 42-109 fell within
the parameters of § 84-911 of the APA and that the officials
had not cited any cogent authority to the contrary. Citing
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federal appellate decisions,24 the court stated, “‘Courts are the
final authorities on such issues of statutory construction [and]
remain free to set aside an agency’s construction of a statute
if it does not have a reasonable basis in law or if it frustrates
congressional policy.’”
In the district court’s order, it concluded that the par-
ties’ dispute was substantively governed by the U.S. Supreme
Court’s decision in Turner v. Safley.25 It concluded that the
state officials had interpreted the requirement of “presence” in
§ 42-109 to mean that persons wishing to marry had to declare
their intent in the “physical presence” of an officiant. But it
concluded that § 42-109 neither directly authorized nor pro-
hibited an officiant from conducting a marriage ceremony by
videoconference and that nothing in the statute supported the
officials’ interpretation. The court noted that (1) the officials
had not argued the inmates’ marriage posed a threat to security,
order, or public safety; (2) they had not stated a penological
justification for the challenged policy; (3) they had not argued
that arranging the marriage would adversely impact staff or
resources; and (4) they had not argued that the technology was
unavailable to comply with the inmates’ request to marry. It
determined that the officials had not satisfied the Turner test
and that every factor weighed in the inmates’ favor.
The court rejected the officials’ argument that Turner only
requires prison officials to have a reasonable justification for
preventing inmates from marrying and that § 42-109 pro-
vides that justification because it makes telephonic marriages
invalid. It stated that like the challenged regulation in Turner,
the officials’ argument showed the Department’s marriage
restriction was an exaggerated response, which was not related
to a valid security or rehabilitative concern. It concluded
24
See, Southeastern Community College v. Davis, 442 U.S. 397, 99 S. Ct.
2361, 60 L. Ed. 2d 980 (1979); Metro. Med. Ctr. & Extended Care Fac. v.
Harris, 693 F.2d 775 (8th Cir. 1982).
25
Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
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that the officials had relied solely on their interpretation of
§ 42-109 to establish a policy that “flies in the face of the
[inmates’] constitutional rights.”
The court concluded that the Department’s policy had imper-
missibly burdened the inmates’ right to marry and that their
interpretation of § 42-109, in the context of this case, was
constitutionally flawed. It sustained the inmates’ motion for
summary judgment, denied the officials’ motion for summary
judgment, and enjoined the officials and their agents from
denying the inmates’ a marriage via videoconference or enforc-
ing the Department’s policy that rested on an interpretation
of § 42-109 to require the inmates’ physical presence before
an officiant.
ASSIGNMENTS OF ERROR
The state officials assign that the court erred as follows:
(1) The court erred to the extent that it ordered any relief
under § 84-911 of the APA, because the inmates failed to
challenge the validity of a regulation and failed to name the
Department as a defendant;
(2) the court erred to the extent that it determined the
inmates’ rights under any statute, because the inmates failed to
file a claim under Neb. Rev. Stat. § 25-21,150 (Reissue 2016)
of the Uniform Declaratory Judgments Act;
(3) the court erred to the extent it granted the inmates
injunctive relief under the principles of Ex parte Young,26
because their claims were against the officials in their indi-
vidual capacities;
(4) the court erred to the extent it concluded that the 14th
Amendment commands states to affirmatively facilitate video-
conference wedding ceremonies between inmates;
(5) the court violated the State’s sovereign immunity to
the extent its order requires the State to take an affirmative
action; and
26
Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).
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(6) the court erred in denying the officials’ motion for sum-
mary judgment, and in sustaining the inmates’ motion for sum-
mary judgment and awarding them costs.
STANDARD OF REVIEW
[8,9] We will affirm a lower court’s grant of summary judg-
ment if the pleadings and admitted evidence show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.27 In
reviewing a summary judgment, we view the evidence in the
light most favorable to the party against whom the judgment
was granted and give that party the benefit of all reasonable
inferences deducible from the evidence.28
[10-12] We independently review questions of law decided
by a lower court.29 The determination of constitutional require-
ments presents a question of law.30 Statutory interpretation
presents a question of law.31
ANALYSIS
[13] We need not address the state officials’ arguments
about the inmates’ pleading deficiencies for their state law
claims here, because those deficiencies are irrelevant to the
inmates’ § 1983 claim. The district court engaged in statutory
interpretation only to reject the officials’ argument that the
Department’s regulation did not violate federal law. As such,
its decision primarily rested on the inmates’ § 1983 claim.
And we reject the officials’ argument that sovereign immunity
barred any claim for an order to compel them to perform any
27
Thomas v. Board of Trustees, 296 Neb. 726, 895 N.W.2d 692 (2017).
28
Id.
29
In re Estate of Fuchs, ante p. 667, ___ N.W.2d ___ (2017); State v. Harris,
296 Neb. 317, 893 N.W.2d 440 (2017).
30
Harris, supra note 29.
31
State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
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affirmative act. The State’s sovereign immunity does not bar
actions to restrain state officials or to compel them to perform
an act they are legally required to do unless the prospective
relief would require them to expend public funds.32
However, we find merit in the officials’ third assignment of
error that the inmates could not obtain injunctive relief against
them, because in their amended complaint, they sued the offi-
cials only in their individual capacities.
Section 1983, in relevant part, provides the following:
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State . . . sub-
jects, 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 . . . .
In Will v. Michigan Dept. of State Police,33 the U.S. Supreme
Court held that state officials “acting in their official capaci-
ties” are not “‘persons’” subject to liability for damages under
§ 1983. The Court interpreted § 1983 to mean that a suit against
a state official in his or her official capacity is a suit against the
official’s office. “Indeed, when officials sued in this capacity in
federal court die or leave office, their successors automatically
assume their roles in the litigation.”34
[14,15] In Hafer v. Melo,35 however, the Supreme Court
clarified that a state official’s liability under § 1983 turns on
the capacity in which the official was sued, not on the capac-
ity in which the defendant acted. It held that state officials
32
See Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379,
810 N.W.2d 149 (2012).
33
Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304,
105 L. Ed. 2d 45 (1989).
34
Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991).
35
Id.
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sued in their individual capacities can be personally liable
under § 1983 for an action taken under color of state law that
deprived the plaintiff of a federal right.36 A victory in a per-
sonal capacity action is a victory against the individual defend
ant, rather than against the entity that employs him.37
[16-18] These holdings rest on the Supreme Court’s 11th
Amendment jurisprudence. The 11th Amendment bars a suit
against state officials when “‘the state is the real, substantial
party in interest.’”38 And when the State or an arm of the
State is named as a defendant, 11th Amendment immunity
is not limited to suits seeking damages; absent a waiver, it
bars a suit regardless of the relief sought.39 However, under
the doctrine of Ex parte Young,40 a state’s 11th Amendment
immunity does not bar a suit against state officials when the
plaintiff seeks only prospective relief for ongoing violations of
federal rights.41
In Ex parte Young, the U.S. Supreme Court held that the
11th Amendment did not bar a suit to enjoin a state attorney
general from enforcing a state statute that allegedly violated
the 14th Amendment. The Court surveyed its case law and
concluded that it showed state officials who are sufficiently
connected to the enforcement of an unconstitutional enact-
ment can be enjoined from enforcing it.42 But the Court also
explained that such claims do not affect the state, because if
the statute that the official seeks to enforce is unconstitutional
36
Hafer, supra note 34.
37
Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114
(1985).
38
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.
Ct. 900, 79 L. Ed. 2d 67 (1984).
39
Pennhurst State School & Hosp., supra note 38.
40
Ex parte Young, supra note 26.
41
Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 122 S. Ct.
1753, 152 L. Ed. 2d 871 (2002).
42
See Ex parte Young, supra note 26.
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and therefore void, then the official is “stripped of his official
or representative character and is subjected in his person to the
consequences of his individual conduct.”43
[19] Courts holding that injunctive relief is available in
individual capacity suits seem to have read this statement to
mean that a suit for prospective relief is against an official
individually.44 But the Supreme Court later explained that the
“fiction of [Ex parte] Young” has been “accepted as necessary”
to harmonize states’ 11th Amendment immunity with the need
to vindicate federal rights and hold state officials responsible to
the supremacy of federal law.45 And the Court has consistently
explained that state officials sued in their official capacities
for injunctive relief are persons under § 1983, because official
capacity actions for prospective relief are not treated as actions
against the State.46
[20] The doctrine in Ex parte Young is an exception to a
state’s immunity.47
[T]he exception . . . is based in part on the premise that
sovereign immunity bars relief against States and their
officers in both state and federal courts, and that certain
suits for declaratory or injunctive relief against state offi-
cers must therefore be permitted if the Constitution is to
remain the supreme law of the land.48
In contrast, a personal capacity suit against a state official
does not implicate sovereign immunity, because the plaintiff
43
Id., 209 U.S. at 160.
44
See, Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180 (3d
Cir. 2009); MCI Telecommunication Corp. v. Bell Atlantic PA, 271 F.3d
491 (3d Cir. 2001); Clajon Production Corp. v. Petera, 70 F.3d 1566 (10th
Cir. 1995).
45
See Pennhurst State School & Hosp., supra note 38, 465 U.S. at 105.
46
See, Hafer, supra note 34; Will, supra note 33; Graham, supra note 37.
47
See, Verizon Md. Inc., supra note 41; Alden v. Maine, 527 U.S. 706, 119
S. Ct. 2240, 144 L. Ed. 2d 636 (1999).
48
Alden, supra note 47, 527 U.S. at 747.
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seeks recovery from the official personally—not from the
state’s treasury.49
Because “individual (or personal) capacity suits” seek recov-
ery from an official personally, instead of seeking “to conform
the State’s conduct to federal law,” the Seventh Circuit has
held that the exception in Ex parte Young applies only when a
state official is sued in his or her official capacity.50 The court
reasoned that because individual capacity suits do not impli-
cate 11th Amendment immunity, creating an exception to that
immunity for prospective relief would have been unnecessary
if a plaintiff could sue state officials in their individual capaci-
ties. It therefore concluded that the twin goals served by the
exception in Ex parte Young to 11th Amendment immunity—
vindicating federal rights and holding state officials respon-
sible to federal law—cannot be achieved by a lawsuit against a
state official in his or her individual capacity.51 Among courts
that have reached this issue, the trend and weight of authority
is that injunctive relief is not available against officials sued in
their individual capacities.52
In the instant case, the inmates are not seeking money dam-
ages for past injuries, but instead are seeking injunctive relief.
49
Alden, supra note 47.
50
Ameritech Corp. v. McCann, 297 F.3d 582, 586 (7th Cir. 2002).
51
Id.
52
See, Brown v. Montoya, 662 F.3d 1152 (10th Cir. 2011); Greenawalt v.
Indiana Dept. of Corrections, 397 F.3d 587 (7th Cir. 2005); Ameritech
Corp., supra note 50; Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990);
Feit v. Ward, 886 F.2d 848 (7th Cir. 1989); Akins v. Bd. of Gov. of State
Colleges & Univ., 840 F.2d 1371 (7th Cir. 1988), cert. granted and
judgment vacated on other grounds 488 U.S. 920, 109 S. Ct. 299, 102
L. Ed. 2d 319; Pascarella v. Swift Transp. Co., Inc., 643 F. Supp. 2d 639
(D.N.J. 2009); Hatfill v. Gonzales, 519 F. Supp. 2d 13 (D.D.C. 2007);
Meza v. Livingston, No. 09-50367, 2010 WL 6511727 (5th Cir. Oct.
19, 2010) (unpublished opinion); Preble v. Milyard, No. 07-cv-01361-
REB-KMT, 2008 WL 4371906 (D. Colo. Sept. 22, 2008) (unpublished
decision).
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Because the relief is prospective in nature, the State’s sover-
eign immunity would not bar the claim against a state official
sued in his or her official capacity.53
But we agree with the courts that have held injunctive relief
cannot be obtained in a § 1983 action against state officials
who were sued in their individual capacities. An injunction
against the three named state officials, as individuals, would
not vindicate federal rights or hold state officials responsible to
federal law, because they have no power as individuals to carry
out these responsibilities.
[21] As a result, we hold that when a plaintiff in a § 1983
action seeks injunctive relief to compel state officials to com-
ply with federal law, the claim is available only against a
state official sued in his or her official capacity. Because the
inmates sued the state officials in their individual capacities
only, the court erred in granting them injunctive relief on their
§ 1983 claim.
CONCLUSION
We conclude that because federal law controls when a party
must move for attorney fees in a § 1983 action, the court’s rul-
ing on the merits of the pleadings is an appealable judgment.
But we conclude that the court erred in granting the inmates
injunctive relief, because in the inmates’ amended complaint,
they sued the state officials only in their individual capacities.
Accordingly, we reverse the court’s judgment and remand the
cause with instructions for the court to vacate its order.
R eversed and remanded with instructions.
53
See, Anthony K. v. Nebraska Dept. of Health & Human Servs., 289 Neb.
540, 855 N.W.2d 788 (2014); Doe v. Board of Regents, 280 Neb. 492, 788
N.W.2d 264 (2010).