Davis v. State

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2017 09:13 AM CDT

- 955 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

Johnnie W. Davis, appellant, v.
State of Nebraska et al., appellees.
___ N.W.2d ___

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

 1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court
reviews a district court’s order granting a motion to dismiss de novo,
accepting all allegations in the complaint as true and drawing all reason-
able inferences in favor of the nonmoving party.
 2. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
for failure to state a claim, a plaintiff must allege sufficient facts to state
a claim to relief that is plausible on its face. In cases in which a plaintiff
does not or cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if they sug-
gest the existence of the element and raise a reasonable expectation that
discovery will reveal evidence of the element or claim.
 3. Appeal and Error. An appellate court independently reviews questions
of law decided by a lower court.
 4. Constitutional Law. The determination of constitutional requirements
presents a question of law.
 5. Statutes. Statutory interpretation presents a question of law.
 6. Tort Claims Act. Whether a plaintiff’s allegations present a claim that
is barred by an exception to the State’s waiver of tort immunity in a tort
claims act presents a question of law.
 7. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8,209
(Reissue 2014) bars tort claims against the State, its agencies, and its
employees unless the State has waived its immunity for the claim.
 8. Statutes. Statutes relating to the same subject, although enacted at dif-
ferent times, are in pari materia and should be construed together.
 9. Tort Claims Act: Immunity: Waiver. Neb. Rev. Stat. § 81-8,215
(Reissue 2014), when read in pari materia with Neb. Rev. Stat.
§ 81-8,209 (Reissue 2014), operates as a limited waiver of the State’s
tort immunity, subject to specified exceptions that are set out in Neb.
Rev. Stat. § 81-8,219 (2014).
 - 956 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

10. Tort Claims Act: Public Officers and Employees: Immunity: Waiver.
The exceptions to the waiver of the State’s tort immunity include claims
based on the exercise or performance of a discretionary function by a
state officer or employee.
11. ____: ____: ____: ____. Under Neb. Rev. Stat. § 81-8,210 (Reissue
2014), whether a plaintiff has sued a state officer or employee in his
or her individual capacity is irrelevant to whether the State Tort Claims
Act bars a tort claim against that officer or employee. If an officer or
employee was acting within the scope of his or her office or employ-
ment and the alleged tortious conduct falls within an exception to the
State’s waiver of tort immunity, the State Tort Claims Act bars a tort
claim against the officer or employee, regardless of the capacity in
which he or she was purportedly sued.
12. Jurisdiction: Appeal and Error. An appellate court has an independent
duty to decide jurisdictional issues on appeal, even if the parties have
not raised the issue.
13. ____: ____. When a trial court lacks the power, that is, jurisdiction, to
adjudicate the merits of a claim, an appellate court also lacks the power
to adjudicate the merits of the claim.
14. Actions: Jurisdiction: Immunity. A trial court lacks subject matter
jurisdiction over an action against the State unless the State has con-
sented to suit.
15. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised
at any time by any party or by the court sua sponte.
16. Courts: Appeal and Error. The doctrine of stare decisis requires that
appellate courts adhere to their previous decisions unless the reasons
therefor have ceased to exist, are clearly erroneous, or are manifestly
wrong and mischievous or unless more harm than good will result from
doing so.
17. ____: ____. The doctrine of stare decisis is entitled to great weight,
but it does not require an appellate court to blindly perpetuate a prior
interpretation of the law if it concludes that prior interpretation was
clearly incorrect.
18. Tort Claims Act: Immunity: Waiver: Appeal and Error. An excep-
tion to the State’s waiver of immunity under the State Tort Claims Act
is an issue that the State may raise for the first time on appeal and that
a court may consider sua sponte.
19. Tort Claims Act: Appeal and Error. An appellate court has the power
to determine whether a plaintiff’s allegations, taken as true, show that a
tort claim is facially barred by an STCA exception under Neb. Rev. Stat.
§ 81-8,219 (Reissue 2014).
20. False Imprisonment: Words and Phrases. False imprisonment is
the unlawful restraint of a person’s liberty against his or her will. Any
 - 957 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

intentional conduct that results in the placing of a person in a position
where he or she cannot exercise his or her will in going where he or she
may lawfully go may constitute false imprisonment.
21. Judgments: Appeal and Error. An appellate court may affirm a lower
court’s ruling that reaches the correct result, albeit based on differ-
ent reasoning.
22. Constitutional Law: Civil Rights: Immunity. States or governmen-
tal entities that are considered arms of the State for 11th Amendment
purposes are not “persons” that can be sued under 42 U.S.C. § 1983
(2012).
23. ____: ____: ____. Whether a state entity is an arm of the State and
entitled to share its 11th Amendment immunity is a question of fed-
eral law.
24. Judgments: Civil Rights: Immunity. Whether a money judgment
against a state entity would be enforceable against the State is the
critical consideration under 42 U.S.C. § 1983 (2012) for determining
whether the entity is an arm of the State and therefore immune from suit
by private persons.
25. Actions: Immunity. A suit against a state agency is a suit against the
State, and both the State and state agencies can assert the State’s sover-
eign immunity against suit.
26. Constitutional Law: Judgments: Probation and Parole: Civil Rights:
Immunity. Because any judgment against the Board of Parole would
be a judgment against the State, it is cloaked with the State’s 11th
Amendment immunity and cannot be named as a defendant in an action
brought under 42 U.S.C. § 1983 (2012).
27. Actions: Public Officers and Employees: Civil Rights: Liability. A
state official sued in his or her official capacity is not a person who can
be sued under an action brought under 42 U.S.C. § 1983 (2012), unless
the plaintiff seeks only prospective relief.
28. Actions: Parties: Public Officers and Employees: Liability:
Damages. When a plaintiff seeks money damages against a state officer
or employee in his or her official capacity, the State is the real party in
interest, because the officer’s liability in that capacity is liability for the
state entity that the officer represents.
29. Actions: Public Officers and Employees: Civil Rights: Immunity:
Damages. Under 42 U.S.C. § 1983 (2012), the State’s sovereign immu-
nity does not bar a claim for damages against state officials and employ-
ees who are sued in their personal capacities.
30. Actions: Public Officers and Employees: Civil Rights: Liability. To
establish personal liability in an action brought under 42 U.S.C. § 1983
(2012), it is enough to show that the official, acting under color of state
law, caused the deprivation of a federal right.
 - 958 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

31. ____: ____: ____: ____. Acting under the color of state law does not
mean that a state official or employee must have been complying with
state law. Under 42 U.S.C. § 1983 (2012), liability exists as long as the
action was taken within the scope of the defendant’s official authority,
even if the official or employee abused his or her authority.
32. Actions: Public Officers and Employees: Immunity. State officials
sued in their personal capacities, unlike those sued in their official
capacities, may assert personal immunity defenses such as objectively
reasonable reliance on existing law.
33. Constitutional Law: Due Process. The Due Process Clause of the fed-
eral Constitution provides both procedural and substantive protections.
34. Constitutional Law: Probation and Parole. Parolees have a valuable
liberty interest in their continued parole even though it depends upon
their compliance with parole conditions. Parole is therefore protected by
the 14th Amendment and requires at least minimal procedural protec-
tions before a State can terminate it.
35. Due Process. The touchstone of due process is protection of the indi-
vidual against arbitrary action of government, whether the fault lies in
a denial of fundamental procedural fairness or in the exercise of power
without any reasonable justification in the service of a legitimate gov-
ernmental objective.
36. Due Process: Public Officers and Employees. The due process protec-
tion in the substantive sense limits what the government may do in both
its legislative and its executive capacities. But the criteria to identify
what is fatally arbitrary differ depending on whether it is legislation or a
specific act of a governmental officer that is at issue.
37. ____: ____. Only the most egregious official conduct can be said to be
arbitrary in the constitutional sense. The substantive component of the
Due Process Clause is violated by executive action only when it can
properly be characterized as arbitrary, or conscience shocking, in a con-
stitutional sense.
38. Due Process: Negligence: Liability. Liability for negligently inflicted
harm is categorically beneath the threshold of constitutional due
process.
39. Arrests. Normally, when a State holds an individual in custody, the
requisite level of conscience-shocking conduct is deliberate indifference,
subject to the caveat that the standard is sensibly employed only when
actual deliberation is practical.
40. Constitutional Law: Arrests. A plaintiff states a cognizable constitu-
tional violation under the 8th or 14th Amendment when the plaintiff
alleges that a state defendant—who had knowledge of the plaintiff’s
complaint that he or she was being unlawfully detained and the author-
ity to investigate that complaint—was deliberately indifferent to the
 - 959 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

plaintiff’s liberty interest and the defendant’s failure to take action
resulted in the plaintiff’s continued unlawful detention for more than
an insignificant period.
41. Public Officers and Employees: Immunity: Damages: Words and
Phrases. Public officials performing a quasi-judicial function have
absolute immunity from damages for acts they commit within the scope
of that function. A quasi-judicial function refers to one that is closely
related to the judicial process.
42. Public Officers and Employees: Immunity: Liability. In determining
whether to grant quasi-judicial immunity, courts examine the nature of
the functions with which a particular official or class of officials has
been lawfully entrusted to evaluate the effect that exposure to particu-
lar forms of liability would likely have on the appropriate exercise of
those functions.
43. Probation and Parole. The Board of Parole’s mere reliance on evidence
presented to it does not change the nature of its function of exercising
independent discretion whether to grant, deny, or revoke parole.
44. Public Officers and Employees: Civil Rights: Immunity: Pleadings.
Most executive officials and employees are limited to asserting qualified
immunity as an affirmative defense against a personal capacity claim
under 42 U.S.C. § 1983 (2012).
45. Constitutional Law: Public Officers and Employees: Immunity:
Damages: Proof. Qualified immunity shields state officials from money
damages unless a plaintiff alleges facts that would, if proved, show (1)
the official violated a federally guaranteed right and (2) the constitu-
tional or statutory right was clearly established at the time of the chal-
lenged conduct.
46. Actions: Immunity. Because qualified immunity is immunity from suit,
a trial court should try to resolve immunity questions at the earliest pos-
sible stage in litigation.
47. Actions: Public Officers and Employees: Immunity: Liability.
Whether an official protected by qualified immunity may be held per-
sonally liable for an allegedly unlawful official action generally turns on
the objective legal reasonableness of the action, assessed in light of the
legal rules that were clearly established at the time it was taken.
48. Constitutional Law: Public Officers and Employees. Whether a fed-
eral right is clearly established presents a question of law. A court must
consider whether the law is clearly established as it relates to the partic-
ular facts of a case. The unlawfulness of a defendant’s conduct must be
obvious or apparent in the light of preexisting law. That is, the contours
of the right must be sufficiently clear that a reasonable official would
understand that his or her conduct violates that right.
 - 960 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

49. ____: ____. To show a clearly established federal right, the U.S.
Supreme Court does not require a case to be directly on point, but exist-
ing precedent must have placed the statutory or constitutional question
beyond debate.
50. ____: ____. A federal right can be established by a robust consensus of
cases of persuasive authority.
51. Public Officers and Employees: Negligence: Immunity. Showing
that a state defendant was negligent is insufficient to defeat a quali-
fied immunity defense. Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments and pro-
tects all but the plainly incompetent or those who knowingly violate
the law.
52. Actions: Civil Rights: Liability. Vicarious liability is unavailable in an
action brought under 42 U.S.C. § 1983 (2012).

Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Affirmed.
Charles E. Wilbrand and Jeanelle R. Lust, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, Bijan Koohmaraie,
and David A. Lopez for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
I. NATURE OF CASE
Johnnie W. Davis appeals from the district court’s order that
dismissed his negligence claim under the State Tort Claims
Act (STCA)1 and his due process and Eighth Amendment
claims under 42 U.S.C. § 1983 (2012). Davis alleged that
state officials and employees of the Nebraska Board of Parole
(Parole Board) and the Department of Correctional Services
(Department) were liable for mistakenly concluding that he
was subject to a mandatory minimum sentence for a 1995

 1
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014).
 - 961 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

habitual criminal conviction. Because of this mistake, the
Parole Board revoked his parole and reincarcerated him for
nearly 2 months before releasing him on parole again. The dis-
trict court concluded that all of Davis’ claims were barred by
sovereign immunity, qualified immunity, or pleading deficien-
cies, and dismissed his complaint against all defendants.
We overrule Nebraska cases holding that an exception to
the State’s waiver of immunity for tort claims under the STCA
is an affirmative defense that the State must plead and prove.
Because the exceptions are jurisdictional in nature, we hold
that a court can consider an STCA exception sua sponte and for
the first time on appeal. Here, we conclude that the exception
for claims of false imprisonment applies, which exception bars
Davis’ tort claim under the doctrine of sovereign immunity.
We further conclude that the court did not err in ruling that the
defendants were shielded from Davis’ § 1983 action by abso-
lute or qualified immunity.

II. BACKGROUND
We glean the historical facts leading up to this action from
the allegations in Davis’ complaint.2

1. Davis’ A rrest, Pleas, and Sentencing
On May 10, 1995, Davis was charged with 11 different
crimes and was alleged to be a habitual offender. In January
1996, under a plea agreement, Davis pled no contest to count I,
attempted murder in the second degree, and count II, use of
a deadly weapon to commit a felony. The State dismissed the
remaining charges. In March, the court determined that Davis
was a habitual offender and sentenced him to a term of 20
to 30 years’ imprisonment for count I and a term of 10 to
20 years’ imprisonment for count II, with the terms to be
served consecutively.

 2
See Jacob v. Nebraska Dept. of Corr. Servs., 294 Neb. 735, 884 N.W.2d
687 (2016).
 - 962 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

2. Changes to H abitual Criminal Sentencing
Before June 1995, the habitual criminal statute3 provided
the following:
Whoever has been twice convicted of a crime, sentenced,
and committed to prison . . . for terms of not less than one
year each shall, upon conviction of a felony committed in
this state, be deemed to be an habitual criminal and shall
be punished by imprisonment . . . for a term of not less
than ten nor more than sixty years . . . .4
In June 1995, the Legislature amended § 29-2221 to pro-
vide a mandatory minimum sentence for habitual criminal
convictions:
Whoever has been twice convicted of a crime, sentenced,
and committed to prison . . . for terms of not less than one
year each shall, upon conviction of a felony committed in
this state, be deemed to be an habitual criminal and shall
be punished by imprisonment . . . for a mandatory mini-
mum term of ten years and a maximum term of not more
than sixty years . . . .5
Other mandatory minimums apply if a defendant has been con-
victed of felonies not at issue here.6 This amendment became
effective in September 1995,7 after Davis committed his crimes
but before he entered his pleas and was sentenced.
Mandatory minimum sentences carry two consequences that
a minimum term sentence comprising the same number of
years does not. First, a “person convicted of a felony for which
a mandatory minimum sentence is prescribed shall not be
eligible for probation.”8 Second, the offender cannot become

 3
See Neb. Rev. Stat. § 29-2221 (Reissue 2016).
 4
See § 29-2221(1) (Cum. Supp. 1994).
 5
See, 1995 Neb. Laws, L.B. 371, § 13 (emphasis supplied), codified at
§ 29-2221(1) (Reissue 1995).
 6
See id.
 7
See id., § 32.
 8
See Neb. Rev. Stat. § 28-105(4) (Reissue 2016).
 - 963 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

eligible for parole until the mandatory minimum is served in
full; good time credits can be applied to the maximum term
of an indeterminate sentence only after the offender serves the
mandatory minimum.9
3. Davis’ R elease and R eincarceration
In 2012, Davis was paroled. In 2014, the Department
obtained warrants to arrest released prisoners for whom it had
miscalculated their release dates. Davis’ name was not on that
list. But an unknown person later added his name to this list,
and a warrant was issued for his arrest. In June, Davis was
informed by his parole officer that he needed to turn himself
in because his parole eligibility date had been miscalculated.
Davis had not violated his parole, and he was employed.
Before turning himself in to the Department on June 25, he
informed the Department and his parole officer that the man-
datory minimum provision did not apply to him and that his
parole eligibility date was correct. Neither the Department nor
the Parole Board investigated his claim.
At a parole hearing on July 29, 2014, the Parole Board
revoked his parole despite his continued claim that he was not
subject to the mandatory minimum amendment. On August 22,
Davis was released again and given a certificate of parole. Six
months after filing a “State Torts Claim” with the State’s risk
management division, Davis filed this action.
4. Davis’ Claims
Davis named 16 defendants in his complaint: the State;
the Department; the Attorney General’s office; the Parole
Board; the former governor; the former Attorney General; the
Department’s former director, former records administrator,
former general counsel, and two of its former attorneys; the
Parole Board’s former and current chairpersons, its former vice

 9
See, Neb. Rev. Stat. § 83-1,110 (Reissue 2014); Caton v. State, 291
Neb. 939, 869 N.W.2d 911 (2015); Johnson v. Kenney, 265 Neb. 47, 654
N.W.2d 191 (2002).
 - 964 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

chairperson, and a current and former member. He sued all
of the state officers and employees in their official and indi-
vidual capacities.
For Davis’ negligence claim under the STCA, he alleged
that all the state defendants owed him a duty not to violate
his civil rights and not to reincarcerate him or cause his rein-
carceration unless he had violated his parole. Davis alleged,
condensed, that the defendants breached these duties when,
despite his protests, they (1) failed to research the correct law
and applied the wrong law to calculate his parole eligibility
date, (2) determined that he had not served enough time, (3)
added his name to a list of persons who should be arrested,
and (4) reincarcerated him for 59 days when he should have
been on parole.
Davis alleged that in 1997, the Attorney General issued
an opinion at the request of the Department’s director at that
time.10 The Attorney General stated that generally, the good
time provisions in effect when an offender committed the
offense are the ones that apply to calculating the offender’s
sentence,11 unless a later amendment increases the amount
of credit that an offender can receive.12 Davis alleged a lack
of institutional oversight, implementing policies, and train-
ing; and he alleged deliberate indifference to his rights. He
alleged that he lost his job as a valet, his engraving business,
and the house he was renting and that his arrest had strained
his relationship with his girlfriend and his family. He alleged
that this stress led to two occasions when he attempted suicide
while incarcerated.
For his § 1983 due process claim, Davis alleged that the
defendants’ “acts, omissions, policies and practices [were] a
substantial departure from accepted professional judgment, . . .

10
Att’y Gen. Op. No. 97005 (Jan. 14, 1997).
11
See id., citing Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct.
960 (1981).
12
Id., citing State v. Schrein, 247 Neb. 256, 526 N.W.2d 420 (1995).
 - 965 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

constitute[d] punishment, [and] reflect[ed] deliberate indiffer-
ence to the known and obvious consequences to [him].” For his
§ 1983 Eighth Amendment claim, he alleged that the defend­
ants’ “acts, omissions, policies and practices . . . constitute[d]
cruel and unusual punishment.” He alleged the defendants’
conduct had caused him to suffer unspecified economic and
noneconomic damages.
5. Hearing on Defendants’ Motion to Dismiss
The defendants moved to dismiss Davis’ negligence claim
and § 1983 claims under Neb. Ct. R. Pldg. § 6-1112(b)(1)
and (6). Their motion did not set out any specific grounds
for a dismissal. At the hearing, the defendants argued that
because Nebraska courts have held that the Parole Board’s
functions are quasi-judicial and inherently discretionary, Davis’
claims against its members were not cognizable. They also
argued that because the Parole Board had exclusive jurisdic-
tion over Davis’ parole revocation, the court should dismiss
Davis’ claims against the other defendants. Alternatively, they
argued that Davis’ § 1983 claims were deficient, because he
had not alleged that the defendants were personally involved in
determining that his parole should be revoked or in procuring
his reincarceration. Regarding Davis’ deliberate indifference
allegations, the State argued that he would have to allege that
the defendants knew he should not be reincarcerated and that
they did so despite that knowledge. Regarding Davis’ negli-
gence claim, the State argued that the defendants who were not
Board members were immune from suit under the doctrine of
sovereign immunity, because they were performing a discre-
tionary function.
Davis responded that the Department is the main state
agency with the duty to determine parole eligibility dates and
release dates from mandatory minimum sentences. He argued
that these duties were ministerial and not discretionary and
that the Parole Board was not entitled to quasi-judicial immu-
nity. He argued that his release on parole 2 months after he
was reincarcerated showed that the only reason for his parole
 - 966 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

revocation was an incorrect calculation of his parole eligibil-
ity date.
Davis also argued that the Department had continuing
duties—before, during, and after his parole revocation—to
review the record, apply the law correctly, and inform the
Parole Board of its determinations. He argued that these duties
showed other state actors besides the Parole Board were
involved in his parole revocation and reincarceration. As a
result, he argued that he could not yet plead with particular-
ity and that the court could not yet determine whether any of
the defendants were entitled to qualified immunity, because he
had not had an opportunity to discover what each state actor
had done.

6. Court’s Order
The court granted the defendants’ motion to dismiss. In its
order, the court concluded that the Parole Board and its mem-
bers were immune from Davis’ claims, because they perform a
quasi-judicial function that is inherently discretionary. It stated
that Davis’ claims against the Parole Board’s members arose
solely out of their official function and that Nebraska law did
not permit civil damages for decisions involving discretion.
It dismissed Davis’ claims against the Parole Board and its
members with prejudice.
The court dismissed Davis’ claims against the defendants
who were not members of the Parole Board, because all
of his claims arose from the revocation of his parole. The
court determined that they were not involved in the revoca-
tion proc­ess and had no authority over the decision and that
Davis had not alleged any facts connecting them to the revo-
cation. It concluded that despite Davis’ allegations about the
Department’s duties, the Parole Board had exclusive jurisdic-
tion over his parole revocation, which did not involve the
Attorney General’s office or any other defendant who was not
a Parole Board member.
 - 967 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

Regarding Davis’ negligence claim, the court reasoned
that under the STCA, the State can be liable only to the
same extent as a private person would be under similar
circumstances and a private person cannot revoke parole.
Additionally, the court concluded that Davis’ “negligence
action triggers the discretionary function exception [to the
State’s waiver of immunity] because his claims are based
upon State employees’ executing Nebraska statutes . . . and
performing discretionary functions.”
Regarding Davis’ § 1983 claims, the court concluded that
his claims against the State, state agencies, and state defend­
ants in their official capacities were barred by sovereign immu-
nity. It additionally found that the claims were not cognizable,
because Davis had failed to “plead with any specificity that
any named Defendant actually participated in any alleged
constitutional violation.” Alternatively, the court ruled that the
defendants were entitled to qualified immunity from Davis’
due process and Eighth Amendment claims. It concluded that
the defendants’ mistaken belief that Davis’ parole eligibility
date was correct did not deprive them of qualified immunity,
because there is “no ‘clearly established constitutional right’
making State officials individually liable for erroneous parole
revocations under the Eighth Amendment.”
III. ASSIGNMENTS OF ERROR
Davis assigns, consolidated and restated, that the court erred
as follows:
(1) in dismissing all of his claims with prejudice;
(2) in determining that the Parole Board and its members are
immune from his claims;
(3) in determining that the defendants who are not Parole
Board members cannot be held liable for his reincarceration;
(4) in failing to weigh the role that the defendants who are
not Parole Board members played in his reincarceration;
(5) in determining that the State has not waived its sovereign
immunity for his negligence claim;
 - 968 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

(6) in determining that his negligence claim is barred by the
discretionary function exception to the State’s waiver of sover-
eign immunity;
(7) in determining that he failed to plead his § 1983 claims
with sufficient specificity;
(8) in determining that the defendants were entitled to quali-
fied immunity; and
(9) in not allowing him to amend his complaint.
VI. STANDARD OF REVIEW
[1,2] We review a district court’s order granting a motion
to dismiss de novo, accepting all allegations in the complaint
as true and drawing all reasonable inferences in favor of the
nonmoving party.13 To prevail against a motion to dismiss for
failure to state a claim, a plaintiff must allege sufficient facts to
state a claim to relief that is plausible on its face.14 In cases in
which a plaintiff does not or cannot allege specific facts show-
ing a necessary element, the factual allegations, taken as true,
are nonetheless plausible if they suggest the existence of the
element and raise a reasonable expectation that discovery will
reveal evidence of the element or claim.15
[3-6] We independently review questions of law decided by
a lower court.16 The determination of constitutional require-
ments presents a question of law.17 Statutory interpretation
presents a question of law.18 Whether a plaintiff’s allegations
present a claim that is barred by an exception to the State’s
waiver of tort immunity in a tort claims act presents a question
of law.19

13
Jacob, supra note 2.
14
First Neb. Ed. Credit Union v. U.S. Bancorp, 293 Neb. 308, 877 N.W.2d
578 (2016).
15
Id.
16
State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).
17
Id.
18
State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
19
See Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014).
 - 969 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

V. ANALYSIS
1. State Officers and Employees Acting Within
Scope of Their Offices or Employment Can
Be Sued for Tortious Conduct Only in
Their Official Capacities
Davis contends that he sued the defendants in their indi-
vidual capacities and that some of the state employees acted
outside of the scope of their duties. The State responds that
Davis’ negligence claim is not cognizable against the state
defendants in their individual capacities. We agree.
[7] Section 81-8,209 of the STCA bars tort claims against
the State, its agencies, and its employees unless the State has
waived its immunity for the claim:
The State of Nebraska shall not be liable for the torts
of its officers, agents, or employees, and no suit shall
be maintained against the state, any state agency, or any
employee of the state on any tort claim except to the
extent, and only to the extent, provided by the [STCA].
Section 81-8,215 is the State’s general waiver of tort immu-
nity under the STCA.20 In relevant part, it provides that the
State “shall be liable in the same manner and to the same
extent as a private individual under like circumstances.”
[8-10] Statutes relating to the same subject, although
enacted at different times, are in pari materia and should
be construed together.21 Section 81-8,215, when read in pari
materia with § 81-8,209, operates as a limited waiver of the
State’s tort immunity, subject to specified exceptions that are
set out in § 81-8,219.22 The exceptions to the waiver of the
State’s tort immunity include claims based on the exercise

20
See Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997).
21
D.I. v. Gibson, 295 Neb. 903, 890 N.W.2d 506 (2017).
22
See Bronsen v. Dawes Cty., 272 Neb. 320, 722 N.W.2d 17 (2006). See,
also, § 81-8,215; McCormick v. City of Norfolk, 263 Neb. 693, 641
N.W.2d 638 (2002); Lawry v. County of Sarpy, 254 Neb. 193, 575 N.W.2d
605 (1998).
 - 970 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

or performance of a discretionary function by a state officer
or employee.23
[11] Under § 81-8,210, whether a plaintiff has sued a
state officer or employee in his or her individual capacity is
irrelevant to whether the STCA bars a tort claim against that
officer or employee. That is because § 81-8,210(4) defines a
tort claim to mean a claim for money damages caused by the
wrongful or negligent conduct of an officer or employee who
was acting “within the scope of his or her office or employ-
ment, under circumstances in which the state, if a private
person, would be liable to the claimant for such damage, loss,
injury, or death.” And § 81-8,209 authorizes tort liability for a
state officer or employee only to the extent the STCA permits.
So, under the STCA’s definition of a tort claim, plaintiffs are
limited to suing state officers and employees in their offi-
cial capacities.24 We have held that only when the officer or
employee was not acting within the scope of his or her office
or employment can a plaintiff pursue a tort claim against
the officer or employee individually.25 This means that if an
officer or employee was acting within the scope of his or her
office or employment and the alleged tortious conduct falls
within an exception to the State’s waiver of tort immunity,
the STCA bars a tort claim against the officer or employee,
regardless of the capacity in which he or she was purport-
edly sued.
Here, the state defendants could not have committed the
tortious acts set out in Davis’ complaint as private individ-
uals. To the extent that Davis implies that the defendants
may have acted in bad faith, that argument is relevant to

23
See § 81-8,219(1).
24
See Kruger v. Nebraska, 820 F.3d 295 (8th Cir. 2016). Accord, D.M. v.
State, 23 Neb. App. 17, 867 N.W.2d 622 (2015); Bojanski v. Foley, 18
Neb. App. 929, 798 N.W.2d 134 (2011).
25
See, e.g., Lamb v. Fraternal Order of Police Lodge No. 36, 293 Neb. 138,
876 N.W.2d 388 (2016); Bohl v. Buffalo Cty., 251 Neb. 492, 557 N.W.2d
668 (1997); D.M., supra note 24.
 - 971 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

whether the defendants are entitled to quasi-judicial immu­
nity,26 not to whether they were acting within the scope of
their office or employment. So even if they were negligent or
abused their authority, Davis’ argument that they might have
acted outside of the scope of their official duties is without
­merit.27 Accordingly, whether they were sued in their individual
capacities is irrelevant to the court’s dismissal of Davis’ negli-
gence claim.
2. State Can R aise STCA Exception
for First Time on A ppeal
At oral arguments, the State argued that Davis’ claim arose
from a false imprisonment and was therefore barred by the
intentional tort exception to the State’s waiver of immunity.
Under § 81-8,219(4), the State’s waiver of immunity does not
apply to “[a]ny claim arising out of . . . false imprisonment . .
. .” But the State conceded that it did not raise this issue to the
district court.
In Maresh v. State,28 the State chose to raise the immunity
issue as an affirmative defense. As a result, we held that the
burden to prove the defense rested on the defendant.29 We
expanded this reasoning in Sherrod v. State,30 in which we held
that exceptions to the general waiver of the STCA are matters
of defense that the State must plead and prove. And we have
repeated this holding in other cases.31

26
See Noffsinger v. Nebraska State Bar Assn., 261 Neb. 184, 622 N.W.2d
620 (2001).
27
See Lamb, supra note 25.
28
Maresh v. State, 241 Neb. 496, 489 N.W.2d 298 (1992) (superseded in
part by statute as stated in Walton v. Patil, 279 Neb. 974, 783 N.W.2d 438
(2010)).
29
Id.
30
Sherrod, supra note 20.
31
See, Hall, supra note 19; Doe v. Board of Regents, 280 Neb. 492, 788
N.W.2d 264 (2010); Reimers-Hild v. State, 274 Neb. 438, 741 N.W.2d
155 (2007); Lawry, supra note 22; Sherrod, supra note 20; D.M., supra
note 24.
 - 972 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

In Sherrod, we held that subject matter jurisdiction is
conferred by the general waiver of tort immunity found in
§ 81-8,215. We then cited four federal appellate decisions32
and a state court decision33 to hold that the government bears
the burden to plead and prove the application of an exception
to a waiver of sovereign immunity under a tort claims act.34
But not all of the cited federal cases supported our holding
that a sovereign immunity defense can be waived by failing to
plead it, and the differences are important.
We primarily relied on the Seventh Circuit’s holding in
Stewart v. United States35 that the Federal Tort Claims Act
(FTCA) “conferred general jurisdiction of the subject matter of
claims coming within its purview, and the exceptions referred
to are available to the government as a defense only when
aptly pleaded and proven.” The court “thus viewed the discre-
tionary function exception as a waivable affirmative defense
rather than an impairment of its power to adjudicate.”36
We also cited the Sixth Circuit’s holding in Carlyle v.
United States, Dept. of the Army37 that a plaintiff can invoke
jurisdiction only if the complaint is facially outside the excep-
tions of the FTCA. The court further stated that “[o]nly after
a plaintiff has successfully invoked jurisdiction by a pleading
that facially alleges matters not excepted by [the FTCA] does
the burden fall on the government to prove the applicability

32
See Stewart v. United States, 199 F.2d 517 (7th Cir. 1952). See, also,
Autery v. U.S., 992 F.2d 1523 (11th Cir. 1993); Prescott v. U.S., 973 F.2d
696 (9th Cir. 1992); Carlyle v. United States, Dept. of the Army, 674 F.2d
554 (6th Cir. 1982).
33
See State v. Zimring, 52 Haw. 477, 479 P.2d 205 (1970).
34
Sherrod, supra note 20.
35
Stewart, supra note 32, 199 F.2d at 519.
36
Richardson v. United States, 943 F.2d 1107, 1113 (9th Cir. 1991).
37
Carlyle, supra note 32.
 - 973 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

of a specific provision of [the FTCA].”38 And we cited a Ninth
Circuit case, Prescott v. U.S.,39 in which the court agreed with
the Sixth Circuit’s decision in Carlyle.
In addition to these three federal court cases that we cited
in Sherrod, the Third Circuit also holds that a defendant in an
action brought under the FTCA bears the burden to prove an
exception to the government’s waiver of immunity.40
But holding that the government bears the ultimate burden
of proof is not the same as holding that the State’s sovereign
immunity can be waived by a state attorney’s failure to raise it
as a defense. And even among federal circuit courts that have
decided the burden of proof question, they do not all agree that
the FTCA exceptions are affirmative defenses for which the
defendant bears the burden of persuasion.41 Their disparity may
stem from the U.S. Supreme Court’s discussions of the juris-
dictional nature of sovereign immunity.
The Supreme Court has clarified that a State’s 11th
Amendment immunity from suit is a convenient shorthand,
but something of a misnomer, for state sovereign immunity,
which is broader than the terms of the 11th Amendment.42
Under the 11th Amendment, an unconsenting State is immune
from federal court suits brought by its own citizens, as well
as by citizens of another State.43 The Supreme Court has held

38
Id. at 556.
39
Prescott, supra note 32.
40
See S.R.P. ex rel. Abunabba v. U.S., 676 F.3d 329 (3d Cir. 2012).
41
See, Wood v. U.S., 845 F.3d 123 (4th Cir. 2017); Tsolmon v. U.S., 841 F.3d
378 (5th Cir. 2016); Carroll v. U.S., 661 F.3d 87 (1st Cir. 2011); Garcia v.
U.S. Air Force, 533 F.3d 1170 (10th Cir. 2008); OSI, Inc. v. U.S., 285 F.3d
947 (11th Cir. 2002).
42
Northern Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 126 S. Ct.
1689, 164 L. Ed. 2d 367 (2006).
43
Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974).
 - 974 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

that states can waive their 11th Amendment immunity in
federal court and that federal courts can ignore an immunity
defense if a State has not raised it.44 It has explained that a
State can waive its 11th Amendment immunity, because the
amendment “enacts a sovereign immunity from suit, rather
than a nonwaivable limit on the Federal Judiciary’s subject-
matter jurisdiction.”45 And it has refused to hold that the
FTCA exceptions are subject to the general rule that a waiver
of sovereign immunity will be strictly construed in favor
of the sovereign.46 It has reasoned that in the context of the
FTCA, “‘unduly generous interpretations of the exceptions
run the risk of defeating the central purpose of the statute,’
. . . which ‘waives the Government’s immunity from suit in
sweeping language.’”47
But the Supreme Court has also held that “[s]overeign
immunity is by nature jurisdictional, . . . and the terms of
the United States’ ‘“consent to be sued in any court define
that court’s jurisdiction to entertain the suit.”’”48 In an FTCA
appeal, it concluded that because the United States “can
be sued only to the extent that it has waived its immu-
nity, due regard must be given to the exceptions . . . to
such waiver.”49

44
See, Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 118 S. Ct.
2047, 141 L. Ed. 2d 364 (1998); Patsy v. Florida Board of Regents, 457
U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982).
45
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S. Ct.
2028, 138 L. Ed. 2d 438 (1997).
46
Dolan v. Postal Service, 546 U.S. 481, 126 S. Ct. 1252, 163 L. Ed. 2d
1079 (2006).
47
Id., 546 U.S. at 492.
48
Henderson v. United States, 517 U.S. 654, 675-76, 116 S. Ct. 1638, 134 L.
Ed. 2d 880 (1996). Accord FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996,
127 L. Ed. 2d 308 (1994).
49
United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 48 L. Ed. 2d
390 (1976).
 - 975 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

Additionally, in United States v. Gaubert,50 the Supreme
Court imposed a pleading standard that requires a plaintiff’s
factual allegations to support a finding that the FTCA’s discre-
tionary function exception does not apply when a presumption
of discretionary conduct exists:
When established governmental policy, as expressed
or implied by statute, regulation, or agency guidelines,
allows a Government agent to exercise discretion, it
must be presumed that the agent’s acts are grounded in
policy when exercising that discretion. For a complaint
to survive a motion to dismiss, it must allege facts which
would support a finding that the challenged actions are
not the kind of conduct that can be said to be grounded in
the policy of the regulatory regime.51
Finally, the Supreme Court has held that a State’s 11th
Amendment immunity defense “sufficiently partakes of the
nature of a jurisdictional bar” that it can be raised for the
first time on appeal,52 although it has discretion to determine
that a State has waived that argument by failing to raise it
on appeal.53
Not all federal circuit courts have weighed in on which party
bears the ultimate burden of persuasion on the application of
an FTCA exception.54 Our analysis in Sherrod failed to recog-
nize this. Specifically, our quote from Autery v. U.S.,55 an 11th
Circuit case that we cited, seemed to place that court in agree-
ment with courts that hold the government bears the burden

50
United States v. Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d 335
(1991).
51
Id., 499 U.S. at 324-25.
52
Edelman, supra note 43, 415 U.S. at 678.
53
See, Patsy, supra note 44; Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42
L. Ed. 2d 532 (1975).
54
See, e.g., Gibson v. U.S., 809 F.3d 807 (5th Cir. 2016); Hart v. U.S., 630
F.3d 1085 (8th Cir. 2011).
55
Autery, supra note 32.
 - 976 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

to prove an exception.56 But the 11th Circuit explicitly declined
to decide the burden of proof question.57 To the contrary, the
court noted that the Supreme Court’s decision in Gaubert
appears to put the burden on the plaintiff to disprove the dis-
cretionary function exception.58 The 10th Circuit has similarly
noted that Gaubert casts doubt on the 9th Circuit’s holding in
Prescott—which we cited in Sherrod—that the government
bears the ultimate burden of persuasion.59 And the Sixth Circuit
found it unnecessary to decide whether Gaubert affected its
1982 holding in Carlyle 60—which we also cited in Sherrod—
that the government bore the burden to prove an FTCA excep-
tion applied if a plaintiff’s complaint was “‘facially outside the
exceptions of [28 U.S.C.] § 2680.’”61
Although the U.S. Supreme Court has not decided the ulti-
mate burden of proof question for the FTCA exceptions, most
federal circuit courts have held that the plaintiff bears the bur-
den of alleging facts that show the exceptions to the govern-
ment’s waiver of immunity under the FTCA do not deprive the
court of subject matter jurisdiction.62 That includes the Sixth
and Ninth Circuit decisions that we cited in Sherrod.63
In fact, in the Ninth Circuit case we relied on, the court
made the following statement in a footnote: “It is, of course,

56
See Sherrod, supra note 20.
57
See Autery, supra note 32. Accord Mesa v. U.S., 123 F.3d 1435 (11th Cir.
1997).
58
See id.
59
See Kiehn v. U.S., 984 F.2d 1100 (10th Cir. 1993).
60
Carlyle, supra note 32.
61
See Sharp ex rel. Estate of Sharp v. U.S., 401 F.3d 440, 443 n.1 (6th Cir.
2005).
62
See, e.g., Edison v. U.S., 822 F.3d 510 (9th Cir. 2016); Gibson, supra note
54; Zelaya v. U.S., 781 F.3d 1315 (11th Cir. 2015); Molchatsky v. U.S.,
713 F.3d 159 (2d Cir. 2013); Welch v. U.S., 409 F.3d 646 (4th Cir. 2005);
Carlyle, supra note 32.
63
See, Prescott, supra note 32; Carlyle, supra note 32.
 - 977 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

‘well-established law that . . . jurisdictional defenses cannot be
waived by the parties and may be raised for the first time on
appeal or even raised by a court sua sponte.’”64 In a previous
case, it had remanded the matter for the district court to deter-
mine whether the discretionary function applied even though
the government had not raised the exception: “[I]f the discre-
tionary function applies, the claims should be dismissed for
lack of jurisdiction. This court must consider jurisdiction even
if the parties have not challenged it.”65 Other federal circuit
courts agree that an FTCA exception can be considered for the
first time on appeal, at least where the parties do not dispute
facts relevant to the application of an exception.66
Similarly, the Eighth Circuit has held that because a court
lacks subject matter jurisdiction if an alleged act falls within
the discretionary function exception, a district court does not
err in sua sponte ruling that it lacks jurisdiction and dismissing
the plaintiff’s action, where the jurisdictional facts are undis-
puted and the exception clearly applies.67
That leaves the Seventh Circuit’s holding in Stewart v.
United States68 as the primary authority for our holding in
Sherrod that the State’s waiver of immunity can be forfeited if
the State fails to plead and prove an STCA exception. Stewart
remains good law in the Seventh Circuit,69 and, as noted, the
Third Circuit agrees.70 But in a 2016 unpublished decision,
the Third Circuit held that a federal district court did not err

64
Prescott, supra note 32, 973 F.2d at 701 n.2, citing Roberts v. U.S., 887
F.2d 899 (9th Cir. 1989).
65
Roberts, supra note 64, 887 F.2d at 900.
66
See, Garling v. U.S. E.P.A., 849 F.3d 1289 (10th Cir. 2017); Medina v.
U.S., 259 F.3d 220 (4th Cir. 2001); Hydrogen Technology Corp. v. U.S.,
831 F.2d 1155 (1st Cir. 1987).
67
See Hart, supra note 54.
68
Stewart, supra note 32.
69
See, e.g., Keller v. U.S., 771 F.3d 1021 (7th Cir. 2014).
70
See S.R.P. ex rel. Abunabba, supra note 40.
 - 978 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

in sua sponte ruling that the plaintiff’s claim was barred by
the discretionary function exception.71 It stated that although
the exception is analogous to an affirmative defense, it is also
jurisdictional on its face, which is a question that a court has
an obligation to address.72 Similarly, in a 1995 decision, the
Seventh Circuit did not treat Stewart as binding precedent
and independently decided on appeal that the relevant statutes
and regulations showed the discretionary function exception
barred the plaintiff’s claim.73
These cases illustrate that because sovereign immunity is
jurisdictional in nature, and because courts have a duty to
determine whether they have subject matter jurisdiction over
a matter, treating the FTCA exceptions as waivable affirma-
tive defenses places courts in an impossible position when
a jurisdictional problem appears on the face of a plain-
tiff’s complaint.
[12-15] This court has repeatedly held that an appellate
court has an independent duty to decide jurisdictional issues
on appeal, even if the parties have not raised the issue.74 And
when a trial court lacks the power, that is, jurisdiction, to
adjudicate the merits of a claim, an appellate court also lacks
the power to adjudicate the merits of the claim.75 We have
held that a trial court lacks subject matter jurisdiction over an
action against the State unless the State has consented to suit.76

71
See Bedell v. United States, 669 Fed. Appx. 620 (3d Cir. 2016).
72
Id.
73
See Rothrock v. U.S., 62 F.3d 196 (7th Cir. 1995).
74
E.g., J.S. v. Grand Island Public Schools, ante p. 347, 899 N.W.2d 893
(2017).
75
E.g., Landrum v. City of Omaha Planning Bd., ante p. 165, 899 N.W.2d
598 (2017).
76
See, Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb.
48, 825 N.W.2d 204 (2013); Engler v. State, 283 Neb. 985, 814 N.W.2d
387 (2012); McKenna v. Julian, 277 Neb. 522, 763 N.W.2d 384 (2009);
Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002).
 - 979 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

And lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.77 As discussed,
however, we have also held in several cases that the exceptions
to the STCA and the Political Subdivisions Tort Claims Act are
affirmative defenses that the State must plead and prove.78
We conclude that these lines of cases are irreconcilable
to the extent that the latter cases imply that a state attorney
can waive the State’s immunity from suit by failing to raise
an exception in a responsive pleading. But when a plaintiff’s
complaint shows on its face that a claim is barred by one of the
exceptions, the State’s inherent immunity from suit is a juris-
dictional issue that an appellate court cannot ignore.
[16,17] The doctrine of stare decisis requires that we adhere
to our previous decisions unless the reasons therefor have
ceased to exist, are clearly erroneous, or are manifestly wrong
and mischievous or unless more harm than good will result
from doing so.79 The doctrine is entitled to great weight, but
it does not require us to blindly perpetuate a prior interpreta-
tion of the law if we conclude the prior interpretation was
clearly incorrect.80
[18] We conclude that our cases holding that the State must
plead and prove an exception to the STCA are clearly errone-
ous to the extent they can be read to hold that a state attorney
waives an immunity defense under § 81-8,219 by failing to
raise it in a pleading or to a trial court. To the extent that they
can be so interpreted, the cases cited in footnotes 28 and 31
are overruled. We hold that an exception to the State’s waiver
of immunity under the STCA is an issue that the State may
raise for the first time on appeal and that a court may consider
sua sponte.

77
E.g., J.S., supra note 74.
78
See cases cited supra notes 28 and 31.
79
See Cano v. Walker, ante p. 580, ___ N.W.2d ___ (2017).
80
See id.
 - 980 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

[19] This holding does not mean that the State may liti-
gate factual disputes relevant to the application of an STCA
exception for the first time on appeal. But an appellate court
has the power to determine whether a plaintiff’s allegations,
taken as true, show that a tort claim is facially barred by an
STCA exception under § 81-8,219. We turn to the allegations
in Davis’ complaint.
Davis alleged that he turned himself in to authorities after
his parole officer directed him to do so because his parole
eligibility date had been miscalculated. He alleged that he was
reincarcerated for almost 2 months despite his protests that
his parole eligibility date had been correctly calculated. We
conclude that these allegations, accepted as true, are facially
within the exception to the State’s waiver of immunity for tort
claims arising out of false imprisonment.81
[20] False imprisonment is the unlawful restraint of a per-
son’s liberty against his or her will.82 Any intentional conduct
that results in the placing of a person in a position where he
or she cannot exercise his or her will in going where he or
she may lawfully go may constitute false imprisonment.83 The
Court of Appeals has previously held that a plaintiff’s claim
that prison officials detained him past his correct release date
stated a claim of false imprisonment.84 We agree and conclude
that the same reasoning applies here. Davis’ allegations that
the prison officials negligently calculated his parole eligibility
date does not preclude the application of the false imprison-
ment exception. The heart of his claim is that he was unlaw-
fully reincarcerated, and no further discovery could correct
that fundamental defect in his complaint. His negligence claim

81
See § 81-8,219(4).
82
Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).
83
Id.
84
See Cole v. Clarke, 8 Neb. App. 614, 598 N.W.2d 768 (1999). See, also,
Annot., 152 A.L.R. Fed. 605, § 5 (1999); 35A Am. Jur. 2d Federal Tort
Claims Act § 91 (2010).
 - 981 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

against the state defendants arose out of their alleged contribu-
tion to his unlawful imprisonment, their failure to correct the
mistake, or their failure to ensure that such mistakes would
not occur.
[21] As explained, under the STCA, if an officer or employee
was acting within the scope of his or her office or employment
and the alleged tortious conduct falls within an exception to
the State’s waiver of tort immunity, the STCA bars a tort claim
against the officer or employee, regardless of the capacity in
which he or she was purportedly sued. Because the State has
not consented to suit for claims arising out of a false imprison-
ment, Davis has not alleged a tort claim that is plausible on
its face against any named defendant. Although our reasoning
necessarily differs from the district court’s, we may affirm a
lower court’s ruling that reaches the correct result, albeit based
on different reasoning.85 The court did not err in dismissing
Davis’ tort claim. We turn to his § 1983 claims.
3. Validity of Davis’ § 1983 Claims Against
State Officers and Employees
Davis concedes that the court properly dismissed his § 1983
claims against the State, its agencies, and its employees in
their official capacities. But he contends that the court erred
in dismissing his § 1983 claims against the defendants in their
individual capacities. Section 1983 provides, in relevant part,
the following:
Every person who, under color of any statute, 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 . . . .

85
E.g., Phillips v. Liberty Mut. Ins. Co., 293 Neb. 123, 876 N.W.2d 361
(2016).
 - 982 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

(a) Sovereign Immunity Bars Davis’ § 1983
Claims Against State, Arms of State,
and State Defendants Sued in
Their Official Capacities
[22,23] The U.S. Supreme Court has interpreted § 1983 to
mean that “States or governmental entities that are considered
‘arms of the State’ for Eleventh Amendment purposes” are
not “persons” that can be sued under the statute.86 Whether a
state entity is an arm of the State and entitled to share its 11th
Amendment immunity is a question of federal law.87
[24,25] Under federal law, whether a money judgment
against a state entity would be enforceable against the State is
the critical consideration under § 1983 for determining whether
the entity is an arm of the State and therefore immune from
suit by private persons.88 Accordingly, we have held that a suit
against a state agency is a suit against the State and that both
the State and state agencies can assert the State’s sovereign
immunity against suit.89
[26] The Department is a state agency. Structurally, the
Parole Board is more an arm of the State than a state agency.
It is not a political subdivision or a statutorily created agency.
It is a constitutionally created body of state government that is
part of the executive branch.90 Because any judgment against
the Parole Board would be a judgment against the State, it is
cloaked with the State’s 11th Amendment immunity and cannot
be named as a defendant in an action brought under § 1983.

86
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 109 S. Ct.
2304, 105 L. Ed. 2d 45 (1989).
87
See Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 117 S. Ct. 900, 137 L.
Ed. 2d 55 (1997).
88
See Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 115
S. Ct. 394, 130 L. Ed. 2d 245 (1994). See, also, Regents of Univ. of Cal.,
supra note 87.
89
See, e.g., Anthony K. v. Nebraska Dept. of Health & Human Servs., 289
Neb. 540, 855 N.W.2d 788 (2014).
90
Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).
 - 983 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

[27,28] Similarly, the U.S. Supreme Court has interpreted
§ 1983 to mean that a state official sued in his or her offi-
cial capacity is not a person who can be sued in an action
brought under § 1983, unless the plaintiff seeks only pro-
spective relief.91 Prospective relief is permitted against state
officials, because the doctrine of Ex parte Young92 applies to
§ 1983 claims.93 Under that doctrine, a State’s 11th Amendment
immunity does not bar a suit against state officers when the
plaintiff seeks only prospective relief for ongoing violations
of federal rights.94 But when a plaintiff seeks money damages
against a state officer or employee in his or her official capac-
ity, the State is the real party in interest, because the officer’s
liability in that capacity is liability for the state entity that the
officer represents.95
Davis is not seeking prospective relief from any ongoing
official state act or policy. He is seeking money damages
for past deprivations of constitutional rights. Accordingly, the
court properly dismissed Davis’ § 1983 claims against the
State, the Parole Board, the Department, and all state defend­
ants sued in their official capacities.
(b) Personal Capacity Claims Under § 1983
[29] Under 42 U.S.C. § 1983, the State’s sovereign immu-
nity does not bar a claim for damages against state officials
and employees who are sued in their personal capacities.96

91
See Will, supra note 86. Accord Wilkinson v. Dotson, 544 U.S. 74, 125 S.
Ct. 1242, 161 L. Ed. 2d 253 (2005).
92
Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).
93
See Will, supra note 86.
94
See Doe, supra note 31, citing Verizon Md. Inc. v. Public Serv. Comm’n of
Md., 535 U.S. 635, 122 S. Ct. 1753, 152 L. Ed. 2d 871 (2002).
95
See Anthony K., supra note 89, citing Kentucky v. Graham, 473 U.S. 159,
105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985).
96
See, Hafer v. Melo, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991).
Accord, e.g., Suarez Corp. Industries v. McGraw, 125 F.3d 222 (4th Cir.
1997).
 - 984 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

Personal capacity claims “seek to impose individual liability
upon a government officer for actions taken under color of
state law.”97 The U.S. Supreme Court has clarified that an
earlier reference it made to the capacity in which an officer or
employee acted “is best understood as a reference to the capac-
ity in which the state officer is sued, not the capacity in which
the officer inflicts the alleged injury.”98
[30,31] “‘[T]o establish personal liability in a § 1983 action,
it is enough to show that the official, acting under color of
state law, caused the deprivation of a federal right.’”99 Acting
under the color of state law does not mean that a state official
or employee must have been complying with state law. Under
§ 1983, liability exists as long as the action was taken within
the scope of the defendant’s official authority, even if the offi-
cial or employee abused his or her authority.100
[32] But state defendants are entitled to assert personal
common-law immunity defenses against a § 1983 action.101
­
“While the plaintiff in a personal-capacity suit need not estab-
lish a connection to governmental ‘policy or custom,’ officials
sued in their personal capacities, unlike those sued in their
official capacities, may assert personal immunity defenses such
as objectively reasonable reliance on existing law.’”102
The state defendants argue that they are entitled to two
types of personal immunity defenses against Davis’ § 1983
claims: absolute immunity and qualified immunity. Before
discussing the defendants’ immunity defenses, we consider the

97
Hafer, supra note 96, 502 U.S. at 25.
98
Id., 502 U.S. at 26.
99
Id., 502 U.S. at 25 (emphasis in original), citing Graham, supra note 95.
100
West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988);
Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961),
overruled on other grounds, Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).
101
See Filarsky v. Delia, 566 U.S. 377, 132 S. Ct. 1657, 182 L. Ed. 2d 662
(2012).
102
Hafer, supra note 96, 502 U.S. at 25, quoting Graham, supra note 95.
 - 985 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

validity of Davis’ claims that the state defendants violated his
due process and Eighth Amendment rights.
(c) Deliberate Indifference to a Plaintiff’s Unlawful
Incarceration States Substantive Due Process
or Eighth Amendment Violation
[33] Under the Due Process Clause of the federal
Constitution, “[n]o state shall . . . deprive any person of life,
liberty, or property, without due process of law . . . .”103 The
Due Process Clause provides both procedural and substantive
protections.104
[34] In Morrissey v. Brewer,105 the U.S. Supreme Court held
that parolees have a valuable liberty interest in their continued
parole even though it depends upon their compliance with
parole conditions. Parole is therefore protected by the 14th
Amendment and requires at least minimal procedural protec-
tions before a State can terminate it.106
But Davis has raised a substantive due process argument.
He claims that the state defendants were deliberately indif-
ferent to his repeated claim, before and after his reincar-
ceration, that because the mandatory minimum sentence did
not apply to him, he had been properly released on parole.
Relatedly, he argues that the defendants violated his Eighth
Amendment right to be free from incarceration without a peno-
logical justification.
Federal courts have addressed both substantive due process
claims and Eighth Amendment claims resting on a plaintiff’s
unlawful detention or incarceration. Regardless of the asserted
right, these cases require a plaintiff to show the same level

103
U.S. Const. amend. XIV, § 1.
104
See, e.g., Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278,
293, 739 N.W.2d 742, 756 (2007), citing Harrah Independent School Dist.
v. Martin, 440 U.S. 194, 99 S. Ct. 1062, 59 L. Ed. 2d 248 (1979).
105
Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484
(1972).
106
Id.
 - 986 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

of culpability for a State’s failure to investigate the plaintiff’s
claim that he or she was being unlawfully held: deliber-
ate indifference.
[35-38] The “‘touchstone of due process is protection of
the individual against arbitrary action of government,’ . . .
whether the fault lies in a denial of fundamental procedural
fairness . . . or in the exercise of power without any reason-
able justification in the service of a legitimate governmental
objective.”107 The “due process protection in the substantive
sense limits what the government may do in both its legisla-
tive . . . and its executive capacities.”108 But the “criteria to
identify what is fatally arbitrary differ depending on whether
it is legislation or a specific act of a governmental officer that
is at issue.”109 “[O]nly the most egregious official conduct
can be said to be ‘arbitrary in the constitutional sense.’”110
“[T]he substantive component of the Due Process Clause
is violated by executive action only when it ‘can properly
be characterized as arbitrary, or conscience shocking, in a
constitutional sense.’”111 “[L]iability for negligently inflicted
harm is categorically beneath the threshold of constitutional
due process.”112
The U.S. Supreme Court applied these principles in Baker
v. McCollan,113 a case from the Fifth Circuit involving the
respond­ ent’s mistaken arrest on a warrant and a sheriff’s
office’s unlawful detention of him for 3 days, despite informa-
tion at the office that would have revealed the mistake. The

107
County of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S. Ct. 1708,
140 L. Ed. 2d 1043 (1998).
108
Id., 523 U.S. at 846.
109
Id.
110
Id.
111
Id., 523 U.S. at 847.
112
Id., 523 U.S. at 849.
113
See Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 443
(1979).
 - 987 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

sheriff verified the respondent’s claim as soon as he learned
about it and released him.114 The Fifth Circuit held that the
sheriff had a “duty to exercise due diligence in making sure
that the person arrested and detained is actually the person
sought under the warrant and not merely someone of the same
or a similar name.”115 It concluded that a jury could find the
sheriff was not entitled to qualified immunity because he had
caused the respondent’s detention by unreasonably failing to
have adequate identification procedures in place.
The Supreme Court reversed. It concluded that the Fifth
Circuit erred in applying tort principles to conclude that the
sheriff had violated the respondent’s constitutional right to be
free of a liberty deprivation without due process of law. The
Court acknowledged that at some point, an unlawful detention
would cause a constitutional deprivation:
Obviously, one in the respondent’s position could not be
detained indefinitely in the face of repeated protests of
innocence even though the warrant under which he was
arrested and detained met the standards of the Fourth
Amendment. . . . We may even assume, arguendo, that,
depending on what procedures the State affords defend­
ants following arrest and prior to actual trial, mere deten-
tion pursuant to a valid warrant but in the face of repeated
protests of innocence will after the lapse of a certain
amount of time deprive the accused of “liberty . . . with-
out due process of law.”116
But the Court concluded that a 3-day detention could not
show a constitutional deprivation. “[F]alse imprisonment does
not become a violation of the Fourteenth Amendment merely
because the defendant is a state official.”117

114
Id.
115
McCollan v. Tate, 575 F.2d 509, 513 (5th Cir. 1978), reversed, Baker,
supra note 113.
116
Baker, supra note 113, 443 U.S. at 144-45.
117
Id., 443 U.S. at 146.
 - 988 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

[39] In Baker, the Court had no need to determine the
applicable culpability standard for a valid unconstitutional
detention claim, because it concluded that the respondent had
failed to show a constitutional deprivation. But normally, when
a State holds an individual in custody, the requisite level of
conscience-shocking conduct is deliberate indifference, sub-
­
ject to the caveat that the standard is “sensibly employed only
when actual deliberation is practical.”118
It is true that courts usually apply the deliberate indiffer-
ence standard of culpability when a State has failed to provide
for an inmate’s basic needs.119 But federal courts of appeals
have applied the deliberate indifference standard to substantive
due process claims involving wrongful detentions.120 “When
‘actual deliberation is practical,’ establishing a substantive-
due-­process violation requires proof of deliberate indifference
. . . .”121 Some federal courts have explicitly distinguished
Baker, concluding that the short duration of that detention was
crucial to the decision and that Baker did not preclude liability
under § 1983 for all false imprisonment claims.122
But in cases involving both an unlawful pretrial detention
and an overdetention of an inmate, federal courts have held
that state officials who are deliberately indifferent to an indi-
vidual’s claim that he or she is being unlawfully detained vio-
late the individual’s substantive due process right to be free
from wrongful incarceration without due process of law.123

118
See County of Sacramento, supra note 107, 523 U.S. at 851.
119
See id.
120
See, e.g., Davis v. Hall, 375 F.3d 703 (8th Cir. 2004); Cannon v. Macon
County, 1 F.3d 1558 (11th Cir. 1993), modified on denial of rehearing 15
F.3d 1022 (11th Cir. 1994).
121
See Scott v. Baldwin, 720 F.3d 1034, 1036 (8th Cir. 2013).
122
See, e.g., Davis, supra note 120, Cannon, supra note 120; Sanders v.
English, 950 F.2d 1152 (5th Cir. 1992); Haygood v. Younger, 769 F.2d
1359 (9th Cir. 1985).
123
See, Davis, supra note 120 (citing cases); Cannon, supra note 120.
 - 989 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

Similarly, federal courts have held that detaining an inmate
after the expiration of his or her sentence without penological
justification is an Eighth Amendment violation when prison
officials are deliberately indifferent to the inmate’s liberty
interest.124 These parallel lines of cases exist because the U.S.
Supreme Court has held that conditions of pretrial detention
are analyzed under the Due Process Clause, while condi-
tions of incarceration after a conviction are analyzed under
the Eighth Amendment.125 But the culpability standard is
the same.
Finally, in an action under Bivens v. Six Unknown Fed.
Narcotics Agents126 “(the § 1983 counterpart for actions against
federal officials),”127 the Ninth Circuit held that federal prison
officials who were deliberately indifferent to an inmate’s claim
that they had miscalculated his release date were not entitled
to qualified immunity.128 The court reasoned that the officials
had violated a clear duty to investigate his claim under federal
regulations and policies when he raised a substantial question
regarding the accuracy of the agency calculation on which the
officials had relied in ignoring his protests.
In sum, whether a plaintiff’s § 1983 claim rests on an alleged
violation of the 8th or 14th Amendment or a government offi-
cial’s violation of a clear regulatory duty intended to protect
those rights, federal courts have expressly or implicitly pre-
mised liability on a finding that the government officials were

124
See, Burke v. Johnston, 452 F.3d 665 (7th Cir. 2006); Moore v. Tartler, 986
F.2d 682 (3d Cir. 1993); Haygood, supra note 122.
125
See, Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447
(1979); Wharton v. Danberg, 854 F.3d 234 (3d Cir. 2017).
126
See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct.
1999, 29 L. Ed. 2d 619 (1971).
127
Powers v. Hamilton Cty. Pub. Def. Comm., 501 F.3d 592, 610 (6th Cir.
2007).
128
Alexander v. Perrill, 916 F.2d 1392 (9th Cir. 1990). See, also, Burke,
supra note 124.
 - 990 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

deliberately indifferent in failing to investigate the plaintiff’s
claim that his sentence was miscalculated.129 Deliberate indif-
ference represents the consensus of federal appellate courts on
the type of government overdetention or false imprisonment
that will result in a constitutional deprivation.
[40] We therefore hold that a plaintiff states a cognizable
constitutional violation under the 8th or 14th Amendment
when the plaintiff alleges that a state defendant—who had
knowledge of the plaintiff’s complaint that he or she was being
unlawfully detained and the authority to investigate that com-
plaint—was deliberately indifferent to the plaintiff’s liberty
interest and the defendant’s failure to take action resulted in
the plaintiff’s continued unlawful detention for more than an
insignificant period.
Davis alleged the state defendants were deliberately indif-
ferent to his protests that they had miscalculated his parole
eligibility date and alleged he was reincarcerated for more
than an insignificant amount of time. So we turn to the rea-
sons that the district court dismissed his claims.
(d) Court Properly Dismissed Davis’ § 1983
Claim Against Parole Board and Its
Past and Current Members
[41] The court implicitly concluded that the Parole Board
and its members had absolute immunity from Davis’ claims by
ruling that its members were performing a quasi-judicial func-
tion. Public officials performing a quasi-judicial function have
absolute immunity from damages for acts they commit within
the scope of that function.130 A quasi-judicial function refers to
one that is closely related to the judicial process.131
[42] In determining whether to grant quasi-judicial immu-
nity, courts examine the nature of the functions with which

129
See, Burke, supra note 124; Davis, supra note 120, Moore, supra note
124; Alexander, supra note 128.
130
See Frey v. Blanket Corp., 255 Neb. 100, 582 N.W.2d 336 (1998).
131
See Noffsinger, supra note 26.
 - 991 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

a particular official or class of officials has been lawfully
entrusted to evaluate the effect that exposure to particular
forms of liability would likely have on the appropriate exercise
of those functions.132
[W]here an officer is invested with discretion and is
empowered to exercise his or her judgment in matters
brought before the officer, he or she is sometimes called a
quasi-judicial officer and when so acting, is usually given
immunity from liability to persons who may be injured
as the result of an erroneous decision, provided the acts
complained of are done within the scope of the offi-
cer’s authority and without willfulness, malice, or corrup-
tion. . . . However, quasi-judicial immunity from any suit
or damages based upon the performance of duties within
a person’s authority attaches not to particular offices, but
to particular official functions.133
We have previously recognized that the Parole Board exer-
cises independent discretion in deciding whether to grant parole
to a convicted offender.134 In addition, federal appellate courts
hold that parole boards have absolute immunity from suit when
they perform quasi-judicial functions such as granting, deny-
ing, or revoking parole.135
But Davis contends that the Parole Board was not exercising
discretion in revoking his parole, because it was not reviewing
his conduct while on parole. He argues that the revocation
hearing dealt only with the calculation of his parole eligibility,
which is a ministerial function to which quasi-judicial immu-
nity does not attach. Davis argues that instead of exercising
discretion, the Board blindly followed the Department’s lead

132
Id.
133
Id. at 188-89, 622 N.W.2d at 624.
134
See Pratt v. Nebraska Bd. of Parole, 252 Neb. 906, 567 N.W.2d 183
(1997).
135
See, Swift v. California, 384 F.3d 1184 (9th Cir. 2004); Montero v. Travis,
171 F.3d 757 (2d Cir. 1999); Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir.
1996); Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir. 1990).
 - 992 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

in incorrectly applying a mandatory minimum sentencing stat-
ute to revoke his parole.
At oral arguments, Davis relied on our decision in Pratt v.
Nebraska Bd. of Parole.136 He argued that it showed the Parole
Board was not entitled to immunity here, because it was not
exercising discretion. In Pratt, we considered an earlier version
of § 83-1,110, which set out the calculation requirements for
determining an offender’s parole eligibility date. We held that
the finding of parole eligibility is a ministerial duty that can be
enforced through a writ of mandamus. When we decided Pratt,
a recommendation of parole from an inmate’s sentencing judge
was a circumstance that required the Parole Board to consider
the inmate for parole, and such a letter had been presented to
the Parole Board. We stated that unlike the decision whether to
grant parole,
a finding of eligibility for parole was not discretionary.
Rather, it was the duty of the Board to recognize the
offender’s parole eligibility upon a showing of certain
facts, regardless of the Board’s own judgment or opinion
concerning the propriety or impropriety of such a deter-
mination. Therefore, the Board’s duty to recognize [the
prisoner’s] parole eligibility was ministerial. The Board
did not have to grant [him] parole, but it had the duty to
consider him for parole.137
[43] But this case is distinguishable from Pratt, because
the Parole Board was not refusing to exercise its discretion
to grant a parole. It was exercising its discretion to revoke
a parole in reliance on information provided to it from the
Department. Nebraska’s statutes require the Department to
provide the Parole Board with its calculations,138 and the Parole
Board is entitled to rely on them. Davis points to no statute or

136
Pratt, supra note 134.
137
Id. at 911, 567 N.W.2d at 188.
138
See Neb. Rev. Stat. §§ 83-1,107 (Cum. Supp. 2016) and 83-1,109 (Reissue
2014).
 - 993 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

regulation that requires the Parole Board to perform its own
calculations or investigations. Its mere reliance on evidence
presented to it does not change the nature of its function of
exercising independent discretion whether to grant, deny, or
revoke parole. Accordingly, the district that did not err in dis-
missing Davis’ § 1983 claims against the Parole Board’s past
or current members.

(e) Department’s Employees Are Entitled
to Qualified Immunity From
Davis’ § 1983 Claims
The court ruled that the state defendants who were not mem-
bers of the Parole Board were entitled to qualified immunity
from his due process and Eighth Amendment claims or that
Davis had not alleged their personal participation in an alleged
constitutional violation with sufficient specificity.

(i) General Principles of Qualified Immunity
[44,45] Most executive officials and employees are lim-
ited to asserting qualified immunity as an affirmative defense
against a personal capacity claim under § 1983.139 Qualified
immunity shields state officials from money damages unless
a plaintiff alleges facts that would, if proved, show (1) the
official violated a federally guaranteed right and (2) the consti-
tutional or statutory right was clearly established at the time of
the challenged conduct.140 A court can address the two compo-
nents of the qualified immunity analysis in either order.141

139
See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396
(1982).
140
See, Filarsky, supra note 101; Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.
Ct. 2074, 179 L. Ed. 2d 1149 (2011); Elder v. Holloway, 510 U.S. 510,
114 S. Ct. 1019, 127 L. Ed. 2d 344 (1994). Accord, e.g., Potter v. Board of
Regents, 287 Neb. 732, 844 N.W.2d 741 (2014); Ashby v. State, 279 Neb.
509, 779 N.W.2d 343 (2010).
141
Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565
(2009); Potter, supra note 140.
 - 994 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

[46,47] Because qualified immunity is immunity from suit,
a trial court should try to resolve “‘immunity questions at the
earliest possible stage in litigation.’”142 “‘[W]hether an official
protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the
“objective legal reasonableness” of the action, assessed in light
of the legal rules that were “clearly established” at the time it
was taken.’”143
[48] Whether a federal right is clearly established presents
a question of law.144 A court must consider whether the law is
clearly established as it relates to the particular facts of a case:
“[C]learly established law” should not be defined “at a
high level of generality.” . . . As this Court explained
decades ago, the clearly established law must be “par-
ticularized” to the facts of the case. . . . Otherwise,
“[p]laintiffs would be able to convert the rule of quali-
fied immunity . . . into a rule of virtually unquali-
fied liability simply by alleging violation of extremely
abstract rights.”145
The unlawfulness of a defendant’s conduct must be obvious or
apparent in the light of preexisting law.146 That is, the contours
of the right must be sufficiently clear that a reasonable official
would understand that his or her conduct violates that right.147
[49,50] To show a clearly established federal right, the U.S.
Supreme Court does “‘not require a case [to be] directly on

142
Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272
(2001), overruled in part on other grounds, Pearson, supra note 141.
143
Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S. Ct. 1235, 182 L.
Ed. 2d 47 (2012), quoting Anderson v. Creighton, 483 U.S. 635, 107 S. Ct.
3034, 97 L. Ed. 2d 523 (1987).
144
Elder, supra note 140.
145
White v. Pauly, ___ U.S. ___, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463
(2017) (citations omitted).
146
Id.
147
See, e.g., Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).
 - 995 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

point, but existing precedent must have placed the statutory or
constitutional question beyond debate.’”148 Additionally, both
the Supreme Court and federal circuit courts have stated that a
federal right can be established by a robust consensus of cases
of persuasive authority.149
[51] Showing that a state defendant was negligent is insuf-
ficient to defeat a qualified immunity defense.150 “Qualified
immunity gives government officials breathing room to
make reasonable but mistaken judgments and protects all
but the plainly incompetent or those who knowingly violate
the law.”151
(ii) Application of Qualified Immunity Principles
to Department Employees
Davis alleged that he continually told Department employ-
ees verbally and through letters that his parole eligibility date
had been correctly calculated and that the mandatory minimum
sentence did not apply to him. The court essentially concluded
that there was no clearly established right to have an error-free
parole revocation and that the defendants’ mistaken belief that
Davis’ parole eligibility date was incorrect did not strip them
of qualified immunity.
We agree that Davis had no right to an error-free proceed-
ing. However, the qualified immunity issues were whether the
defendants were deliberately indifferent to Davis’ oral and writ-
ten protests—before and after they reincarcerated him—that

148
Taylor v. Barkes, ___ U.S. ___, 135 S. Ct. 2042, 2044, 192 L. Ed. 2d 78
(2015).
149
See, e.g., Ashcroft, supra note 140; Wilson v. Layne, 526 U.S. 603, 119
S. Ct. 1692, 143 L. Ed. 2d 818 (1999); Booker v. South Carolina Dept. of
Corrections, 855 F.3d 533 (4th Cir. 2017); De La Rosa v. White, 852 F.3d
740 (8th Cir. 2017); Mammaro v. N.J. Div. of Child Prot. and Permanency,
814 F.3d 164 (3d Cir. 2016).
150
See, Potter, supra note 140; Ashby, supra note 140.
151
Potter, supra note 140, 287 Neb. at 740, 844 N.W.2d at 750, citing
Messerschmidt, supra note 143.
 - 996 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

they had calculated his parole eligibility date incorrectly, and
whether a reasonable Department official or employee should
have known that the time the Department took to correct the
calculation of Davis’ parole eligibility date was unlawful in
light of the clearly established law.
The court could not know whether the Department employ-
ees were deliberately indifferent to Davis’ protests or which
employees or officials would have seen his letters protest-
ing his reincarceration. The State did not file a responsive
pleading. It is true that the Department’s second release of
Davis 2 months later is some indication that its employees
investigated his complaint. But giving Davis the benefit of all
reasonable inferences, his allegations could equally suggest
that for a significant period of this time, the Department’s
employees did nothing to investigate. This is a reasonable
inference because the computation did not involve complex
facts or laws.
But we do not believe that at the time of Davis’ reincarcera-
tion, the law clearly established that the Department employees
would violate a federal right by failing to promptly respond to
Davis’ claim that they had miscalculated his parole eligibility
date. Both the Eighth Circuit and the Seventh Circuit have
held that under both the 8th and 14th Amendments, inmates
have a clearly established right to be free from wrongful,
prolonged incarceration.152 And we conclude that extending
this rule to wrongful recommitments based on a miscalculated
parole eligibility date is required by the U.S. Supreme Court’s
holding in Morrissey that parolees have a valuable liberty
interest in their continued parole.153
But the typical miscalculation case involves a State’s wrong-
ful incarceration of an inmate beyond his or her release date.
Davis has not pointed to a case in which a court has held
that a State has or can violate an offender’s 14th Amendment

152
See, Figgs v. Dawson, 829 F.3d 895 (7th Cir. 2016); Scott, supra note 121.
153
See Morrissey, supra note 105.
 - 997 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

rights by being deliberately indifferent to the parolee’s claim
that he or she has been wrongly reincarcerated. Our research
has uncovered only one somewhat comparable federal appel-
late decision dealing with a parolee’s delayed release from
parole.154 Moreover, in Morrissey, the Court held that a lapse
of 2 months before a parolee receives a revocation hearing for
an alleged parole violation is not unreasonable.155
Given this precedent and the paucity of persuasive case law
dealing with a State’s deliberate indifference to a parolee’s
claim of a mistaken revocation, the Department’s officials
and employees did not violate a clearly established right to a
prompt investigation of Davis’ complaint.

(f) Court Properly Dismissed Davis’ § 1983
Claim Against State Defendants With
No Responsibility for Parole
Eligibility Calculations
[53] Vicarious liability is unavailable in a § 1983 action:
“[A] plaintiff must plead that each Government-official defend­
ant, through the official’s own individual actions, has violated
the Constitution.”156 But even if Davis could show that the
state defendants had knowledge of his complaints and were
deliberately indifferent to them, he could not show that they
should have known they would violate a clearly established
right by doing so. The court therefore did not err in dismissing
his § 1983 claims against all the defendants.
Because we conclude that the state defendants were entitled
to qualified immunity against Davis’ § 1983 claims against the
defendants, we do not reach his assignment that the court erred
in determining that he had failed to plead his § 1983 claims
with sufficient specificity.

154
See Hankins v. Lowe, 786 F.3d 603 (7th Cir. 2015).
155
See Morrissey, supra note 105.
156
Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009).
 - 998 -
Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
DAVIS v. STATE
Cite as 297 Neb. 955

4. Davis’ Opportunity to A mend
Finally, Davis argues that he asked the court for leave to
amend during the hearing and that the court erred in dismiss-
ing his complaint without giving him that opportunity. Under
§ 6-1115(a), a “party may amend [its] pleading once as a mat-
ter of course before a responsive pleading is served.”
The district court did not specify whether it was dismissing
Davis’ complaint with prejudice, but we agree that this was
the court’s intent. Nevertheless, there is no need to separately
consider the appropriateness of that dismissal. Our review of
Davis’ appeal has subsumed his argument that the court erred
in dismissing his complaint without an opportunity to amend.
And that review has led us to the conclusion that an amend-
ment would not cure the defects in Davis’ complaint.
VI. CONCLUSION
Regarding Davis’ negligence claim, we conclude that the
claim rests on allegations that the state defendants unlaw-
fully reincarcerated him because they miscalculated his parole
eligibility date. As such, his claim is one arising out of false
imprisonment, which is a claim barred by sovereign immunity,
because it is specifically excepted from the State’s waiver of
immunity under the STCA. Although the defendants did not
raise this exception to the district court, we conclude that an
STCA exception can be raised for the first time on appeal and
considered by a court sua sponte.
Regarding Davis’ § 1983 claims, the court did not err in
dismissing his claims against the Parole Board, because its
members were entitled to absolute quasi-judicial immunity
from suit and the Parole Board itself is an arm of the State
that cannot be sued in a § 1983 action. The court also did not
err in dismissing Davis’ § 1983 claims against the remaining
state defendants, because he cannot show that they violated a
clearly established right to a prompt investigation of Davis’
complaint that he was wrongly reincarcerated.
A ffirmed.