Schaeffer v. Frakes

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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
Bernard Schaeffer, appellant, v.
Scott Frakes et al., appellees.
___ N.W.2d ___
Filed August 21, 2020. No. S-19-938.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo,
accepting the allegations in the complaint as true and drawing all rea-
sonable 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. Constitutional Law: Actions. A civil remedy is provided under 42
U.S.C. § 1983 (2012) for deprivations of federally protected rights,
statutory or constitutional, caused by persons acting under color of
state law.
4. ____: ____. In order to assert a claim under 42 U.S.C. § 1983 (2012),
the plaintiff must allege that he or she has been deprived of a federal
constitutional right and that such deprivation was committed by a person
acting under color of state law.
5. Sentences. The meaning of a sentence is, as a matter of law, determined
by the contents of the sentence itself.
6. Due Process. A plaintiff asserting the inadequacy of procedural due
process must first establish that the government deprived him or her of
interests which constitute “liberty” or “property” within the meaning of
the Due Process Clause.
7. Due Process: Public Officers and Employees. The due process protec-
tion in its substantive sense limits what the government may do in both
its legislative and its executive capacities. But the criteria to identify
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306 Nebraska Reports
SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
what is fatally arbitrary differ depending on whether it is legislation or a
specific act of a government officer that is at issue.
8. ____: ____. The substantive component of the Due Process Clause is
violated by executive action only when it can properly be characterized
as arbitrary, or conscience shocking, in a constitutional sense.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Gerald L. Soucie for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Papik, J.
Bernard Schaeffer alleges in this action brought under
42 U.S.C. § 1983 (2012) that officials within the Nebraska
Department of Correctional Services (DCS) violated his federal
constitutional rights in the calculation of his parole eligibil-
ity date. The district court dismissed Schaeffer’s complaint,
finding that the U.S. Supreme Court’s decision in Wilkinson
v. Dotson, 544 U.S. 74, 78, 125 S. Ct. 1242, 161 L. Ed. 2d
253 (2005), precluded him from bringing his complaint under
§ 1983 because he sought to challenge “‘the fact or duration of
his confinement.’” On Schaeffer’s appeal of the district court’s
dismissal, we find that Schaeffer has failed to adequately allege
that his federal constitutional rights were violated, as he must
to proceed under § 1983, and thus affirm.
BACKGROUND
Schaeffer’s Convictions.
The following details are summarized from Schaeffer’s
complaint: On May 26, 1977, Schaeffer was arrested in Hall
County, Nebraska, for first degree murder. He later pleaded
guilty to first degree murder in the district court for Hall
County. Schaeffer was still a juvenile when the murder was
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306 Nebraska Reports
SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
committed. On September 30, he was sentenced to life impris-
onment. This sentence was mandatory under then-existing
Nebraska law.
On April 12, 1979, Schaeffer was sentenced on an assault
conviction in the district court for Lancaster County. He was
sentenced to a term of 1 to 2 years’ imprisonment, which was
to be served consecutively to any other sentences being served.
DCS combined this sentence with his earlier life sentence into a
single sentence of imprisonment for life plus 1 to 2 years.
On May 25, 1983, Schaeffer was sentenced on another
assault conviction in the district court for Lancaster County.
He was sentenced to a term of 12 to 40 years’ imprisonment,
which was to be served consecutively to any other sentences
being served. DCS combined the sentence with his earlier sen-
tences into a single sentence of imprisonment for life plus 13
to 42 years.
Schaeffer was not entitled to credit for time served from
the date of his arrest in May 1977 because he received a life
sentence. He was not entitled to credit for time served on
either of his assault convictions because he was already serv-
ing a sentence at the time of those convictions. Because he
was serving a combined sentence of imprisonment for life plus
13 to 42 years, he could not earn “good time” toward parole
or discharge.
Initial Postconviction Proceeding
and Resentencing.
On April 4, 2013, Schaeffer filed a verified motion for
postconviction relief in the district court for Hall County alleg-
ing that his life sentence was void or voidable under the 8th
or 14th Amendments to the U.S. Constitution as a result of
the U.S. Supreme Court decision in Miller v. Alabama, 567
U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). On
February 24, 2016, the district court for Hall County entered an
order granting postconviction relief and vacating Schaeffer’s
life sentence.
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306 Nebraska Reports
SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
After a sentencing hearing, the district court for Hall County
resentenced Schaeffer on his first degree murder conviction on
January 3, 2017. Schaeffer was sentenced to 70 to 90 years’
imprisonment. The district court also stated that Schaeffer was
entitled to credit for time served dating back to his May 26,
1977, arrest. The district court concluded this amounted to
14,472 days.
The district court provided a truth-in-sentencing advisement.
The district court stated that on the new first degree murder
sentence alone, Schaeffer would be parole eligible after 35
years, assuming maximum good time, and his mandatory dis-
charge date would be after 45 years, again assuming maximum
good time. The district court went on to say:
“However, considering the additional sentences to be
served out of Lancaster County with aggregate sentences
of 13 to 42 years, under current good-time law, you will
be parole eligible after 41.5 years[,] assuming maximum
good time, less credit for time served, and your manda-
tory discharge date would be after 66 years, again assum-
ing maximum good time, less credit for time served.”
Schaeffer filed a direct appeal, but later moved to dismiss it.
Dispute Regarding Schaeffer’s
Parole Eligibility Date.
DCS determined that Schaeffer will not be eligible for
parole until February 20, 2033. Schaeffer alleges that DCS
applied 1975 Neb. Laws, L.B. 567, to calculate his parole eli-
gibility date. L.B. 567 was the good time law in effect at the
time of Schaeffer’s convictions. Schaeffer asserts that DCS
should have calculated his parole eligibility date by applying
the good time law in effect at the time of his resentencing,
which he claims is 2011 Neb. Laws, L.B. 191. See Neb. Rev.
Stat. § 83-1,107 (Cum. Supp. 2018). Schaeffer also alleges that
the parole eligibility date determined by DCS conflicts with the
truth-in-sentencing advisement provided by the district court
for Hall County.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
Schaeffer filed another motion for postconviction relief in
which he attempted to challenge DCS’ determination of his
parole eligibility date. The district court denied relief, explain-
ing that Schaeffer had not shown that his sentence was uncon-
stitutional, but had only challenged postsentencing actions
by DCS.
Schaeffer also filed various grievances with DCS in which
he alleged that it had not correctly calculated his parole eligi-
bility date. DCS’ responses to those grievances explained how
DCS was calculating Schaeffer’s parole eligibility date and
maintained it was doing so correctly.
Schaeffer alleged that there are other individuals in the cus-
tody of DCS who also had life sentences vacated under Miller,
supra, but have had their parole eligibility dates calculated
differently. Schaeffer identified nine inmates who were sen-
tenced to life without parole but also had other term of years
sentences for which no presentencing credit was awarded. He
alleged that after these inmates were resentenced, they, unlike
him, received “day-for-day” good time credit to determine
their parole eligibility date. According to Schaeffer, if he
would have received the same “day-for-day” credit for good
time, he would have been eligible for parole as of November
28, 2018.
§ 1983 Action.
Schaeffer made the foregoing allegations in a complaint
filed against three DCS officials (collectively referred to
as “DCS”) in the district court for Lancaster County under
§ 1983. Schaeffer contended that by determining that his parole
eligibility date was February 20, 2033, DCS violated his rights
under various provisions of the U.S. Constitution. In particular,
he alleged that DCS violated his right to be free from cruel
and unusual punishment under the 8th Amendment, his right to
due process of law under the 14th Amendment, and his right to
equal protection under the 14th Amendment.
Schaeffer sought a declaration that DCS’ determination of
his parole eligibility date violated the provisions of the U.S.
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SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
Constitution described above and an order enjoining DCS
from enforcing their determination of his parole eligibility
date. He also sought attorney fees under 42 U.S.C. § 1988
(2012). Schaeffer did not seek a declaration of his parole eli-
gibility date under state law.
DCS successfully moved to dismiss Schaeffer’s complaint.
The district court concluded that Schaeffer’s action could not
proceed under the U.S. Supreme Court’s decision in Wilkinson
v. Dotson, 544 U.S. 74, 78, 125 S. Ct. 1242, 161 L. Ed. 2d 253
(2005), which prohibits prisoners in state custody from using
a § 1983 action to challenge “‘the fact or duration of [their]
confinement.’” The district court concluded that Schaeffer was
attacking the duration of his confinement by seeking an earlier
parole eligibility date.
Schaeffer appeals the dismissal of his § 1983 action.
ASSIGNMENT OF ERROR
Schaeffer assigns that the district court erred by granting
DCS’ motion to dismiss.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo, accepting the allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. Salem Grain Co. v. Consolidated
Grain & Barge Co., 297 Neb. 682, 900 N.W.2d 909 (2017). 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. Davis v. State, 297 Neb. 955, 902
N.W.2d 165 (2017). In cases in which a plaintiff does not or
cannot allege specific facts showing a necessary element, the
factual allegations, taken as true, are nonetheless plausible if
they suggest the existence of the element and raise a reasonable
expectation that discovery will reveal evidence of the element
or claim. Id.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
ANALYSIS
Exception to § 1983 for Suits Challenging
Fact or Duration of Confinement.
[3,4] A civil remedy is provided under § 1983 for depriva-
tions of federally protected rights, statutory or constitutional,
caused by persons acting under color of state law. Waldron
v. Roark, 292 Neb. 889, 874 N.W.2d 850 (2016). In order to
assert a claim under § 1983, the plaintiff must allege that he or
she has been deprived of a federal constitutional right and that
such deprivation was committed by a person acting under color
of state law. Id.
The district court found that Schaeffer’s claims could not be
brought under § 1983, not because he failed to plausibly allege
that he had been deprived of a federal constitutional right, but
because he asserted such claims in order to challenge the fact
or duration of his confinement. The district court concluded
that the U.S. Supreme Court’s opinion in Wilkinson, supra,
precluded claims that sought such relief from being asserted in
a § 1983 action and thus dismissed Schaeffer’s complaint.
The parties’ initial briefs on appeal focused exclusively on
whether Schaeffer sought to challenge the fact or duration of
his confinement and thus whether the U.S. Supreme Court’s
opinion in Wilkinson precluded Schaeffer from seeking such
relief under § 1983. Schaeffer argued that because he was not
seeking immediate release from custody in this action, he was
not challenging the fact or duration of his confinement and
Wilkinson permitted him to pursue his claims under § 1983.
The State argued that Wilkinson did not permit a challenge
to the calculation of an inmate’s parole eligibility date. After
oral argument, we directed the parties to file supplemental
briefs addressing whether Schaeffer adequately alleged a fed-
eral constitutional violation under any of the theories asserted
in his complaint.
We determine that it is not necessary to decide whether
Schaeffer’s action is an impermissible challenge to the fact
or duration of his confinement under Wilkinson because, even
assuming it is not, his complaint did not adequately allege
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306 Nebraska Reports
SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
any violations of his federal constitutional rights and thus the
district court did not err by dismissing his complaint for fail-
ure to state a claim. Before explaining our reasoning for this
conclusion, we pause briefly to reject the assertion made in
Schaeffer’s supplemental brief that we may not, under Weber v.
Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009), consider
whether he adequately alleged a violation of his constitutional
rights in the absence of a cross-appeal from DCS.
Schaeffer invokes two propositions from Weber, but neither
applies here. One is that an appellee’s argument that a lower
court’s decision should be upheld on grounds specifically
rejected below constitutes a request for affirmative relief, and
the appellee must cross-appeal in order for that argument to be
considered. That proposition has no application here because
the district court did not specifically reject an argument that
Schaeffer failed to adequately allege any federal constitutional
violations; its order spoke only to its conclusion that Schaeffer
was impermissibly challenging the fact or duration of his con-
finement under § 1983.
The other proposition Schaeffer invokes is that an appellate
court will not consider an issue on appeal that was not pre-
sented to or passed upon by the trial court. That also does not
apply here. Whether Schaeffer stated a claim upon which relief
can be granted under § 1983 is the issue presented on appeal,
and the district court “passed upon” that issue. Although the
district court did not dismiss Schaeffer’s complaint by consid-
ering his alleged federal constitutional violations one by one, it
did conclude that Schaeffer failed to state a claim upon which
relief could be granted under § 1983. See Gonzalez v. Union
Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011) (consid-
ering alternative grounds for affirming dismissal of complaint
for failure to state claim).
Eighth Amendment.
We begin our analysis of Schaeffer’s individual alleged
constitutional violations with his claim that DCS violated his
Eighth Amendment right to be free from cruel and unusual
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SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
punishment when it determined that he would not be eligible
for parole until February 20, 2033. In support of his argument
that he has stated a plausible claim for relief under the Eighth
Amendment, Schaeffer relies on Miller v. Alabama, 567 U.S.
460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Schaeffer
argues that Miller imposes an Eighth Amendment procedural
requirement in cases in which a defendant was sentenced to
life without parole for an offense committed before reaching 18
years of age. In those cases, he contends, Miller requires that
the sentencing court determine the date at which the defendant
will become eligible for parole. And because he understands
the district court for Hall County to have determined that he
would be eligible for parole on November 28, 2018, Schaeffer
contends DCS has violated his Eighth Amendment rights by
concluding otherwise.
[5] Schaeffer is essentially arguing that the sentencing court’s
truth-in-sentencing advisement must prevail over the terms of
the pronounced sentence. This has been rejected as a matter of
state law. We have held that the meaning of a sentence is, as a
matter of law, determined by the contents of the sentence itself.
State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). We have
also held that the pronounced terms of imprisonment prevail
over any conflicting truth-in-sentencing advisements. See id.
We do not understand Schaeffer to challenge these principles
of state law generally, but to argue that Miller requires that
they not be followed in this unique context.
We do not, however, understand Miller to stand for the
proposition Schaeffer argues. In Miller, petitioners commit-
ted homicide offenses when 14 years of age and received life
without the possibility of parole sentences as mandated by state
law. The petitioners challenged their life without the possibility
of parole sentences as violating the Eighth Amendment.
The U.S. Supreme Court observed that petitioners’ chal-
lenges implicated “precedent reflecting our concern with pro-
portionate punishment.” Miller, 567 U.S. at 470. The Court
noted that both its decision in Roper v. Simmons, 543 U.S.
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551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), holding that the
Eighth Amendment did not permit capital punishment for an
offense committed by a juvenile, and its decision in Graham
v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010), holding that the same constitutional provision prohib-
ited a life without parole sentence for a nonhomicide offense
committed by a juvenile, recognized that juveniles were dif-
ferent than adults in various ways relevant to sentencing. In
particular, the Court noted its prior conclusions that, compared
to adults, juveniles were not as mature, they were more sus-
ceptible to negative outside influences, and their character
traits were less fixed. Although it recognized that its decisions
in Roper and Graham did not directly address a mandatory
life without parole sentence for a homicide, it concluded that
such a sentence nonetheless violated the “foundational prin-
ciple” recognized in those cases: that “imposition of a State’s
most severe penalties on juvenile offenders cannot proceed as
though they were not children.” Miller v. Alabama, 567 U.S.
460, 474, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Based
on this reasoning, the Court held in Miller that “the Eighth
Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” 567
U.S. at 479.
Schaeffer’s Eighth Amendment claim is much different than
the claims asserted by the petitioners in Miller. Unlike the peti-
tioners in Miller, Schaeffer is not contending that his Eighth
Amendment rights were violated because he was sentenced
to a mandatory term of life without the possibility of parole.
Schaeffer did successfully challenge his initial sentence for
first degree murder on this basis, but he was resentenced and
he does not allege that the district court did not follow Miller
upon resentencing.
Rather than alleging that his sentence does not comply with
the dictates of Miller, Schaeffer contends that DCS ran afoul
of Miller when it calculated his parole eligibility date after
resentencing. But contrary to Schaeffer’s assertion otherwise,
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SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
we see nothing in Miller holding that the Eighth Amendment
requires that sentencing courts select the specific date on
which a juvenile offender will be eligible for parole or that a
sentencing court’s advisement to a defendant as to when he or
she will be eligible for parole must be given controlling effect
by executive officials. Miller held that mandatory life impris-
onment without the possibility of parole sentences for juvenile
offenders violate the Eighth Amendment; it does not speak
to constitutional requirements regarding the calculation of a
parole eligibility date.
Because the basis for his claim is not legally viable, we con-
clude Schaeffer has failed to state a plausible claim for relief
under the Eighth Amendment.
Due Process.
Schaeffer also alleges that DCS violated his 14th Amendment
right to due process of law when it determined that he would
not be eligible for parole until February 20, 2033. We thus
consider whether Schaeffer has stated a plausible due proc­
ess claim.
The Due Process Clause of the federal Constitution has
been interpreted to provide both procedural and substantive
protections. See Davis v. State, 297 Neb. 955, 902 N.W.2d 165
(2017). In its procedural sense, it polices the procedures under
which the government seeks to deprive individuals of life,
liberty, or property. See County of Sacramento v. Lewis, 523
U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). In its
substantive sense, it guards against the exercise of government
power without adequate justification. See id.
[6] A plaintiff asserting the inadequacy of procedural due
process must first establish that the government deprived
him or her of interests which constitute “liberty” or “prop-
erty” within the meaning of the Due Process Clause. Doe v.
Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010),
overruled on other grounds, Davis, supra. If the plaintiff can
establish the deprivation of such an interest, the next question
is whether the procedures followed by the government were
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SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
constitutionally adequate. See Swarthout v. Cooke, 562 U.S.
216, 131 S. Ct. 859, 178 L. Ed. 2d 732 (2011).
In his supplemental brief, Schaeffer appears to argue that he
has alleged a procedural due process violation. In that brief,
he asserts that he is being deprived of a liberty interest and
that the State was required to offer fair procedures to vindicate
that interest. Schaeffer seems to argue that he has a liberty
interest in having his parole date accurately calculated accord-
ing to state law.
In Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99
S. Ct. 2100, 60 L. Ed. 2d 668 (1979), the U.S. Supreme Court
rejected the argument that a liberty interest in parole arises
whenever a state provides for the possibility of parole. The
Court went on to hold, however, that state statutes may create
liberty interests in parole release that are entitled to protec-
tion under the Due Process Clause. The Court concluded that
the mandatory language of a Nebraska statute setting forth the
circumstances under which an inmate was entitled to parole
created an “expectancy of release” and that this was a liberty
interest entitled to due process protection. Greenholtz, 442 U.S.
at 12. The U.S. Supreme Court applied Greenholtz to reach
essentially the same conclusion regarding Montana’s parole
system in Board of Pardons v. Allen, 482 U.S. 369, 107 S. Ct.
2415, 96 L. Ed. 2d 303 (1987).
While Greenholtz involved mandatory language in the stat-
ute governing the circumstances in which an inmate was
­entitled to an order of parole, Schaeffer argues that there is
similarly mandatory statutory language governing when an
inmate is eligible for parole. Here, Schaeffer points us to
§ 83-1,107, as well as Neb. Rev. Stat. §§ 83-1,110 (Reissue
2016) and 83-1,111 (Cum. Supp. 2018), and contends these
statutes frame the duty to calculate a prisoner’s parole eligibil-
ity date in mandatory terms and thus must also create a liberty
interest entitled to due process protection.
But even if we assume Schaeffer has demonstrated that
Nebraska’s parole eligibility statutes create a liberty interest
entitled to due process protection, it does not follow that he
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SCHAEFFER v. FRAKES
Cite as 306 Neb. 904
has stated a procedural due process claim. As noted above,
even if a protected liberty or property interest is established,
to prevail on a procedural due process claim, a plaintiff must
also show that the procedures followed by the government rela-
tive to that interest were constitutionally inadequate. See, e.g.,
Swarthout, supra. As we will explain, Schaeffer has not alleged
facts suggesting constitutionally inadequate procedures.
The U.S. Supreme Court has held that even when, as in
Greenholtz and Allen, a state statute creates a liberty interest in
parole, the procedures required are minimal. In Greenholtz, the
Court held that the prisoner received adequate process because
he was allowed the opportunity to be heard and was provided
a statement of reasons why parole was denied. The Court held
that “[t]he Constitution does not require more.” Id., 442 U.S.
at 16.
More recently, in Swarthout v. Cooke, 562 U.S. 216, 131 S.
Ct. 859, 178 L. Ed. 2d 732 (2011), the U.S. Supreme Court
reaffirmed that the procedures required when a state creates a
liberty interest in the parole context are limited. In Swarthout,
the Court reversed decisions of the U.S. Court of Appeals for
the Ninth Circuit holding that prisoners in California state cus-
tody were entitled to federal habeas relief because they were
denied parole in violation of their right to due process. The
Court began its analysis by observing that even if California
had created a liberty interest in parole, Greenholtz required
only that the prisoners be given an opportunity to be heard and
a statement of the reasons why parole was denied. Because the
prisoners in Swarthout received this amount of process, that
“should have been the beginning and the end” of the inquiry
into whether they received due process. 562 U.S. at 220. The
Ninth Circuit erred, the Court explained, by going on to review
whether the decision by California state officials to deny parole
was correct. As the Court put it, “[b]ecause the only federal
right at issue is procedural, the relevant inquiry is what process
[the prisoners] received, not whether the state court decided the
case correctly.” Id., 562 U.S. at 222.
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Cite as 306 Neb. 904
When the reasoning of Greenholtz and Swarthout is applied
to Schaeffer’s allegations, it becomes apparent that he has
not adequately alleged that he did not receive procedural due
process. Schaeffer’s complaint discloses that he had and took
advantage of multiple opportunities to communicate with DCS
as to his view of how his parole eligibility date ought to be
calculated. It also discloses that DCS provided explanations
for its contrary calculation of his parole eligibility date. Thus,
even assuming that Schaeffer had a liberty interest concerning
his parole eligibility date, his own complaint indicates that he
was provided with the minimal process required.
It is not clear that Schaeffer is contending that he also stated
a violation of substantive due process. His supplemental brief
speaks only of fair procedures rather than the outcome of those
procedures. Furthermore, we read the language in Swarthout
that the “only federal right at issue is procedural” to, at the
very least, cast doubt on whether there is a substantive due
process right to a particular outcome in the parole context.
562 U.S. at 222. But even if we assume such a right exists,
Schaeffer has not stated a plausible claim that his right to sub-
stantive due process was violated.
[7,8] The due process protection in its substantive sense
limits what the government may do in both its legislative and
its executive capacities. Davis v. State, 297 Neb. 955, 902
N.W.2d 165 (2017). But the criteria to identify what is fatally
arbitrary differ depending on whether it is legislation or a
specific act of a government officer that is at issue. Id. The
substantive component of the Due Process Clause is violated
by executive action only when it can properly be characterized
as arbitrary, or conscience shocking, in a constitutional sense.
Id. A litigant seeking to establish that a government action is
arbitrary or conscience shocking in the constitutional sense
faces a high bar. See, e.g., Buckley v. Ray, 848 F.3d 855 (8th
Cir. 2017).
We do not believe Schaeffer has alleged any facts that
meet the high bar of conscience-shocking government action.
At bottom, Schaeffer’s complaint in this action is that DCS
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improperly calculated his parole eligibility date under state
law. It is well accepted, however, that a mere violation of
state law, without more, does not rise to the level of conscience
shocking. See, e.g., Draper v. City of Festus, Mo., 782 F.3d 948
(8th Cir. 2015); Doe ex rel. Magee v. Covington County School
Dist., 675 F.3d 849 (5th Cir. 2012); J.R. v. Gloria, 593 F.3d 73
(1st Cir. 2010).
Equal Protection.
This leaves only Schaeffer’s claim that DCS has violated
his right to equal protection under the 14th Amendment to
the federal Constitution. In analyzing this claim, we must
note at the outset that Schaeffer’s claim is unlike most equal
protection claims. In most equal protection claims, a plaintiff
alleges that some state action unlawfully discriminates between
classes or groups of people. So, to note just a few examples,
a plaintiff might claim that the government is committing an
equal protection violation by treating people below a certain
age differently than those above a certain age, see, e.g., State
v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019); by treating
males differently than females, see, e.g., Friehe v. Schaad, 249
Neb. 825, 545 N.W.2d 740 (1996); or by treating people with
one color of skin differently than those with another, see, e.g.,
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98
L. Ed. 373 (1954). Some courts have referred to such claims
as a “traditional, class-based” equal protection claim. See, e.g.,
Davis v. Prison Health Services., 679 F.3d 433, 442 (6th Cir.
2012). Accord Flowers v. City of Minneapolis, Minn., 558 F.3d
794 (8th Cir. 2009).
Schaeffer, on the other hand, is not claiming that the gov-
ernment is unlawfully treating him differently than others
based on his belonging to any group or because he shares
some trait or characteristic held by others. He is instead
alleging that in calculating his parole eligibility date, DCS is
singling out him and him alone for unfair treatment, specifi-
cally by calculating his parole eligibility date differently than
it has for other individuals in Nebraska who were ordered
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to be resentenced based on Miller v. Alabama, 567 U.S. 460,
132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). This, Schaeffer
contends, is sufficient to proceed under a “class-of-one” equal
protection theory as recognized by the U.S. Supreme Court
in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct.
1073, 145 L. Ed. 2d 1060 (2000). Supplemental brief for
appellant at 17.
In Olech, a property owner alleged that the municipality in
which she lived conditioned connecting its water supply to her
property on granting the municipality a 33-foot easement. The
property owner alleged that the municipality had required only
a 15-foot easement from other property owners. The property
owner sued, alleging that the 33-foot easement demand was
“‘irrational and wholly arbitrary’” and “motivated by ill will”
as a result of the property owner’s previous filing of an unre-
lated, successful lawsuit against the municipality. Id., 528 U.S.
at 563. The case eventually reached the U.S. Supreme Court,
which noted that it had in the past “recognized successful
equal protection claims brought by a ‘class-of-one,’ where the
plaintiff alleges that she has been intentionally treated differ-
ently from others similarly situated and that there is no rational
basis for the difference in treatment.” Id., 528 U.S. at 564.
The Court found that the complaint in Olech stated a claim
for relief under this theory, concluding that it alleged that the
municipality intentionally treated her differently than similarly
situated property owners and that this difference in treatment
was “‘irrational and wholly arbitrary.’” Id., 528 U.S. at 565.
Olech thus recognizes that, at least in some circumstances, a
plaintiff may pursue an equal protection claim without alleging
mistreatment based on membership in a class or group. But see
Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 128 S.
Ct. 2146, 170 L. Ed. 2d 975 (2008) (holding that class-of-one
equal protection claim is not cognizable in context of pub-
lic employment).
While post-Olech courts have reached somewhat different
conclusions about what exactly a plaintiff must prove in order
to prevail on a class-of-one theory, a subject we will return
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to in a moment, there is a consensus that certain elements are
required. There is widespread agreement that a class-of-one
plaintiff must at least show (1) the defendant treated him or
her differently from others similarly situated, (2) the defendant
did so intentionally, and (3) there was no rational basis for the
difference in treatment. See, e.g., Madar v. U.S. Citizenship
and Immigration Services, 918 F.3d 120 (3d Cir. 2019). See,
also, Zell v. Ricci, 957 F.3d 1 (1st Cir. 2020); Crain v. City of
Selma, 952 F.3d 634 (5th Cir. 2020); Johnson v. Morales, 946
F.3d 911 (6th Cir. 2020); Mensie v. City of Little Rock, 917
F.3d 685 (8th Cir. 2019); King v. Rubenstein, 825 F.3d 206 (4th
Cir. 2016). We agree with these courts that, at the very least,
Olech requires a class-of-one plaintiff to show these three ele-
ments. In doing so, we acknowledge that some have criticized
a threshold similarly situated requirement in the context of
traditional class-based equal protection claims. See State v.
Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019) (Stacy, J., con-
curring). In the class-of-one context, however, such a require-
ment appears to be mandated by Olech.
Before turning to Schaeffer’s allegations, we must elabo-
rate on one of the required elements in a class-of-one equal
protection claim—the requirement that the alleged discrimina-
tory treatment was done intentionally. To say that an act must
have been done “intentionally” could mean different things.
In some legal contexts, an act is intentional if it is done with
volition or with awareness of consequences. See, e.g., Keith
N. Hylton, Intent in Tort Law, 44 Val. U.L. Rev. 1217 (2010).
In the equal protection context, however, intent has a differ-
ent meaning. In Personnel Administrator of Mass. v. Feeney,
442 U.S. 256, 279, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979),
the U.S. Supreme Court held in an equal protection case that
discriminatory intent requires “more than intent as volition or
intent as awareness of consequences. . . . It implies that the
decisionmaker . . . selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.”
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A number of courts have concluded that a plaintiff proceed-
ing under a class-of-one equal protection theory must also
show intentional discrimination in the sense that concept was
understood in Feeney. For example, in SECSYS, LLC v. Vigil,
666 F.3d 678 (10th Cir. 2012), then-Judge Gorsuch authored
an opinion in a case before the U.S. Court of Appeals for the
10th Circuit, explaining that summary judgment was appro-
priate on the plaintiff’s class-of-one claim because it could
not prove that the defendants acted with discriminatory intent
in the Feeney sense of that phrase. Other courts have also
concluded that the Feeney definition of discriminatory intent
applies in class-of-one claims. See, e.g., Integrity Collision
Center v. City of Fulshear, 837 F.3d 581, 589 (5th Cir. 2016)
(holding in class-of-one case that plaintiff must show discrimi-
natory intent, i.e., that decision at issue was made “at least in
part because of its discriminatory effect on [plaintiffs] rather
than mere knowledge that adverse consequences will result”);
Tuffendsam v. Dearborn County Bd. of Health, 385 F.3d 1124,
1127 (7th Cir. 2004) (citing Feeney, supra, and explaining
that defendants must have intentionally treated plaintiff worse
“in the sense of wanting her to be made worse off than oth-
ers”); Greco v. Senchak, 25 F. Supp. 3d 512, 519 (M.D. Pa.
2014) (holding that in order for class-of-one plaintiff to prove
intentional discrimination, it must be shown that “‘the deci-
sionmaker selected or reaffirmed a particular course of action
at least in part because of, not merely in spite of, its adverse
effects’”); Pariseau v. City of Brockton, 135 F. Supp. 2d 257
(D. Mass. 2001) (same).
We agree that to prove the intentional discrimination ele-
ment of a class-of-one claim, a plaintiff must prove discrimi-
natory intent in the same manner that it must be proved in
traditional class-based claims, i.e., that the defendant selected
or reaffirmed a particular course of action because of its
adverse effect and not merely with knowledge that effect
would occur. This, of course, requires a slight modification
in class-of-one claims. Because such claims do not allege that
the defendant took action because of the plaintiff’s affiliation
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with a particular class or group, the plaintiff must show that
the defendant treated the plaintiff as it did because of who
the plaintiff is. See SECSYS, LLC, supra; William D. Araiza,
Flunking the Class-of-One/Failing Equal Protection, 55 Wm.
& Mary L. Rev. 435, 455 (2013) (“[p]roperly harmonizing the
‘“because of”, not merely “in spite of ”’ formula [in] class-
of-one claims should therefore require that the official have
singled out the plaintiff because of who the plaintiff is—that is,
because of her identity”) (emphasis omitted).
We reach this conclusion for multiple reasons. First, apply-
ing the same standard as used in traditional class-based
equal protection claims is consistent with the U.S. Supreme
Court’s observation that the “class-of-one theory [is] not so
much a departure from” as it is “an application of” traditional
equal protection principles. Engquist v. Oregon Dept. of
Agriculture, 553 U.S. 591, 602, 128 S. Ct. 2146, 170 L. Ed.
2d 975 (2008).
Further, this understanding of the intentional discrimina-
tion requirement prevents the class-of-one theory from making
the reasonableness of nearly all governmental decisions at all
levels potential matters of federal equal protection law. Ever
since the U.S. Supreme Court decided Village of Willowbrook
v. Olech, 528 U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d
1060 (2000), many courts have expressed concerns about the
potential scope of the class-of-one theory. As one court put
it, “unless carefully circumscribed, the concept of a class-of-
one equal protection claim could effectively provide a federal
cause of action for review of almost every executive and
administrative decision made by state actors.” Jennings v. City
of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir. 2004). In a
concurring opinion, Judge Posner of the U.S. Court of Appeals
for the Seventh Circuit illustrated the concern regarding the
scope of the class-of-one theory by asking whether it would
require federal courts to review whether police officers acted
rationally if they, as part of random enforcement efforts, tick-
eted one driver for speeding when another driver going slightly
faster on the same spot of highway moments earlier was not
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pulled over. See Bell v. Duperrault, 367 F.3d 703 (7th Cir.
2004) (Posner, J., concurring).
As explained in SECSYS, LLC v. Vigil, 666 F.3d 678 (10th
Cir. 2012), however, a requirement that a class-of-one plaintiff
show discriminatory intent addresses this concern. Referring
to Judge Posner’s highway speeders hypothetical, then-Judge
Gorsuch explained that the requirement that the plaintiff
prove the defendant took the action because it would have
an adverse effect on the plaintiff forecloses any class-of-one
claim because the hypothetical police officer is not ticketing
the driver “because of who [the driver] is.” Id., 666 F.3d at 690
(emphasis in original).
We recognize that some courts have held that a success-
ful class-of-one claim requires proof that the defendant was
motivated by “animus” toward the plaintiff. See, e.g., Hilton
v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000);
Patterson v. American Fork City, 67 P.3d 466 (Utah 2003).
See, also, 1 Ivan E. Bodensteiner & Rosalie Berger Levinson,
State & Local Government Civil Rights Liability § 1:15 at
1-1124 n.116 (2020) (collecting cases). Others point out that
a defend­ant could act with discriminatory intent without har-
boring a vindictive motive. See, e.g., SECSYS, LLC, supra.
While it seems unquestionable that a plaintiff could establish
discriminatory intent by proving that the defendant was moti-
vated by animus toward the plaintiff, it is not necessary for
us to decide in this case whether discriminatory intent must
be shown by proof of animus because, as we will explain,
Schaeffer’s complaint fails to allege that DCS acted with any
discriminatory intent.
Schaeffer’s complaint does allege that DCS “intentionally”
treated him differently than similarly situated inmates when
it calculated his parole eligibility date. This conclusory asser-
tion, however, is nothing more than a “threadbare recital[]
of the elements of a cause of action,” which is not entitled
to be accepted as true for purposes of a motion to dismiss.
See Holloway v. State, 293 Neb. 12, 27, 875 N.W.2d 435,
448 (2016).
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Conclusory assertions aside, Schaeffer does not allege any-
thing suggesting that DCS calculated his parole eligibility
date with discriminatory intent. Schaeffer’s complaint certainly
alleges facts suggesting that DCS acted intentionally in the
sense that its officials acted with volition and an awareness of
consequences when it calculated Schaeffer’s parole eligibil-
ity date. There are no factual allegations, however, suggesting
that DCS calculated Schaeffer’s parole eligibility date as it did
because doing so would be adverse to Schaeffer or because
it wanted to single out Schaeffer for unequal treatment. No
reason is offered, for example, for why DCS would alleg-
edly treat Schaeffer differently than others similarly situated.
Neither is anything alleged suggesting that DCS would have
calculated the parole eligibility date differently if someone else
were in Schaeffer’s shoes. See, SECSYS, LLC, 666 F.3d at 690
(explaining that to prove discriminatory intent, plaintiff must
show defendant took action at issue “because of who [plaintiff]
is”) (emphasis in original); William D. Araiza, Flunking the
Class-of-One/Failing Equal Protection, 55 Wm. & Mary L.
Rev. 435 (2013).
For some courts, the absence of any allegations in a com-
plaint suggesting that the defendants acted with discriminatory
intent would alone be enough to conclude that the plaintiff
failed to state a claim on a class-of-one equal protection theory.
See, e.g., Greco v. Senchak, 25 F. Supp. 3d 512 (M.D. Pa.
2014); Pariseau v. City of Brockton, 135 F. Supp. 2d 257 (D.
Mass. 2001); Patterson v. American Fork City, supra; Lakeside
Builders, Inc. v. Planning Bd. of Town of Franklin, 2002 WL
31655250 (D. Mass. Mar. 21, 2002). Not only, however, has
Schaeffer failed to plead facts suggesting that the defendants
acted with discriminatory intent, the facts he has pleaded sug-
gest they did not. This will require some elaboration, which we
provide below.
As part of his attempt to allege an equal protection viola-
tion under a class-of-one theory, Schaeffer identifies nine
other individuals he claims are similarly situated to him but
who had their parole eligibility dates calculated differently.
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Schaeffer alleges that the nine identified individuals are simi-
larly situated because each of them, like him, received a life
sentence from a Nebraska court which was later vacated under
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L.
Ed. 2d 407 (2012), and each of them, like him, also received
a sentence for other crimes prior to being resentenced as
required by Miller.
Upon closer scrutiny, however, it becomes clear that
Schaeffer’s circumstances are more similar to some of his pro-
posed comparators than others. Schaeffer alleges that Douglas
Mantich, Christopher Garza, Johnny Ray, Jason Golka, Rodney
Stewart, and Brian D. Smith were sentenced for other crimes
at the time they were sentenced to imprisonment for life.
Schaeffer, on the other hand, received his term of years sen-
tences for assault in other proceedings in another district court
years after he received his life sentence. In addition to this
difference, the term of years sentences of Golka, Smith, and
Luigi Grayer were initially ordered to be served concurrently
to their life sentences, while Schaeffer’s were ordered to be
served consecutively. Further, Schaeffer alleges that when both
Stewart and Grayer were resentenced, the sentencing court
ordered their new post-Miller sentence to run concurrently to
their earlier term of years sentences, but he makes no such
allegation about his own resentencing.
Schaeffer’s circumstances more closely mirror two of his
other proposed comparators, Ahmad Jackson and Justeen
Williams. He alleges that they, like him, received a life sen-
tence for a murder conviction and then later were convicted of
other crimes and received term of years sentences that were
ordered to be served consecutively to their life sentences. And,
as it turns out, the two proposed comparators Schaeffer identi-
fies as having their parole eligibility dates calculated under a
good time law other than L.B. 191 are Jackson and Williams.
Schaeffer alleges that DCS used 1997 Neb. Laws, L.B. 364,
and 1992 Neb. Laws, L.B. 816, respectively, to calculate the
parole eligibility dates of Jackson and Williams. According to
Schaeffer’s allegations, DCS used the good time law in effect
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at the time of Jackson’s subsequent term of years sentence in
2004, L.B. 364, to calculate his parole eligibility date, just as
it used the good time law in effect at the time of Schaeffer’s
term of years sentences for assault, L.B. 567, to calculate his
parole eligibility date. While Schaeffer alleges DCS used L.B.
816 to calculate Williams’ parole eligibility date, his complaint
fails to allege when Williams was sentenced for assault on a
confined person.
DCS’ use of good time laws other than L.B. 191 to calculate
the parole eligibility dates of Schaeffer, Jackson, and Williams
indicates that it is not using L.B. 567 to calculate Schaeffer’s
parole eligibility date because of who Schaeffer is or because it
wishes to single him out for unequal treatment. Rather, it sug-
gests that DCS believes that inmates like Schaeffer, Jackson,
and Williams, who after receiving a life sentence received a
term of years sentence ordered to be served consecutively to
the life sentence, are to have their parole eligibility date calcu-
lated using the good time law in effect at the time of their term
of years sentence.
Schaeffer, as we have noted, contends that DCS’ under-
standing of how parole eligibility is to be calculated under
state law is incorrect. But even if Schaeffer is right about that,
it does not follow that he has alleged an equal protection vio-
lation. See Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397,
88 L. Ed. 497 (1944) (“not every denial of a right conferred
by state law involves a denial of the equal protection of the
laws”). In fact, in this context, if DCS is acting pursuant to
an understanding of what state law requires, even if mistaken,
that undermines rather than supports the notion that it is act-
ing with the requisite discriminatory intent. See Hu v. City of
New York, 927 F.3d 81, 94 (2d Cir. 2019) (requiring plaintiff
alleging class-of-one equal protection claim to “‘exclude the
possibility that the defendant acted on the basis of a mis-
take’”). Because we conclude that Schaeffer has not alleged
facts suggesting that DCS acted with discriminatory intent, we
find that he has failed to plead a plausible class-of-one equal
protection claim.
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Returning briefly to the subject of state law, we note in
closing that we have not determined whether DCS has cor-
rectly calculated Schaeffer’s parole eligibility date under state
law. At oral argument, Schaeffer’s counsel made clear that his
complaint did not seek a determination as to the correct cal-
culation of Schaeffer’s parole eligibility date under state law.
And we have been able to determine that Schaeffer has failed
to adequately allege any federal constitutional claims without
deciding that issue.
CONCLUSION
Because we find that Schaeffer has failed to adequately
allege that DCS violated his federal constitutional rights in any
respect, we find that the district court did not err in dismissing
his complaint for failure to state a claim and thus affirm.
Affirmed.
Freudenberg, J., not participating.