Davis v. State, S-16-355.

CourtSupreme Court of Nebraska
Writing for the CourtFunke, J.
Citation297 Neb. 955,902 N.W.2d 165
Parties Johnnie W. DAVIS, appellant, v. STATE of Nebraska et al., appellees.
Docket NumberNo. S-16-355.,S-16-355.
Decision Date06 October 2017

297 Neb. 955
902 N.W.2d 165

Johnnie W. DAVIS, appellant,
STATE of Nebraska et al., appellees.

No. S-16-355.

Supreme Court of Nebraska.

Filed October 6, 2017.

Charles E. Wilbrand and Jeanelle R. Lust, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., Lincoln, for appellant.

Douglas J. Peterson, Attorney General, Bijan Koohmaraie, and David A. Lopez, Lincoln, for appellees.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Funke, J.


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

297 Neb. 961

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 district court concluded that all of Davis' claims were barred by sovereign

902 N.W.2d 176

immunity, qualified immunity, or pleading deficiencies, 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 absolute or qualified immunity.


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


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.

297 Neb. 962


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 provide 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 minimum term of ten years and a maximum term of not more than sixty years....5

Other mandatory minimums apply if a defendant has been convicted 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

902 N.W.2d 177

of a felony for which a mandatory minimum sentence is prescribed shall not be eligible for probation."8 Second, the offender cannot become

297 Neb. 963

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


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 mandatory 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.


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

297 Neb. 964

chairperson, and a current and former member. He sued all of the state officers and employees in their official and individual 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 reincarceration 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

902 N.W.2d 178

of institutional oversight, implementing policies, and training; 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, ...

297 Neb. 965

constitute[d] punishment, [and] reflect[ed] deliberate indifference to the known and obvious consequences to [him]." For his § 1983 Eighth Amendment claim, he alleged that the defendants' "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.


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 jurisdiction over Davis' parole revocation, the court should dismiss Davis' claims against the other defendants. Alternatively, they argued that...

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