Kellogg v. Nebraska Dept. of Corr. Servs.

Citation269 Neb. 40,690 N.W.2d 574
Decision Date07 January 2005
Docket NumberNo. S-03-603.,S-03-603.
PartiesLuke A. KELLOGG, appellant, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES et al., appellees.
CourtSupreme Court of Nebraska

690 N.W.2d 574
269 Neb. 40

Luke A. KELLOGG, appellant,

No. S-03-603.

Supreme Court of Nebraska.

January 7, 2005.

690 N.W.2d 576
Sue Ellen Wall, of Wall Law Office, for appellant

Luke A. Kellogg, pro se.

Jon Bruning, Attorney General, and Linda L. Willard, Lincoln, for appellees.




Appellant Luke A. Kellogg is currently committed to the Nebraska Department of Correctional Services (DCS) and, at all times relevant hereto, was incarcerated at the Tecumseh State Correctional Institution. On February 21, 2003, Kellogg filed a complaint in the district court for Johnson County against the DCS and the following DCS employees, individually and in their official capacities: Harold W. Clarke, Randy Kohl, Frank Hopkins, Mike Kenney, Dallen Johnsen, and Richard Elliott (collectively appellees). In his complaint, Kellogg alleged that appellees had violated his constitutional and statutory rights and privileges under Neb.Rev.Stat. § 20-148 (Reissue 1997); title II of the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. §§ 12131 to 12165 (2000 & Supp. I 2001); and 42 U.S.C. § 1983 (2000). Appellees filed a motion to dismiss. Following a hearing, the district court sustained appellees' motion and dismissed Kellogg's complaint without leave to replead.

Kellogg appealed to the Nebraska Court of Appeals. Appellees filed a motion for summary affirmance under Neb. Ct. R. of Prac. 7B(2) (rev.2001), in which they acknowledged

690 N.W.2d 577
having been served individually and officially. The Court of Appeals granted the motion and summarily affirmed without an opinion the district court's order of dismissal. Kellogg filed a petition for further review which this court granted

For the reasons explained below, we determine that Kellogg has abandoned his purported claim under § 20-148 and that his ADA claim has been rendered moot. With regard to Kellogg's § 1983 claim, we conclude that Kellogg's complaint is sufficient to state a cognizable claim and in particular that, contrary to appellees' assertion on appeal, Kellogg has sufficiently alleged that he has exhausted his available administrative remedies. We therefore determine that the district court erred in dismissing Kellogg's complaint and that the Court of Appeals erred in affirming the order of the district court. Accordingly, we reverse the decision of the Court of Appeals and remand the cause to the Court of Appeals with directions to reverse the judgment of the district court and remand the cause for further proceedings consistent with this opinion.


On February 21, 2003, Kellogg filed a complaint against appellees. As we read the complaint, Kellogg alleges that appellees violated his rights under § 20-148 (generally pertaining to deprivation of constitutional and statutory rights, privileges, or immunities); title II of the ADA (generally prohibiting discrimination in denial of benefits by public entity due to disability); and § 1983 (generally providing for civil action to enforce civil rights). In support of these three claims, Kellogg has made a variety of allegations, some of which we summarize. Kellogg claims to suffer from multiple sclerosis, "chronic urinary retention," and "hypospadious [sic]." Kellogg alleges that appellees have subjected him to "bodily harm" due to their "arbitrariness," "negligence," and "deliberate indifference" concerning Kellogg's medical conditions. He further alleges that due to these conditions, he has been unable to provide a urine sample within the given time period required to comply with the DCS' drug testing program. Kellogg alleges that appellees have discriminated against him by failing to provide him with reasonable accommodations to meet his alleged disabilities. In this regard, Kellogg claims that he had requested and been denied accommodation in the form of a blood test as an alternative to providing a urine sample.

Kellogg further alleges that due to his inability to provide a urine sample to permit him to comply with the drug testing requirement, and, pursuant to Drug Offender Classification Policy Directive 00-013 (DOC rules), he has been classified as a drug offender and disciplined several times therefor. The "discipline" imposed includes suspension of visitation and telephone privileges. Kellogg also alleges he has lost "good time." Finally, Kellogg alleges that he "has exhausted available administrative remedies pursuant to Title 42 U.S.C.A. §§ 1997(e) [sic]." For relief, Kellogg seeks, inter alia, a temporary restraining order, injunctive and declaratory relief, restoration of good time, restoration of telephone and visitation privileges, and $1.5 million in compensatory damages.

Because this action was filed after January 1, 2003, it is governed by the new rules for notice pleading, which apply to all "civil actions filed on or after January 1, 2003." See Neb. Ct. R. of Pldg. in Civ. Actions 1 (rev.2003). In response to Kellogg's complaint, appellees filed a motion to dismiss, claiming that the court lacked jurisdiction and that Kellogg's complaint failed to state a claim for relief. See Neb. Ct. R. of Pldg.

690 N.W.2d 578
in Civ. Actions 12(b)(1) and (6) (rev.2003). On April 16, 2003, a hearing was held in district court on appellees' motion to dismiss. In an order filed April 24, the district court determined, inter alia, that Kellogg had stated no claims for which he might be entitled to relief and dismissed Kellogg's action without leave to replead

Kellogg appealed the district court's order to the Court of Appeals. On appeal, Kellogg claimed essentially that the district court erred in dismissing his ADA and § 1983 claims. On October 24, 2003, appellees moved for summary affirmance of the district court's order. On April 15, 2004, without opinion, the Court of Appeals sustained the motion.

Kellogg filed a petition for further review, which this court granted. During oral argument before this court, the parties advised the court that during the pendency of appellate proceedings, Kellogg had been seen by a urologist and had been transferred from the Tecumseh State Correctional Institution to another DCS facility. The court was further advised that Kellogg's good time had been restored, his visitation privileges had been restored, and he had been "accommodated" with regard to his participation in the drug testing program.


In his petition for further review, Kellogg assigns two errors that we restate as one. Kellogg claims the Court of Appeals erred in sustaining appellees' motion for summary affirmance of the district court's order dismissing his complaint.


As discussed above, this action was filed on February 21, 2003, and thus, we apply the new rules for notice pleading. See rule 1. This court has not previously discussed the standard of review for a motion to dismiss filed under rule 12(b). Because the new rules are modeled after the Federal Rules of Civil Procedure, we look to the federal decisions for guidance. See, similarly, Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916 (2003). As do the federal appellate courts, we will and do hereby review a district court's grant of a motion to dismiss de novo, accepting all the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. See Maki v. Allete, Inc., 383 F.3d 740 (8th Cir.2004). See, also, Pogge v. American Fam. Mut. Ins. Co., 13 Neb.App. 63, 688 N.W.2d 634 (2004). We are, however, "`free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations.'" See Farm Credit Services v. American State Bank, 339 F.3d 764, 767 (8th Cir.2003) (quoting Wiles v. Capitol Indem. Corp., 280 F.3d 868 (8th Cir.2002)). Complaints should be liberally construed in the plaintiff's favor and "`should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set...

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