Nesbitt ex rel. Himself & All Other Similarly Situated Neb. State Penitentiary Segregated Prisoners v. Frakes

300 Neb. 1

911 N.W.2d 598

Thomas NESBITT, on behalf of himself and all other similarly situated Nebraska State Penitentiary Segregated Prisoners, appellant,

v.Scott FRAKES et al., appellees.

No. S-16-931.

Supreme Court of Nebraska.

Filed May 18, 2018.

Thomas Nesbitt, pro se.

Douglas J. Peterson, Attorney General, and Timothy R. Ertz, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, and Cassel, JJ., and Luther and O'Gorman, District Judges.

Per Curiam.

Thomas Nesbitt brought suit against the Nebraska Department of Correctional Services (DCS), its director, and various other officials and employees of the DCS, alleging that the conditions at the Nebraska State Penitentiary (NSP) violate his rights under Nebraska law and that his claims are representative of all inmates housed in the segregation units at the NSP.

This is an appeal from an order dismissing Nesbitt's amended complaint for failing to state a cause of action. Because Nesbitt no longer resides at the NSP, this matter is moot and the appeal is dismissed.

BACKGROUND

Nesbitt is an inmate with the DCS. At the time he filed his pro se complaint "for class action, declaratory, and injunctive relief," he resided in a segregated unit at the NSP, located in Lincoln, Nebraska. Nesbitt's complaint asserted state law claims based on a range of matters within the correctional facility's setting, including overcrowding, cell assignments, flooding, and inadequate showering conditions.

Nesbitt, age 71, claims he suffers from a debilitating spinal condition which causes him sciatic nerve pain and restless leg syndrome. He claims, according to his medical diagnosis, he is required to sleep from 2 a.m. to 10 a.m. every day in order to prevent paralysis. He asserts prison officials violate his rights when they allow the prison to become overpopulated and, as a result, place another prisoner in his "medically designed one-man segregation single-cell," which disturbs his circadian rhythm.

Nesbitt's complaint named as defendants the appellees, eight officials and employees with the DCS, in both their official and individual capacities, but he served the appellees in their individual capacities only. Nesbitt's praecipe for issuance and service of summons requested service at the DCS and NSP, and not at the Attorney General's office.

The district court dismissed Nesbitt's original complaint under Neb. Ct. R. Pldg. § 6-1112(b)(6), finding that the appellees had been served in only their individual capacities and that the complaint failed to state a claim for relief against any of the appellees personally. The court denied Nesbitt's request for class action status and motion for restraining order. Nesbitt filed an amended verified complaint, in which he included additional claims related to prison conditions. He sought temporary and permanent injunctive relief and declaratory judgment—the same relief requested in his initial complaint. The appellees filed another motion to dismiss, and the court again dismissed the complaint under § 6-1112(b)(6), noting that the new pleading had the same defects as the original and that no further opportunity to amend should be permitted.

Nesbitt filed a motion to alter or amend the court's judgment, in which he stated that he had been transferred to the Omaha Correctional Center located in Omaha, Nebraska. Nesbitt confirmed this fact at the hearing on his motion, which motion the court overruled. Nesbitt timely appealed.

ASSIGNMENTS OF ERROR

Nesbitt assigns that the court erred in (1) denying his verified complaint; (2) failing to properly evaluate his claims under the notice pleading system; and (3) refusing to (a) certify class members, (b) appoint legal counsel, and (c) issue a restraining order and temporary injunction.

STANDARD OF REVIEW

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.¹

ANALYSIS

MOOTNESS

Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.² While it is not a constitutional prerequisite for jurisdiction, the existence of an actual case or controversy is necessary for the exercise of judicial power.³

The appellees assert that Nesbitt's claims seeking injunctive relief and declaratory judgment are moot, because he has been transferred to a different correctional facility. Thus, we must first determine whether Nesbitt's transfer to a different facility has rendered this appeal moot.

An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.⁴ A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive.⁵ Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.⁶ Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction.⁷ As a general rule, a moot case is subject to summary dismissal.⁸

In considering Nesbitt's specific claims, we note that the purpose of an injunction is to restrain actions that have not yet been taken.⁹ On several previous occasions, we have recognized that " 'injunctive relief is preventive, prohibitory, or protective, and equity usually will not issue an injunction when the act complained of has been committed and the injury has been done.' "¹⁰ We have also said:

" 'Since the purpose of an injunction is not to afford a remedy for what is past but to prevent future mischief, not being used for the purpose of punishment or to compel persons to do right but merely to prevent them from doing wrong, rights already lost and wrongs already perpetrated cannot be corrected by injunction.' "¹¹

In Putnam v. Fortenberry ,¹² the plaintiff sought to enjoin the city of Lincoln from selling a publicly owned hospital to a private company. A few days after the plaintiff had brought her action, the city council passed an ordinance approving the sale. Within 3 weeks, the city and the private company had entered into an affiliation agreement that set a closing date. Three weeks later, the court denied the plaintiff's request for temporary and permanent injunctive relief. Before the plaintiff appealed, the city and the private company had closed the sale and the title to the hospital was transferred. We said "[b]ecause the act which [the plaintiff] sought to enjoin is complete, our opinion on the trial court's denial of injunction would be nugatory. We, therefore, conclude that the issue of injunctive relief is moot."¹³

The same analysis applies in this case. If Nesbitt had a personal interest in seeking improved conditions at the NSP, his interest ceased upon his transfer to another facility. Nesbitt is no longer subject to the conditions at the NSP, and the injunctive relief he seeks has been rendered moot.

In addition to seeking an injunction against his housing conditions, Nesbitt sought a declaratory judgment. Thus, we must next determine whether declaratory judgment is also moot. A declaratory judgment action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action.¹⁴ At the time that the declaration is sought, there must be an actual justiciable issue from which the court can declare law as it applies to a given set of facts.¹⁵ A justiciable issue requires a present, substantial controversy between parties having adverse legal interests susceptible to immediate resolution and capable of present judicial enforcement.¹⁶

In Rath v. City of Sutton ,¹⁷ the plaintiff, Marlowe Rath, brought an action for declaratory relief seeking to enjoin the expenditure of public funds pursuant to a contract he claimed was illegal. Rath argued that notwithstanding completion of the project and payment of all funds, relief was still available, because a taxpayer had a right to recover the funds expended under an illegal contract. Rath rightfully contended that a " 'suit that seeks damages for harm caused by past practices is not rendered moot by the cessation of the challenged conduct.' "¹⁸ However, Rath did not seek to recover the funds that may have been illegally expended under the contract, but only sought injunctive and declaratory relief. We held that in order to be entitled to recoup illegally expended funds, Rath was required to specifically request such relief in his petition. We further held that a declaration by this court on the legality of the contract would be advisory, because it would have no effect on the parties in this case, and that therefore, Rath's request for declaratory relief was moot.

In the instant matter, Nesbitt did not seek monetary damages regarding conditions of confinement. As a result, his claim for declaratory judgment would suffer from the same infirmities as a claim for injunctive relief. In this case, a declaratory judgment would not undo what has already been completed, but would be nothing more than advisory, and "declaratory relief cannot be used to obtain a judgment which is merely advisory."¹⁹ Nesbitt's request for declaratory judgment is also moot.

More directly upon the issue of prisoner litigation, in Johnston v. Nebraska Dept. of Corr. Servs. ,²⁰ we considered an inmate's claim concerning placement within a prison facility. Sean Johnston, an inmate at the NSP, was placed on administrative confinement after a misconduct report was filed against him. The director of the DCS affirmed the placement decision, despite the misconduct report being dismissed for lack of evidence. Johnston then sought judicial review of the director's decision, alleging...