S-21-0930 Bernard Schaeffer (Appellant) v. Scott Frakes, in his official capacity as Director of the Nebraska Department of Correctional Services et al. (Appellees).
Appeal from the District Court for Lancaster County, Judge Darla S. Ideus
Attorneys: Gerald L. Soucie (Attorney for Appellant), James D. Smith (Sr. Asst. Attorney General for Appellee).
Civil: Declaratory Judgment and Motion to Dismiss
Proceedings Below: Appellees filed a Motion to Dismiss Appellant’s Complaint for Declaratory Judgment, which was sustained. Appellant filed a Petition to Bypass the Nebraska Court of Appeals, which was granted, and the Supreme Court ordered that this case be transferred to its docket.
Issues: On appeal, Appellant makes the following assignments of error: 1) The district court erred in dismissing Mr. Schaeffer’s Ground One (violation of liberty interest under due process clause of 14th Amendment) and Two (violation of cruel and unusual punishment under the 8th Amendment) filed pursuant to 42 U.S.C. § 1983 seeking a determination of his ”tentative release date” based upon the theory of “claim preclusion” because of a 2019 district court in which Mr. Schaeffer was seeking a determination of his “parole eligibility date”; 2) The district court erred in dismissing Mr. Schaeffer’s Complaint filed pursuant to 42 U.S.C. § 1983 with prejudice on the alternative basis that he was attacking the “fact” or “duration” of his confinement in violation of Wilkinson v. Dotson, 544 U.S. 74 (2005); 3) The district court erred in dismissing Mr. Schaeffer’s Complaint filed pursuant to Neb. Rev. Stat. § 84-911 on the basis of “sovereign immunity” on the theory that Respondents were engaged in a “interpretation” of a statute; and 4) The district court erred in dismissing Mr. Schaeffer’s Complaint with prejudice without leave to amend in which Mr. Schaeffer would strike entirely any citation or reference to AR 104.08.