Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/09/2019 08:07 AM CDT




                                                      - 743 -
                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                              MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                                            Cite as 303 Neb. 743




                            Toffie M aloley, appellant and cross-appellee,
                               v. Central Nebraska P ublic Power and
                                 Irrigation District et al., appellees
                                        and cross-appellants.
                                                  ___ N.W.2d ___

                                        Filed July 19, 2019.    No. S-18-656.

                 1. Judgments: Appeal and Error. In a bench trial of a law action, a trial
                    court’s factual findings have the effect of a jury verdict and will not be
                    set aside on appeal unless clearly wrong.
                 2. ____: ____. After a bench trial of a law action, an appellate court does
                    not reweigh evidence, but considers the evidence in the light most favor-
                    able to the successful party and resolves evidentiary conflicts in favor of
                    the successful party.
                 3. Judgments. In a bench trial, the trial court’s entry of judgment in favor
                    of a certain party warrants the conclusion that the trial court found in the
                    party’s favor on all issuable facts.
                 4. Judgments: Appeal and Error. When reviewing questions of law, an
                    appellate court resolves the questions independently of the lower court’s
                    conclusions.
                 5. Summary Judgment: Moot Question: Appeal and Error. The denial
                    of a summary judgment motion generally becomes a moot issue on
                    appeal after a final trial on the merits.
                 6. Actions: Civil Rights: Convictions: Proof. A plaintiff seeking relief
                    under 42 U.S.C. § 1983 (2012) based on a criminal conviction must first
                    show favorable termination of his or her underlying conviction if suc-
                    cess in the civil action would necessarily undermine the validity of the
                    previous conviction.

                  Appeal from the District Court for Dawson County: James
               E. Doyle IV, Judge. Affirmed.
                             - 744 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
        MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                      Cite as 303 Neb. 743

   David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
P.C., for appellant.
  Daniel M. Placzek and Jared J. Krejci, of Smith, Johnson,
Baack, Placzek, Allen, Connick & Hansen, for appellees.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
  Miller-Lerman, J.
                      NATURE OF CASE
   The appellant, Toffie Maloley (Maloley), brought this 42
U.S.C. § 1983 (2012) action against the appellees, Central
Nebraska Public Power and Irrigation District, a political
subdivision (Central), its general manager, and the mem-
bers of Central’s board (collectively the appellees). Central
owns real estate in Dawson and Gosper Counties, including
Johnson Lake.
   After harassment protection orders were issued against
Maloley and he moved out of the Johnson Lake area through
an exit plan negotiated by his counsel, he was given a “ban
notice” on August 13, 2013, but repeatedly trespassed there-
after, leading to two convictions for trespass which have not
been overturned or otherwise reversed. In his amended com-
plaint, Maloley generally alleged that he was unconstitution-
ally excluded from the Johnson Lake area such that he could
not reside or travel there or engage in recreation and his
occupation. After trial, the district court filed a 22-page order
and opinion finding in favor of the appellees and dismiss-
ing Maloley’s action. Judgment was entered accordingly. We
determine that Maloley’s convictions for trespassing are fun-
damentally inconsistent with his various civil claims alleged
in his amended complaint. Under the Heck doctrine, Maloley’s
claims are not cognizable under 42 U.S.C. § 1983. See Heck v.
Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383
(1994). Although our reasoning differs from that of the district
court, we affirm.
                              - 745 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
         MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                       Cite as 303 Neb. 743

                     STATEMENT OF FACTS
   Maloley alleged that he resided in a Johnson Lake residence
leased by his mother for the 2 years prior to August 13, 2013,
and had personal property and a business at Johnson Lake.
Maloley alleged that on August 13, Central’s attorney had
Maloley served with a notice prohibiting Maloley from enter-
ing onto Central’s real estate. Maloley alleged that after he
received the notice, he was repeatedly arrested and prosecuted
for trespassing on Central’s real estate. It is undisputed that he
was convicted of criminal trespass in two separate incidents
and that the convictions have not been reversed, declared
invalid, or expunged in any way.
   Maloley alleged that when Central’s attorney issued the
notice, the appellees violated his procedural due process rights
and various property and civil rights. All of Maloley’s claims
were brought under 42 U.S.C. § 1983. The appellees admit-
ted the obvious facts but denied others. Throughout these
proceedings, the appellees asserted, inter alia, that under the
Heck doctrine, Maloley’s claims were not cognizable under
§ 1983, because Maloley was a convicted trespasser and the
court could not find in Maloley’s favor without invalidating
his convictions.
   Cross-motions for summary judgment were denied. A bench
trial on liability took place on August 8 and 9, 2017. The dis-
trict court denied the appellees’ midtrial motions. After trial,
in a 22-page opinion, the district court found in favor of the
appellees on all claims, and the entirety of Maloley’s amended
complaint was dismissed with prejudice and judgment entered
accordingly. Maloley filed a motion for new trial which gen-
erally asserted that he was denied a fair trial. The motion
was denied.
   In its order following trial, the district court found that
Maloley’s mother, Lorraine Maloley, signed a residential lease
agreement with Central allowing her to lease a lot at Johnson
Lake, referred to as “Bass Bay, Lot 25.” In 2011, Maloley
began living in Lorraine’s residence at Johnson Lake.
                            - 746 -
          Nebraska Supreme Court A dvance Sheets
                  303 Nebraska R eports
        MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                      Cite as 303 Neb. 743

   In July 2012, Lorraine’s neighbor obtained a harassment
protection order against Maloley. In August, Central’s attor-
ney sent Lorraine a letter advising that Maloley was inter-
fering with the neighboring leaseholders’ peaceful enjoy-
ment. The letter gave Lorraine 60 days to remedy the breach
by Maloley’s leaving Central’s real estate. On October 2,
Maloley’s attorney responded to the August letter, stating
that Maloley agreed to leave Bass Bay, Lot 25, on or before
October 5. On October 19, Central’s attorney sent Maloley’s
attorney another letter stating that Maloley had vacated the
premises, but advising that if Maloley returned, Central would
consider his presence a resumption of the breach. These dis-
cussions between counsel caused Maloley to leave Central’s
real estate with the knowledge that he was not permitted to
return. The district court found that Maloley left Central’s
property knowing he was not to return or “he would be treated
as a trespasser.”
   In February 2013, Maloley returned to reside at Bass Bay,
Lot 25. In July, the complaining neighbor’s husband sent
Central a letter explaining that Maloley was at Bass Bay,
Lot 25, on a daily basis and disturbing the neighborhood. The
district court found that Maloley’s disturbing conduct resulted
in users of Central’s real estate making complaints to Central
and that Maloley interfered with the peaceful enjoyment of
Central’s facilities.
   Consistent with the October 2012 communication between
counsel, on August 12, 2013, Central prepared a notice advis-
ing Maloley he was not to enter any of Central’s real estate
in Dawson County or Gosper County or else he would be
referred to law enforcement authorities. This “ban notice” was
personally served on Maloley.
   Between August 28 and December 6, 2013, Maloley
was charged with four counts of second degree trespass in
three cases in the county court for Dawson County. All of
the trespass charges occurred on Central’s real estate. One
of the cases was dismissed by the State, and Maloley was
                              - 747 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
         MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                       Cite as 303 Neb. 743

convicted of criminally trespassing on Central’s real estate
in two cases.
   On November 24, 2014, Central’s attorney sent Maloley’s
attorney a letter advising that Maloley was allowed to enter
Johnson Lake to remove his personal property from Bass
Bay, Lot 25, provided Maloley had Lorraine’s permission and
Maloley was accompanied by law enforcement.
   The district court found that Maloley was a mere occupier at
Bass Bay, Lot 25, and had no interest in the leasehold at that
location. The district court found that Maloley’s interests as an
occupier of Bass Bay, Lot 25, and user of Central’s facilities
terminated when Maloley left Central’s real estate and acceded
to the terms discussed and agreed to between counsel in the
2012 communication process. The district court found that
the 2012 communication process gave Maloley notice of the
requirement that he leave and the reasons therefor. The dis-
trict court found that the 2012 communication process gave
Maloley the opportunity to challenge Central’s position, but
Maloley waived his rights to remain on Central’s real estate
after he left in the fall of 2012. Once Maloley returned, the
district court recognized that Maloley was a trespasser.
   The district court reasoned that because Maloley waived his
right to remain on Central’s real estate after he left, Maloley
had no property or liberty interest in residing at Bass Bay,
Lot 25. Further, because Maloley was a trespasser, he had no
liberty interest or other right to associate with those at Johnson
Lake or engage in an occupation at Johnson Lake. The dis-
trict court found that the 2012 communication process gave
Maloley what process he was due when he was temporarily
deprived of his personal property.
   The district court found that before the 2012 communica-
tion process, Maloley had a right to use Central’s real estate
which was generally made available to the public. However,
the district court found that the 2012 communication process
was fundamentally fair and afforded Maloley the process he
was due under the circumstances.
                              - 748 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
         MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                       Cite as 303 Neb. 743

   Applying the Mathews v. Eldridge considerations to deter-
mine what process was due, the district court found that
Maloley’s interest in his personal property was not substan-
tially impaired, because Maloley had ample time to remove
his personal property during the August to October 2012 com-
munication process. See Mathews v. Eldridge, 424 U.S. 319,
96 S. Ct. 893, 47 L. Ed 18 (1976). Maloley knowingly left his
personal property behind when he left Johnson Lake. Further,
it found that Maloley’s evidence regarding the extent and
nature of Maloley’s personal property was not convincing.
With regard to Maloley’s interest in providing lawn care and
handyman services, the district court found that Maloley’s evi-
dence on this issue had little probative value. The district court
found that Maloley’s interest in using Central’s real estate as
a member of the public was not substantial, because Maloley
forfeited his interest by disturbing the peace.
   Continuing its Mathews analysis, the district court found
that Central’s interest in its duty to the public weighed in favor
of the adequacy of the 2012 communication process. Central
had a duty to protect the quiet, peaceful, and safe use of its real
estate by its tenants and the public. The district court noted
that Maloley’s conduct interfered with the peace and risked
safety due to possible escalations of confrontations and alterca-
tions. The 2012 communication process minimized the risk of
the public’s disturbance and promoted safety.
   Finally, the district court concluded its Mathews analysis by
finding that the 2012 communication process carried a “very
low” risk of error compared to other procedures. The court
found that Central had received bona fide and verified com-
plaints about Maloley’s conduct. Due to the existence of the
neighbor’s harassment protection order, Central knew of a pre-
vious judicial determination that Maloley was interfering with
the users of Johnson Lake.
   In summary, the district court determined that the 2012
communication process was fundamentally fair and afforded
Maloley the process he was due.
                              - 749 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
         MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                       Cite as 303 Neb. 743

   The district court determined that Maloley had no substan-
tive due process rights to live precisely where he chose, to
engage in handyman services at Johnson Lake, to intrastate
travel through Central’s real estate, or to use Central’s recre-
ational facilities. The district court determined that Maloley
had no First Amendment right to associate with customers at
Johnson Lake. The district court found that Central’s actions
were rationally related to legitimate government interests in
protecting the peace and quiet of Johnson Lake. Finally, the
district court determined that Central did not violate Maloley’s
equal protection rights, because there was a rational basis for
Central to classify Maloley as it did.
   The district court found in favor of the appellees on all
claims and dismissed Maloley’s complaint with prejudice.
Posttrial motions were denied. Maloley appeals.

                  ASSIGNMENTS OF ERROR
   Maloley claims, summarized and restated, that the district
court erred when it denied his motion for summary judgment,
determined after a trial that Maloley was a trespasser and that
he received due process of law during the 2012 communication
process, and denied his motion for new trial.
   In their cross-appeal, the appellees claim that although they
agree with the judgment as entered, because Maloley was
convicted for trespass and these convictions have not been
reversed, declared invalid, or expunged, his claims under 42
U.S.C. § 1983 arising as a consequence of these convic-
tions are not cognizable under the rule articulated in Heck v.
Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383
(1994), and the district court erred when it failed to dismiss the
amended complaint on this basis.

                 STANDARDS OF REVIEW
   [1,2] In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside on appeal unless clearly wrong. Cullinane v. Beverly
                              - 750 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
         MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                       Cite as 303 Neb. 743

Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774 (2018). After a
bench trial of a law action, an appellate court does not reweigh
evidence, but considers the evidence in the light most favor-
able to the successful party and resolves evidentiary conflicts
in favor of the successful party. See id.
   [3] In a bench trial, the trial court’s entry of judgment in
favor of a certain party warrants the conclusion that the trial
court found in the party’s favor on all issuable facts. Blue
Creek Farm v. Aurora Co-op Elev. Co., 259 Neb. 1032, 614
N.W.2d 310 (2000).
   [4] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions. Becher v. Becher, 299 Neb. 206, 908 N.W.2d
12 (2018).

                            ANALYSIS
Appeal.
   [5] Maloley claims that the district court erred when it
denied his motion for summary judgment. However, “denial of
a summary judgment motion generally becomes a moot issue
on appeal after a final trial on the merits.” First Express Servs.
Group v. Easter, 286 Neb. 912, 920, 840 N.W.2d 465, 471
(2013). Under the circumstances of this case, this assignment is
without merit. Maloley also claims that the district court erred
when it ruled against him after trial and thereafter denied his
motion for new trial. As explained below, because we agree
with the appellees’ contention in their cross-appeal that the
district court did not err when it dismissed Maloley’s amended
complaint and entered judgment in favor of the appellees, we
reject these assignments of error.

Cross-Appeal.
   In their cross-appeal, the appellees claim that the district
court did not err when it dismissed Maloley’s amended com-
plaint after trial, but they contend that their assertion that
Maloley’s 42 U.S.C. § 1983 action was not cognizable under
                              - 751 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
         MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                       Cite as 303 Neb. 743

the Heck doctrine provides the better rationale. We agree with
the appellees, and the resolution of this contention in favor of
the appellees is dispositive of the appeal.
   Maloley’s 42 U.S.C. § 1983 claims tried below arise from
the assertion that he was denied due process of law when
he was excluded from Central’s real estate and convicted of
trespassing. He claims the circumstances of his eviction and
subsequent convictions for criminal trespass were unlawful and
are all folded into and serve as the basis for his § 1983 claims.
Maloley did not prove at trial that the convictions for trespass-
ing have been reversed on direct appeal, expunged by executive
order, or otherwise declared invalid. Thus, as explained below,
under the Heck doctrine, the claims in Maloley’s amended
complaint are not cognizable under § 1983 and therefore the
dismissal of his amended complaint was not error. See Heck
v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d
383 (1994).
   In Heck, the U.S. Supreme Court held:
      [I]n order to recover damages for allegedly unconsti-
      tutional conviction or imprisonment, or for other harm
      caused by actions whose unlawfulness would render a
      conviction or sentence invalid, a § 1983 plaintiff must
      prove that the conviction or sentence has been reversed
      on direct appeal, expunged by executive order, declared
      invalid by a state tribunal authorized to make such deter-
      mination, or called into question by a federal court’s issu-
      ance of a writ of habeas corpus . . . .
512 U.S. at 486-87. The Court in Heck explained that § 1983
does not allow a convicted defendant to mount a collateral
attack on his or her conviction under the guise of a civil suit;
generally, tort lawsuits “are not appropriate vehicles for chal-
lenging the validity of outstanding criminal judgments.” 512
U.S. at 486.
   Although the Heck principle began in a habeas corpus
setting, subsequent cases confirmed that the Heck doctrine
applies regardless of the type of relief sought if success in a
                             - 752 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
        MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                      Cite as 303 Neb. 743

42 U.S.C. § 1983 action would necessarily demonstrate the
invalidity of a conviction or sentence. See Wilkinson v. Dotson,
544 U.S. 74, 125 S. Ct. 1242, 161 L. Ed. 2d 253 (2005). We
have applied Heck to a prisoner’s § 1983 case. See Cole v.
Loock, 259 Neb. 292, 609 N.W.2d 354 (2000).
   Courts have extended the Heck doctrine to other contexts,
and as relevant here, the Heck doctrine has been applied to
claims in which the plaintiff had been convicted of criminal
trespass and sought relief for circumstances surrounding those
convictions. See, generally, Harris v. Wal-Mart Stores, Inc.,
48 F. Supp. 3d 1025 (W.D. Tenn. 2014); Salvagio v. Doe,
No. Civ. 13-5182, 2015 WL 460907 (E.D. La. Feb. 3, 2015)
(unpublished opinion); Rector v. Baca, No. CV 13-3116 VBF
(SS), 2014 WL 4244345 (C.D. Cal. Aug. 25, 2014) (unpub-
lished opinion); Snyder v. Decker, No. 2:06cv1528, 2007 WL
2616993 (W.D. Pa. Sept. 6, 2007) (unpublished opinion).
   To determine whether a 42 U.S.C. § 1983 claim is improper
under the Heck doctrine, a district court must analyze the rela-
tionship between the plaintiff’s § 1983 claim and the charge on
which he was convicted. See Hardrick v. City of Bolingbrook,
522 F.3d 758 (7th Cir. 2008). The Ninth Circuit has explained
that the critical element in this analysis is “whether the plain-
tiff’s action, if successful, will ‘demonstrate the invalidity of
any outstanding criminal judgment.’” Beets v. County of Los
Angeles, 669 F.3d 1038, 1043 (9th Cir. 2012) (quoting Heck v.
Humphrey, supra). Put another way, “‘if a criminal conviction
arising out of the same facts stands and is fundamentally incon-
sistent with the unlawful behavior for which section 1983 dam-
ages are sought, the 1983 action must be dismissed.’” Smith
v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (quoting
Heck v. Humphrey, supra). Claims which would not necessar-
ily imply the invalidity of the conviction should be allowed to
proceed. Heck v. Humphrey, supra.
   In this case, the appellees urge that Maloley had no prop-
erty rights, so Maloley could not be deprived of property
without due process. They further urge that Maloley was not
                             - 753 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
        MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                      Cite as 303 Neb. 743

deprived of his constitutional rights, but if his rights were
circumscribed, that is a permissible result of the fact that he
has been found by a court to be a criminal trespasser at the
Johnson Lake area. The appellees assert that the correctness
of a limitation on Maloley’s rights, if any, would not be cog-
nizable in a 42 U.S.C. § 1983 action while the convictions for
trespassing stand. We agree.
   The record shows that Lorraine received notice pertaining to
Maloley’s conduct and that Maloley, represented by counsel,
negotiated an exit plan for Maloley from Lorraine’s property.
Lorraine received a notice banning Maloley from the property
and threatening eviction if Maloley returned. The threat of
eviction was based, inter alia, on a term in Lorraine’s lease
protecting the neighboring leaseholders’ peaceful enjoyment of
their property. Subsequently, Maloley was arrested four times
for trespassing on Central’s real estate. From those arrests,
Maloley was ultimately convicted of two counts of second
degree trespass, because he could not show he had a right to
remain on the property.
   There is a direct relationship between Maloley’s trespass-
ing and his 42 U.S.C. § 1983 claims. Each claim in Maloley’s
amended complaint is rooted in the propriety of his trespass
convictions. Had Maloley been successful on his § 1983 claims,
the validity of his convictions for trespass would be called into
question. Maloley concedes that his convictions stand, but
argues that Heck does not bar his constitutional claims, because
they attack the process of issuing the ban notice against him,
and not the resulting convictions themselves. While there may
be a distinction, the forum challenging the ban notice is in the
criminal cases, not this civil matter. Maloley cannot claim he
had a right to remain on the property in the civil case after
having been convicted for having no such right in his criminal
cases. His criminal convictions are “‘fundamentally inconsist­
ent with the unlawful behavior’” alleged against the appellees
for which he claims damages. See Smith v. City of Hemet, 394
F.3d at 695. Accordingly, Maloley’s civil rights action under
                             - 754 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
        MALOLEY v. CENTRAL NEB. PUB. POWER & IRR. DIST.
                      Cite as 303 Neb. 743

§ 1983 was not cognizable and the district court did not err
when it dismissed his amended complaint and entered judg-
ment for the appellees.
                         CONCLUSION
    [6] Under the rule articulated in Heck v. Humphrey, 512
U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), a plain-
tiff seeking relief under 42 U.S.C. § 1983 based on a criminal
conviction must first show favorable termination of his or
her conviction if success in the civil action would necessar-
ily undermine the validity of the previous conviction. The
gravamen of Maloley’s constitutional claims in his amended
complaint directly call into question his trespass convictions.
Thus, Maloley’s § 1983 claims were not cognizable under the
Heck doctrine. Although our reasoning differs from that of
the district court, we affirm the judgment of the district court
which found in favor of the appellees and which dismissed
Maloley’s amended complaint.
                                                    A ffirmed.
