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www.nebraska.gov/apps-courts-epub/
05/03/2016 08:11 AM CDT




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                               Decisions of the Nebraska Court of A ppeals
                                     24 Nebraska A ppellate R eports
                                    PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                                               Cite as 24 Neb. App. 1




                                        Christopher M. Payne, appellant,
                                          v. Nebraska Department of
                                             Correctional Services
                                                et al., appellees.
                                                    ___ N.W.2d ___

                                           Filed May 3, 2016.   No. A-15-016.

                1.	 Right to Counsel. In civil cases, there is no constitutional or statutory
                    right to appointed counsel.
                2.	 Constitutional Law: Courts: States. The question of when federal law
                    should displace state law in state court proceedings under the Supremacy
                    Clause is governed by the reverse-Erie doctrine set out in Erie R. Co. v.
                    Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
                3.	 Federal Acts: Courts: States. State courts hearing federal law claims
                    may generally utilize their own procedural rules so long as they do not
                    infringe upon the substantive federal law at issue.
                4.	 ____: ____: ____. When a state court hears a claim based on federal
                    law, the state’s procedural rules may be preempted by federal law if they
                    fail to protect substantive federal rights.
                5.	 Constitutional Law: Federal Acts: Courts: States. The Supremacy
                    Clause imposes on state courts a constitutional duty to proceed in such
                    manner that all the substantial rights of the parties under controlling
                    federal law are protected.
                6.	 Federal Acts: Courts: States. Where a claim heard in state court is
                    based upon a federal statute and that statute does not dictate procedure,
                    the state court conducts a preemption analysis to determine whether a
                    particular state procedure is preempted by federal law. This preemp-
                    tion analysis considers the federal interest of uniformity in adjudicat-
                    ing federal rights and the countervailing state interest in administering
                    its courts.
                7.	 Public Officers and Employees: Immunity: Liability. Qualified
                    immunity protects government officials from liability for civil dam-
                    ages insofar as their conduct does not violate clearly established
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            Decisions of the Nebraska Court of A ppeals
                  24 Nebraska A ppellate R eports
                PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                           Cite as 24 Neb. App. 1

      statutory or constitutional rights of which a reasonable person would
      have known.
 8.	 ____: ____: ____. Qualified immunity consists of two inquiries: (1)
      whether the facts that a plaintiff has alleged make out a violation of a
      constitutional right and (2) whether the right at issue was clearly estab-
      lished at the time of the defendant’s alleged misconduct.
  9.	 ____: ____: ____. The protection of qualified immunity applies regard-
      less of whether the government official’s error is a mistake of law, a
      mistake of fact, or a mistake based on mixed questions of law and fact.
10.	____: ____: ____. Qualified immunity gives government officials
      breathing room to make reasonable but mistaken judgments and pro-
      tects all but the plainly incompetent or those who knowingly violate
      the law.
11.	 ____: ____: ____. The dispositive inquiry for qualified immunity is
      whether it would be clear to a reasonable officer in the agent’s position
      that his conduct was unlawful in the situation he confronted.
12.	 Rules of Evidence: Other Acts. Evidence of other crimes, wrongs,
      or acts is not admissible to prove the character of a person in order to
      show that he or she acted in conformity therewith. It may, however, be
      admissible for other purposes, such as proof of motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of mistake
      or accident.
13.	 Trial: Evidence: Appeal and Error. A trial court has the discretion to
      determine the relevancy and admissibility of evidence, and such deter-
      minations will not be disturbed on appeal unless they constitute an abuse
      of that discretion.
14.	 Judgments: Words and Phrases. A judicial abuse of discretion requires
      that the reasons or rulings of a trial judge be clearly untenable, unfairly
      depriving a litigant of a substantial right and a just result.
15.	 Appeal and Error. An appellate court is not obligated to engage in an
      analysis that is not necessary to adjudicate the case and controversy
      before it.

  Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Affirmed.
   Christopher M. Payne, pro se.
   Douglas J. Peterson, Attorney General, and Bijan Koohmaraie
for appellee.
   Inbody, Pirtle, and R iedmann, Judges.
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
            PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 1

  R iedmann, Judge.
                         INTRODUCTION
   Christopher M. Payne is an inmate housed at the Tecumseh
State Correctional Institution (TSCI) in Tecumseh, Nebraska.
He filed suit against the Nebraska Department of Correctional
Services (the Department) and several of its employees in
their individual and official capacities after being prevented
from corresponding with a person housed in a secure treatment
facility. After pretrial motions and orders disposed of Payne’s
case against the Department and the State employees in their
official capacities, he tried his remaining claims against the
State employees in their individual capacities under 42 U.S.C.
§ 1983 (2012) before a jury. Following Payne’s case in chief,
the district court for Lancaster County, Nebraska, sustained the
defendants’ motion for a directed verdict and dismissed the
suit. Payne appeals from this order.
   After review of the record and the parties’ factual and legal
arguments, we affirm the judgment of the district court.
                        BACKGROUND
   The TSCI mailroom procedures manual prohibits TSCI’s
inmates from receiving mail from inmates housed at correc-
tional institutions. On August 3, 2011, Payne received a notice
of returned mail stating that a letter mailed from Rodger Robb
in Moose Lake, Minnesota, had been returned to the sender. A
copy of the envelope was attached to the returned mail notice,
showing that the letter had been stamped “Mailed From A
Secure Treatment Facility.” The returned mail notice stated
that the reason for the return was that “[t]he mail [was] from
another correctional facility and the writer is not approved
to correspond.”
   Catherine Peters, a mailroom employee at TSCI, testi-
fied that she received the letter and believed that it was sent
from a correctional institution because of the stamp labeling
it from a “Secure Treatment Facility.” She then followed
the procedure for dealing with mail that is sent from a cor-
rectional institution; that is, she checked to see if Payne’s
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          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

file contained authorization to correspond with the sender,
and when it did not, she returned the letter and sent a notice
to Payne.
   After receiving the notice of returned mail, Payne submit-
ted an “Inmate Interview Request” form with a message for
Peters. The message reads: “Several times now Warden Britten
has told you people that I am authorized to receive letters from
. . . Robb, because he is not in a correctional facility nor an
inmate, yet you must be dense because you again rejected his
letter. If you can’t follow instructions get a new job!” Fred
Britten, the warden, replied directly to this message, stating,
“Research indicates that . . . Robb’s return address is that
of a sex offender program. Additionally, see attached enve-
lope which states that it was mailed from a ‘secure treatment
facility.’ You do not have authorization to correspond with
this individual.”
   An administrative assistant to the warden testified that she
performed the research on the Moose Lake facility and drafted
the warden’s response to the initial inmate interview request.
She had no specific recollection of what research she con-
ducted, although she was certain that she had researched the
facility and stated she may have performed an Internet search.
The warden had no specific recollection of hearing her describe
her research or doing any research of his own.
   On August 12, 2011, Payne submitted an “Informal Grievance
Resolution Form” stating that Robb is not an inmate in a cor-
rectional facility, but, rather, a patient in a treatment facility,
and that correspondence should be allowed. A prison official
responded in September, stating, “You do not have authoriza-
tion to correspond with this individual.”
   Payne then submitted “Step One” (Step 1) grievance forms
on September 20 and 25, 2011, stating that Robb was not an
“inmate” nor in a “correctional institution,” but that he is a
patient in a mental health facility. Assistant warden Michelle
Hillman responded to one of these Step 1 grievance forms,
and the warden responded to the other. Both concurred with
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          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

the informal grievance response, and neither allowed Payne to
correspond with Robb.
   The assistant warden testified that at the time she completed
the grievance response, she believed that the Moose Lake
facility was actually a correctional facility, because the word
“secure” was used on the envelope to describe it. She testified
that a prison file would typically accompany grievances and
contain additional information on which she would have based
her response. The warden also testified that when the issue was
brought to him, he believed that the term “secure treatment
facility” referred to a prison. Both the warden and the assistant
warden stated that they had no reason to believe that the infor-
mation provided to them by TSCI staff about the nature of the
Moose Lake facility was incorrect.
   In October 2011, Payne submitted a “Step Two” (Step 2)
grievance. A Step 2 grievance is a central office appeal of
the result of a Step 1 grievance. Step 2 grievances are for-
warded to the general counsel for the prison in the central
office, where staff attorneys independently prepare responses.
Payne’s Step 2 grievance states that Robb is a patient in a
Minnesota mental health facility and argues that civilly com-
mitted persons in secure treatment facilities are not inmates
or prisoners. The central office response to the Step 2 griev-
ance states:
         You want to receive mail from a friend in Minnesota.
      You claim he is a patient at the mental health facility in
      Minnesota. The TSCI staff was informed he is an inmate
      in a correctional facility. If this is inaccurate, you should
      provide information to your unit staff showing the nature
      of the facility.
   After receiving the response to his Step 2 grievance, Payne
submitted another inmate interview request in October 2011
to the warden stating that Robb is in a mental health facility.
Payne attached a copy of the warden’s response stating that
research had indicated that Robb was in a sex offender pro-
gram in a secure treatment facility as “proof” that Robb was
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

not an inmate. The warden responded by stating that the enve-
lope was mailed from a “‘secure treatment facility.’”
   Testimony indicates that the warden had previously acknowl-
edged that Payne could correspond with mental health patients
in the Lincoln Regional Center in Nebraska who were civilly
committed and not inmates. The warden stated that although
he had visited the Lincoln Regional Center, he had no personal
knowledge of the Moose Lake facility or its nature.
   Payne filed this suit in April 2012 under 42 U.S.C. § 1983
seeking damages for violations of his First Amendment rights
against the State employees in their individual capacities, and
additionally seeking equitable relief against them in their offi-
cial capacities and against the Department.
   In January 2013, the Department granted Payne permission
to correspond with Robb. In light of this decision, the district
court granted summary judgment to the defendants on Payne’s
claims for equitable relief. The district court denied the remain-
ing defendants’ motion for summary judgment as to Payne’s
First Amendment claims against the employees in their indi-
vidual capacities.
   Payne presented his case in chief to a jury. At the close of
Payne’s case, the defendants moved for a directed verdict,
which the district court granted, reasoning that they were
entitled to qualified immunity and that Payne had failed to
establish damages. Payne appeals from this determination.
                ASSIGNMENTS OF ERROR
   Payne assigns that the district court erred in (1) denying
Payne’s request for appointment of counsel, (2) finding that
the defendants are entitled to qualified immunity, (3) sus-
taining defendants’ objection to evidence of prior bad acts,
and (4) finding that Payne failed to prove a prima facie case
for damages.
                  STANDARD OF REVIEW
   On appeal from an order of a trial court dismissing an action
at the close of plaintiff’s evidence, this court must determine
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               24 Nebraska A ppellate R eports
             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

whether the cause of action was proved and must accept plain-
tiff’s evidence as true, together with reasonable conclusions
deducible from that evidence. Russell v. Norton, 229 Neb. 379,
427 N.W.2d 762 (1988).
   A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will
not be disturbed on appeal unless they constitute an abuse of
that discretion. Sturzenegger v. Father Flanagan’s Boys’ Home,
276 Neb. 327, 754 N.W.2d 406 (2008). In particular, whether
evidence is admissible for any proper purpose under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014), rests
within the discretion of the trial court. Sturzenegger v. Father
Flanagan’s Boys’ Home, supra.
   When reviewing questions of law, an appellate court has an
obligation to resolve the questions independently of the conclu-
sion reached by the trial court. Pettit v. Nebraska Dept. of Corr.
Servs., 291 Neb. 513, 867 N.W.2d 553 (2015).
                           ANALYSIS
Appointment of Counsel.
   [1] Payne first assigns that the district court erred in deny-
ing his request for appointment of counsel. At issue is whether
state or federal law controls appointment of counsel in this
action. In civil cases, there is no constitutional or statutory
right to appointed counsel. Ward v. Smith, 721 F.3d 940 (8th
Cir. 2013). However, 28 U.S.C. § 1915 (2012), the statute
governing federal judicial procedure for proceedings in forma
pauperis, allows a federal district court discretion to appoint
counsel to any person unable to afford an attorney. Although
§ 1915 leaves appointment of counsel to the discretion of the
trial court, a motion for appointment of counsel under § 1915
requires the court to consider factors including the complexity
of the case and the abilities of the litigant requesting counsel.
Childress v. Walker, 787 F.3d 433 (7th Cir. 2015). Nebraska
law, by contrast, allows for appointment of counsel only when
a person’s physical liberty may be in jeopardy. Poll v. Poll,
256 Neb. 46, 588 N.W.2d 583 (1999), disapproved on other
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
            PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 1

grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d
898 (2002).
   [2] The question of when federal law should displace state
law in state court proceedings under the Supremacy Clause is
governed by the “reverse-Erie doctrine.” Kevin M. Clermont,
Reverse-Erie, 82 Notre Dame L. Rev. 1 (2006). The reverse-
Erie doctrine refers to the case Erie R. Co. v. Tompkins, 304
U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), which dealt
with the question of when federal courts should apply state
court law. The reverse-Erie doctrine, then, deals with when and
how broadly state courts hearing federal claims should apply
federal law.
   [3-5] State courts hearing federal law claims may gener-
ally utilize their own procedural rules so long as they do not
infringe upon the substantive federal law at issue. See Johnson
v. Fankell, 520 U.S. 911, 919, 117 S. Ct. 1800, 138 L. Ed. 2d
108 (1997) (general rule “‘“bottomed deeply in belief in the
importance of state control of state judicial procedure, is that
federal law takes the state courts as it finds them”’”). See,
also, Chapman v. Union Pacific Railroad, 237 Neb. 617, 622-
23, 467 N.W.2d 388, 393 (1991) (“[i]n disposing of a claim
controlled by the Federal Employees’ Liability Act, a state
court may use procedural rules applicable to civil actions in
the state court unless otherwise directed by the act, but sub-
stantive issues . . . are determined by the provisions of the
act and interpretative decisions of federal courts”). However,
procedural rules may be preempted by federal law if they fail
to protect substantive federal rights. See Felder v. Casey, 487
U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988). The
Supremacy Clause imposes on state courts a constitutional
duty to proceed in such manner that all the substantial rights of
the parties under controlling federal law are protected. Felder
v. Casey, supra.
   [6] Where the federal statute at issue does not dictate pro-
cedure, courts conduct a preemption analysis to determine
whether a particular state procedure is preempted by federal
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
            PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 1

law. This preemption analysis considers the federal interest of
uniformity in adjudicating federal rights and the countervailing
state interest in administering its courts. Johnson v. Fankell,
supra; Clermont, supra.
   For example, in Felder v. Casey, supra, a plaintiff filed
a civil rights suit against a police officer under 42 U.S.C.
§ 1983 in Wisconsin state courts. The Wisconsin Supreme
Court ordered the suit to be dismissed because the plaintiff
had not complied with a Wisconsin notice-of-claim statute that
requires notice to public officials of an intent to file suit 120
days prior to the suit being filed. Felder v. Casey, supra. The
U.S. Supreme Court found that the Wisconsin notice-of-claim
statute was preempted by federal law in § 1983 claims brought
in state court because the notice-of-claim statute impermissi-
bly burdened the plaintiff’s substantive federal rights protected
by § 1983 and would also cause many cases to have different
outcomes depending upon whether the case was filed in fed-
eral or state court. Felder v. Casey, supra.
   In contrast, in Johnson v. Fankell, 520 U.S. 911, 717 S.
Ct. 1800, 138 L. Ed. 2d 108 (1997), the U.S. Supreme Court
upheld a state court’s use of its rule prohibiting interlocu-
tory appeals from a denial of qualified immunity in a case
brought under 42 U.S.C. § 1983. In Johnson v. Fankell, supra,
a former employee of an Idaho state liquor store filed suit
in state court arguing that her federal civil rights were vio-
lated when her employment was terminated. Id. The Idaho
Liquor Dispensary officials who were named defendants filed
a motion for dismissal on the grounds of qualified immunity,
which the trial court denied. Id. The officials then filed an
interlocutory appeal—an appeal of the trial court’s quali-
fied immunity denial before the case went to trial. Although
federal rules of civil procedure would have allowed the inter-
locutory appeal, Idaho court rules prohibited this appeal. Id.
In upholding the state court’s use of its own interlocutory
appeal rule, the U.S. Supreme Court noted that unlike the
notice-of-claim statute at issue in Felder v. Casey, supra,
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         Decisions of the Nebraska Court of A ppeals
               24 Nebraska A ppellate R eports
             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

the difference between the state and federal rules on inter-
locutory appeals would not result in differing outcomes of
the final disposition of the case. Johnson v. Fankell, supra. In
Felder v. Casey, supra, a plaintiff who filed in state court and
who had not complied with the notice-of-claim statute would
have his case dismissed, while the same plaintiff in federal
court would not. In contrast, in Johnson v. Fankell, supra, a
defendant whose meritorious qualified immunity claim was
initially denied by the trial court would ultimately be entitled
to the same relief on appeal under either the federal or Idaho
rule; only the timing of the appeal would change. The U.S.
Supreme Court additionally noted that the federal right to an
interlocutory appeal does not come from § 1983 itself, but is
instead embedded in a separate rule of federal civil procedure
that “simply does not apply in a nonfederal forum.” Johnson v.
Fankell, 520 U.S. at 921. The U.S. Supreme Court also stated
that it has a “normal presumption against pre-emption” that
was “buttressed by the fact that [the decision at issue] rested
squarely on a neutral state Rule regarding the administration
of the state courts.” Id., 520 U.S. at 918. It additionally rec-
ognized the strong interest of states in operating their own
courts. Johnson v. Fankell, supra.
   Given these contours of the analysis, we conclude that the
Nebraska rule on appointment of counsel is not preempted
by the federal procedural rule in § 1915. Like the interlocu-
tory appeal decision at issue in Johnson v. Fankell, the district
court’s denial of appointed counsel “rests squarely on a neutral
state Rule regarding the administration of the state courts.”
520 U.S. at 918. The State has strong interests in this area
of administering the courts, particularly given that appointed
counsel results in significant costs to the state court system.
Additionally, the Nebraska rule on appointment of counsel does
not significantly burden a plaintiff’s substantive federal rights
under § 1983. Even under the federal rule, there is no statu-
tory or constitutional right to appointed counsel in a civil case.
Ward v. Smith, 721 F.3d 940 (8th Cir. 2013). Appointment of
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          Decisions of the Nebraska Court of A ppeals
                24 Nebraska A ppellate R eports
             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

counsel is purely discretionary even in the federal system. See
id. Additionally, like the rule at issue in Johnson v. Fankell, the
federal rule on appointment of counsel comes not from § 1983
itself but instead from a federal procedural statute that “does
not apply in a nonfederal forum.” See 520 U.S. at 921.
    Finally, Nebraska’s rule on appointment of counsel does not
implicate the concerns with uniformity of outcome that were
present in Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101
L. Ed. 2d 123 (1988). Although appointment of counsel would
certainly assist any pro se litigant, applying the federal rule
would not guarantee that counsel would be appointed to the
litigant in federal court, much less that the result would differ
between federal and state court.
    We further note that other states to consider this issue have
also determined that their rules on appointment of counsel are
applicable in § 1983 actions brought in state court. For exam-
ple, the Louisiana Court of Appeal, when considering the same
question, determined:
      Our exhaustive search of jurisprudence nationwide, how-
      ever, reveals at least three states, Georgia, New Mexico,
      and Pennsylvania, have found the statute [(§ 1915’s pro-
      vision on appointment of counsel)] is not applicable to
      state court actions.
         We agree with those courts that this statute is proce-
      dural, not substantive, in nature and thus is not applicable
      to state courts.
Lay v. McElven, 691 So. 2d 311, 313 (La. App. 1997).
    Similarly, the Court of Appeals of New Mexico, when
addressing the question, determined that the application of
state law on the appointment of counsel was not an error, par-
ticularly given that appointment of counsel is a privilege and
not a right in civil actions. Archuleta v. Goldman, 107 N.M.
547, 761 P.2d 425 (N.M. App. 1987).
    For these reasons, we hold that the district court did not err
in applying the Nebraska rule on appointment of counsel and in
denying court-appointed counsel.
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             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
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Qualified Immunity.
   [7-10] Qualified immunity protects government officials
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known. Pearson
v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d
565 (2009). Qualified immunity consists of two inquiries:
(1) whether the facts that a plaintiff has alleged make out a
violation of a constitutional right and (2) whether the right
at issue was clearly established at the time of the defendant’s
alleged misconduct. See id. The protection of qualified immu-
nity applies regardless of whether the government official’s
error is a mistake of law, a mistake of fact, or a mistake based
on mixed questions of law and fact. Id. Qualified immunity
gives government officials breathing room to make reasonable
but mistaken judgments and protects all but the plainly incom-
petent or those who knowingly violate the law. Potter v. Board
of Regents, 287 Neb. 732, 844 N.W.2d 741 (2014).
   Payne does not argue that the prison procedures prohibiting
inmate-to-inmate mail are constitutionally invalid; rather, he
alleges that the defendants “knew or should have known” that
Robb was not an inmate in a correctional facility and that they
“display[ed] reckless and/or callous disregard for and indiffer-
ence to Payne’s rights.”
   However, all of the evidence in the record demonstrates
that the prison officials acted under a consistent and reason-
able belief that Robb was an inmate in a correctional institu-
tion. The mailroom employee testified that when she returned
the letter from Robb, she believed that the stamp labeling it
from a “Secure Treatment Facility” indicated that the letter
had been sent from a prison. She then followed the procedure
for handling mail from an inmate by checking Payne’s file for
authorization to correspond with the sender and then providing
Payne with a returned mail notice and copy of the envelope.
Her belief that the letter was sent from a correctional facil-
ity because of the stamp labeling it from a “Secure Treatment
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             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

Facility” was reasonable under the circumstances. Qualified
immunity protects officials from reasonable mistakes of fact.
See Pearson v. Callahan, supra.
   Similarly, the evidence in the record demonstrates that the
warden and his assistant warden reasonably relied upon the
envelope’s stamp and the research of their colleagues over the
assertions of Payne as to whether Robb was an inmate when he
sent the letter.
   The evidence in the record demonstrates that Payne’s initial
response was hostile in nature and asserted that the warden
had given him permission to correspond with Robb, an asser-
tion not supported by evidence in the record. The warden’s
administrative assistant testified that she conducted research
and drafted the suggested response stating that Robb was in
a sex offender program in a secure treatment facility and that
Payne was not authorized to correspond with him. The assist­
ant warden testified that when she responded to one of Payne’s
grievances, she relied upon the word “secure” on the envelope
and the information in the inmate file that would have accom-
panied the grievance to believe that Robb was writing from a
correctional institution. Even if mistaken, her understanding
of the nature of the Moose Lake facility was reasonable given
the context.
   Similarly, the warden testified that he believed that a secure
treatment facility referred to a prison and that he had no
actual familiarity with the out-of-state Moose Lake facility.
Documentation from Payne’s Step 2 grievance further demon-
strates that the TSCI staff operated under the belief that Robb
was an inmate in a correctional institution. After receiving
Payne’s grievance and independently researching the issue, the
central office recognized Payne’s claim that Robb was a patient
at the mental health facility in Minnesota, but stated that “[t]he
TSCI staff was informed he is an inmate in a correctional facil-
ity.” The central office response further advised Payne that
“[i]f this is inaccurate, you should provide information to your
unit staff showing the nature of the facility.”
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            PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
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   The records in evidence of Payne’s inmate interview requests
and grievance show that Payne initially asserted that he had
been given permission by the warden to contact Robb and then
repeatedly asserted that Robb was not an inmate. The only doc-
umentary information that Payne submitted on the nature of the
Moose Lake facility was the copy of the envelope and c­ opies
of the warden’s responses that referred to Moose Lake as a
“‘secure treatment facility.’” Given that the officials believed
that the term “secure treatment facility” was synonymous with
prison and understood TSCI staff’s research to have confirmed
their beliefs, it was reasonable for Payne’s presentation of the
envelope not to settle the issue.
   [11] So while Payne’s complaint alleges that the defendants
“knew or should have known” that Robb was not an inmate in
a correctional facility and that they “display[ed] reckless and/
or callous disregard for and indifference to Payne’s rights,”
the evidence adduced does not support the allegation. At most,
it supports a finding of negligence in their failure to inves-
tigate further, which is an insufficient basis upon which to
deny qualified immunity. See Procunier v. Navarette, 434
U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978) (upholding
grant of summary judgment to defendants on basis of qualified
immunity where § 1983 claim for violation of prisoner’s First
Amendment rights by interference with mail were premised on
defendants’ negligent acts). Because Payne’s evidence at the
conclusion of his case in chief failed to establish that it would
be clear to a reasonable prison employee in these employees’
positions that their conduct was unlawful, it was proper for
the district court to direct a verdict on the issue of qualified
immunity. See Wood v. Moss, ___ U.S. ___, 134 S. Ct. 2056,
188 L. Ed. 2d 1039 (2014) (reiterating that dispositive inquiry
for qualified immunity is whether it would be clear to reason-
able officer in agent’s position that his conduct was unlawful in
situation he confronted).
   Accordingly, we agree with the trial court that given the
uncontroverted facts in the record, the employees acted
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            PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 1

according to their reasonable, albeit mistaken, belief that Robb
was an inmate and that a secure treatment facility was a
prison. Therefore, they are entitled to qualified immunity and
the district court did not err in directing a verdict in favor of
the defendants.

Evidence of Prior Lawsuits.
   Payne next assigns that the district court erred in prevent-
ing him from eliciting testimony from the mailroom employee
regarding how many lawsuits had been filed against her since
she began working at TSCI. Payne asserts that prior lawsuits
would be relevant under rule 404 to show knowledge and
argues that she had prior knowledge that her actions were
violating Payne’s constitutional rights. The district court sus-
tained the State’s objection to this question on the grounds
of relevancy.
   [12-14] Rule 404(2) provides:
      Evidence of other crimes, wrongs, or acts is not admis-
      sible to prove the character of a person in order to show
      that he or she acted in conformity therewith. It may, how-
      ever, be admissible for other purposes, such as proof of
      motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident.
A trial court has the discretion to determine the relevancy and
admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of that
discretion. Sturzenegger v. Father Flanagan’s Boys’ Home, 276
Neb. 327, 754 N.W.2d 406 (2008). A judicial abuse of discre-
tion requires that the reasons or rulings of a trial judge be
clearly untenable, unfairly depriving a litigant of a substantial
right and a just result. Id.
   Payne did not make an offer of proof regarding this line
of questioning, so we can only speculate as to what type of
information may have been revealed had Payne been allowed
to question the mailroom employee regarding prior litigation.
We found above that the employee is entitled to qualified
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             PAYNE v. NEBRASKA DEPT. OF CORR. SERVS.
                        Cite as 24 Neb. App. 1

immunity because her belief that the out-of-state Moose Lake
secure treatment facility was a correctional institution was a
reasonable belief, and her actions in withholding Robb’s mail
were reasonable in light of that belief. We find no abuse of dis-
cretion in the district court’s determination that prior litigation
in which she was involved was irrelevant to her knowledge of
whether Moose Lake was a correctional facility for purposes
of qualified immunity. Accordingly, this assignment of error is
without merit.
Damages.
   [15] Payne finally assigns that the district court erred in
finding that he failed to establish a prima facie case for dam-
ages. Because the issue of qualified immunity disposes of this
suit, we do not reach this issue. An appellate court is not obli-
gated to engage in an analysis that is not necessary to adjudi-
cate the case and controversy before it. Facilities Cost Mgmt.
Group v. Otoe Cty. Sch. Dist., 291 Neb. 642, 868 N.W.2d
67 (2015).
                          CONCLUSION
   After conducting a reverse-Erie preemption analysis, we
agree with the district court that Nebraska law governs appoint-
ment of counsel in § 1983 claims brought in Nebraska state
courts. We further find no abuse of discretion in the district
court’s refusal to receive evidence under rule 404 and agree
with the district court’s determination that the defendants are
entitled to qualified immunity. Because the qualified immunity
analysis is dispositive of the case, we do not reach Payne’s
assignment of error regarding damages. Accordingly, we affirm
the order of the district court.
                                                     A ffirmed.
