Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/25/2018 12:06 AM CDT




                                                          -1-
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                                 NESBITT v. FRAKES
                                                  Cite as 300 Neb. 1




                       Thomas Nesbitt,          on behalf of himself and all other
                           similarly situated        Nebraska State Penitentiary
                                        segregated prisoners, appellant, v.
                                         Scott Frakes    et al., appellees.
                                                    ___ N.W.2d ___

                                           Filed May 18, 2018.   No. S-16-931.

                1.	 Motions to Dismiss: Pleadings: Appeal and Error. 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 rea-
                    sonable inferences in favor of the nonmoving party.
                2.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
                    presented for review, an appellate court must determine whether it
                    has jurisdiction.
                3.	 Courts: Jurisdiction. 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.
                4.	 Actions: Moot Question. 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.
                5.	 Moot Question: Words and Phrases. 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.
                6.	 Moot Question. 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.
                7.	 Moot Question: Jurisdiction: Appeal and Error. Although mootness
                    does not prevent appellate jurisdiction, it is a justiciability doctrine that
                    can prevent courts from exercising jurisdiction.
                8.	 Moot Question. As a general rule, a moot case is subject to sum-
                    mary dismissal.
                9.	 Injunction: Intent. The purpose of an injunction is to restrain actions
                    that have not yet been taken.
                                     -2-
             Nebraska Supreme Court A dvance Sheets
                     300 Nebraska R eports
                             NESBITT v. FRAKES
                              Cite as 300 Neb. 1

10.	 Injunction. 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.
11.	 Declaratory Judgments: Moot Question. A declaratory judgment
     action becomes moot when the issues initially presented in the proceed-
     ings no longer exist or the parties lack a legally cognizable interest in
     the outcome of the action.
12.	 Declaratory Judgments: Justiciable Issues. At the time that the decla-
     ration 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.
13.	 Justiciable Issues. A justiciable issue requires a present, substantial
     controversy between parties having adverse legal interests susceptible to
     immediate resolution and capable of present judicial enforcement.
14.	 Moot Question: Appeal and Error. An appellate court may choose to
     review an otherwise moot case under the public interest exception if it
     involves a matter affecting the public interest or when other rights or
     liabilities may be affected by its determination.
15.	 Moot Question: Words and Phrases. The public interest exception
     requires a consideration of the public or private nature of the question
     presented, the desirability of an authoritative adjudication for future
     guidance of public officials, and the likelihood of future recurrence of
     the same or a similar problem.
16.	 Moot Question: Appeal and Error. An application of the public inter-
     est exception to the mootness doctrine is inappropriate when the issues
     presented on appeal do not inherently evade appellate review.
17.	 Class Actions. In order to justify class action treatment, there must exist
     both a question of common or general interest and numerous parties so
     as to make it impracticable to bring all the parties before the court.
18.	 ____. In determining whether a class action is properly brought, consid-
     erable discretion is vested in the trial court.
19.	 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 L.
Nelson, Judge. Appeal dismissed.

   Thomas Nesbitt, pro se.

   Douglas J. Peterson, Attorney General, and Timothy R. Ertz
for appellee.
                              -3-
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       NESBITT v. FRAKES
                        Cite as 300 Neb. 1

  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 overpopu-
lated 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
                                    -4-
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                             NESBITT v. FRAKES
                              Cite as 300 Neb. 1

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 appel-
lees 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 tem-
porary and permanent injunctive relief and declaratory judg-
ment—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 judg-
ment, 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) cer-
tify class members, (b) appoint legal counsel, and (c) issue a
restraining order and temporary injunction.
                   STANDARD OF REVIEW
   [1] 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

 1	
      Salem Grain Co. v. Consolidated Grain & Barge Co., 297 Neb. 682, 900
      N.W.2d 909 (2017).
                                      -5-
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              NESBITT v. FRAKES
                               Cite as 300 Neb. 1

                           ANALYSIS
                            Mootness
   [2,3] 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.
   [4-8] An action becomes moot when the issues initially pre-
sented 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 exer-
cising jurisdiction.7 As a general rule, a moot case is subject
to summary dismissal.8

 2	
      See Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
 3	
      Johnston v. Nebraska Dept. of Corr. Servs., 270 Neb. 987, 709 N.W.2d 321
      (2006).
 4	
      Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).
 5	
      Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898
      N.W.2d 366 (2017).
 6	
      Id.
 7	
      Id.
 8	
      Id.
                                      -6-
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              NESBITT v. FRAKES
                               Cite as 300 Neb. 1

    [9,10] 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 com-
       pel persons to do right but merely to prevent them from
       doing wrong, rights already lost and wrongs already per-
       petrated 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 plain-
tiff 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

 9	
      Stewart, supra note 4.
10	
      Stoetzel & Sons v. City of Hastings, 265 Neb. 637, 645, 658 N.W.2d 636,
      643 (2003).
11	
      Putnam v. Fortenberry, 256 Neb. 266, 271, 589 N.W.2d 838, 843 (1999)
      (quoting Conrad v. Kaup, 137 Neb. 900, 291 N.W. 687 (1940)).
12	
      Putnam, supra note 11.
13	
      Id. at 272, 589 N.W.2d at 843.
                                        -7-
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                               NESBITT v. FRAKES
                                Cite as 300 Neb. 1

   The same analysis applies in this case. If Nesbitt had a per-
sonal 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 injunc-
tive relief he seeks has been rendered moot.
   [11-13] In addition to seeking an injunction against his hous-
ing 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 par-
ties 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 avail-
able, 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 prac-
tices is not rendered moot by the cessation of the challenged
conduct.’”18 However, Rath did not seek to recover the funds

14	
      Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006).
15	
      Board of Trustees v. City of Omaha, 289 Neb. 993, 858 N.W.2d 186
      (2015).
16	
      Id.
17	
      Rath v. City of Sutton, 267 Neb. 265, 673 N.W.2d 869 (2004).
18	
      Id. at 274, 673 N.W.2d at 880. See, also, CMM Cable Rep. v. Ocean
      Coast Properties, Inc., 48 F.3d 618 (1st Cir. 1995); Curtis Indus., Inc. v.
      Livingston, 30 F.3d 96 (8th Cir. 1994).
                                     -8-
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              NESBITT v. FRAKES
                               Cite as 300 Neb. 1

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 legal-
ity 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 dam-
ages. 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 advi-
sory, and “declaratory relief cannot be used to obtain a judg-
ment which is merely advisory.”19 Nesbitt’s request for declara-
tory 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 adminis-
trative 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 evi-
dence. Johnston then sought judicial review of the director’s
decision, alleging that the decision violated the Due Process
Clauses of the federal and state Constitutions. The district court
dismissed Johnston’s action on the ground that a classifica-
tion decision is not subject to review under the Administrative
Procedure Act. On appeal from the district court’s order, the
State filed a motion to dismiss, alleging that Johnston had been
removed from administrative confinement and transferred to
another facility where he was placed into the general popula-
tion. We granted the State’s motion, holding that an inmate’s

19	
      Galyen v. Balka, 253 Neb. 270, 276, 570 N.W.2d 519, 524 (1997).
20	
      Johnston, supra note 3.
                                     -9-
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              NESBITT v. FRAKES
                               Cite as 300 Neb. 1

transfer from administrative confinement status to the general
population moots any argument related to the inmate’s initial
placement in administrative confinement.21
   Nearly 20 years ago, in Smith v. Hundley,22 the U.S. Eighth
Circuit Court of Appeals considered an issue nearly identical
to Nesbitt’s. An inmate at the Iowa State Penitentiary, Duane
Joseph Smith, filed suit against the state prison officials under
42 U.S.C. § 1983 (1994). Smith sought injunctive and declara-
tory relief, claiming his First Amendment rights were violated
because he was precluded from purchasing items necessary
to practice his “Seax-Wicca faith.”23 During the legal pro-
ceedings, Smith was transferred to another facility. The court
held that an inmate’s claims for declaratory and injunctive
relief to improve prison conditions become moot when he or
she is transferred to another facility and no longer subject to
those conditions.24
   Here, Nesbitt’s claims for injunctive relief and declara-
tory judgment rest upon his allegation that overcrowding, cell
assignments, flooding, and inadequate showering conditions
negatively affect his unique physical ailments. Because Nesbitt
has been transferred to another facility and is no longer sub-
ject to those conditions, his claims do not rest upon existing
facts. Thus, as to him, it is no longer necessary to consider the
issue of whether a court can review and countermand Nesbitt’s
housing conditions at the NSP.
   [14-16] Though we conclude that Nesbitt’s claims for
declaratory judgment and injunctive relief are moot, an appel-
late court may choose to review an otherwise moot case under
the public interest exception if it involves a matter affecting

21	
      Id.
22	
      Smith v. Hundley, 190 F.3d 852 (8th Cir. 1999).
23	
      Id. at 853.
24	
      Smith v. Hundley, supra note 22. See, also, Gladson v. Iowa Dept. of
      Corrections, 551 F.3d 825 (8th Cir. 2009); Martin v. Sargent, 780 F.2d
      1334 (8th Cir. 1985); Wycoff v. Brewer, 572 F.2d 1260 (8th Cir. 1978).
                                    - 10 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                             NESBITT v. FRAKES
                              Cite as 300 Neb. 1

the public interest or when other rights or liabilities may be
affected by its determination.25 This exception requires a con-
sideration of the public or private nature of the question pre-
sented, the desirability of an authoritative adjudication for
future guidance of public officials, and the likelihood of future
recurrence of the same or a similar problem.26 An applica-
tion of the public interest exception to the mootness doctrine
is inappropriate when the issues presented on appeal do not
inherently evade appellate review.27
   We decline to apply the public interest exception in this
case. It is clear that the issues raised by Nesbitt are capable of
repetition, as other inmates are subject to the complained-of
housing conditions at the NSP. If a similar claim is brought,
appellate judicial review is likely to occur. However, Nesbitt
has not demonstrated a reasonable likelihood that he will be
subject to the housing conditions existing at NSP, as he is no
longer residing in that facility. In addition, Nesbitt’s allegations
detailing how the housing conditions affect his unique personal
medical condition render the dispute less public in nature
and more private in nature. As a result, we decline to apply
the public interest exception to Nesbitt’s claims. Therefore,
no exception applies, and we must dismiss Nesbitt’s appeal
as moot.

                         Class Action
   [17,18] Nesbitt further contends that his complaint is filed
in his own behalf and on behalf of all others similarly situated.
Class actions are authorized under Neb. Rev. Stat. § 25-319
(Reissue 2016), which provides: “When the question is one
of a common or general interest of many persons, or when
the parties are very numerous, and it may be impracticable to

25	
      Al-Ameen v. Frakes, 293 Neb. 248, 876 N.W.2d 635 (2016).
26	
      Id.
27	
      Johnston, supra note 3.
                                     - 11 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              NESBITT v. FRAKES
                               Cite as 300 Neb. 1

bring them all before the court, one or more may sue or defend
for the benefit of all.” In order to justify class action treat-
ment, there must exist “‘both a question of common or general
interest and numerous parties so as to make it impracticable
to bring all the parties before the court.’”28 In determining
whether a class action is properly brought, considerable discre-
tion is vested in the trial court.29
   In Miller v. City of Omaha,30 we stated that an action may
not be maintained as a class action by a plaintiff on behalf of
himself or herself and others unless he or she has the power
as a member of the class to satisfy a judgment on behalf of all
members of the class.
   Because Nesbitt’s claims for injunctive relief and declara-
tory judgment are moot, he lacks commonality with members
of the purported class on whose behalf he sought to litigate
similar claims. The district court did not err in concluding that
because Nesbitt could not maintain his individual cause of
action against the appellees, he was unqualified to represent
the purported class.
                           Pleadings
   [19] Nesbitt argues that his “pro se” complaint should be
held to a less stringent standard and that he set forth short,
plain statements of his claims for relief. Because we conclude
that Nesbitt’s claims are moot, we do not reach this plead-
ing issue. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and con-
troversy before it.31

28	
      Lynch v. State Farm Mut. Auto. Ins. Co., 275 Neb. 136, 144, 745 N.W.2d
      291, 298 (2008) (emphasis in original) (quoting Hoiengs v. County of
      Adams, 245 Neb. 877, 516 N.W.2d 223 (1994)).
29	
      Lynch, supra note 28.
30	
      Miller v. City of Omaha, 253 Neb. 798, 573 N.W.2d 121 (1998).
31	
      Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb. 43, 907
      N.W.2d 1 (2018).
                              - 12 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       NESBITT v. FRAKES
                        Cite as 300 Neb. 1

                         CONCLUSION
   We conclude that Nesbitt’s claims for injunctive relief and
declaratory judgment are moot, as he is no longer subject to
the housing conditions of which he complains. Regarding his
claim for certification of a class action, because his underly-
ing claims are moot and have been dismissed, Nesbitt lacks
commonality with members of the purported class on whose
behalf he sought to litigate similar claims. And in regard to
his argument that he has stated claim upon which relief may
be granted if tested under lenient pleading standards, we
decline to reach the issue, as it is not necessary to adjudicate
this dispute.
                                             A ppeal dismissed.
   Funke, J., participating on briefs.
   Wright and Stacy, JJ., not participating.
