Schaeffer v. Frakes , 306 Neb. 904 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    SCHAEFFER v. FRAKES
    Cite as 
    306 Neb. 904
    Bernard Schaeffer, appellant, v.
    Scott Frakes et al., appellees.
    ___ N.W.2d ___
    Filed August 21, 2020.   No. S-19-938.
    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. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss
    for failure to state a claim, a plaintiff must allege sufficient facts to state
    a claim to relief that is plausible on its face. In cases in which a plaintiff
    does not or cannot allege specific facts showing a necessary element, the
    factual allegations, taken as true, are nonetheless plausible if they sug-
    gest the existence of the element and raise a reasonable expectation that
    discovery will reveal evidence of the element or claim.
    3. Constitutional Law: Actions. A civil remedy is provided under 42
    U.S.C. § 1983 (2012) for deprivations of federally protected rights,
    statutory or constitutional, caused by persons acting under color of
    state law.
    4. ____: ____. In order to assert a claim under 42 U.S.C. § 1983 (2012),
    the plaintiff must allege that he or she has been deprived of a federal
    constitutional right and that such deprivation was committed by a person
    acting under color of state law.
    5. Sentences. The meaning of a sentence is, as a matter of law, determined
    by the contents of the sentence itself.
    6. Due Process. A plaintiff asserting the inadequacy of procedural due
    process must first establish that the government deprived him or her of
    interests which constitute “liberty” or “property” within the meaning of
    the Due Process Clause.
    7. Due Process: Public Officers and Employees. The due process protec-
    tion in its substantive sense limits what the government may do in both
    its legislative and its executive capacities. But the criteria to identify
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    SCHAEFFER v. FRAKES
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    what is fatally arbitrary differ depending on whether it is legislation or a
    specific act of a government officer that is at issue.
    8. ____: ____. The substantive component of the Due Process Clause is
    violated by executive action only when it can properly be characterized
    as arbitrary, or conscience shocking, in a constitutional sense.
    Appeal from the District Court for Lancaster County:
    Andrew R. Jacobsen, Judge. Affirmed.
    Gerald L. Soucie for appellant.
    Douglas J. Peterson, Attorney General, and James D. Smith
    for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    and Papik, JJ.
    Papik, J.
    Bernard Schaeffer alleges in this action brought under
    42 U.S.C. § 1983 (2012) that officials within the Nebraska
    Department of Correctional Services (DCS) violated his federal
    constitutional rights in the calculation of his parole eligibil-
    ity date. The district court dismissed Schaeffer’s complaint,
    finding that the U.S. Supreme Court’s decision in Wilkinson
    v. Dotson, 
    544 U.S. 74
    , 78, 
    125 S. Ct. 1242
    , 
    161 L. Ed. 2d 253
    (2005), precluded him from bringing his complaint under
    § 1983 because he sought to challenge “‘the fact or duration of
    his confinement.’” On Schaeffer’s appeal of the district court’s
    dismissal, we find that Schaeffer has failed to adequately allege
    that his federal constitutional rights were violated, as he must
    to proceed under § 1983, and thus affirm.
    BACKGROUND
    Schaeffer’s Convictions.
    The following details are summarized from Schaeffer’s
    complaint: On May 26, 1977, Schaeffer was arrested in Hall
    County, Nebraska, for first degree murder. He later pleaded
    guilty to first degree murder in the district court for Hall
    County. Schaeffer was still a juvenile when the murder was
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    SCHAEFFER v. FRAKES
    Cite as 
    306 Neb. 904
    committed. On September 30, he was sentenced to life impris-
    onment. This sentence was mandatory under then-existing
    Nebraska law.
    On April 12, 1979, Schaeffer was sentenced on an assault
    conviction in the district court for Lancaster County. He was
    sentenced to a term of 1 to 2 years’ imprisonment, which was
    to be served consecutively to any other sentences being served.
    DCS combined this sentence with his earlier life sentence into a
    single sentence of imprisonment for life plus 1 to 2 years.
    On May 25, 1983, Schaeffer was sentenced on another
    assault conviction in the district court for Lancaster County.
    He was sentenced to a term of 12 to 40 years’ imprisonment,
    which was to be served consecutively to any other sentences
    being served. DCS combined the sentence with his earlier sen-
    tences into a single sentence of imprisonment for life plus 13
    to 42 years.
    Schaeffer was not entitled to credit for time served from
    the date of his arrest in May 1977 because he received a life
    sentence. He was not entitled to credit for time served on
    either of his assault convictions because he was already serv-
    ing a sentence at the time of those convictions. Because he
    was serving a combined sentence of imprisonment for life plus
    13 to 42 years, he could not earn “good time” toward parole
    or discharge.
    Initial Postconviction Proceeding
    and Resentencing.
    On April 4, 2013, Schaeffer filed a verified motion for
    postconviction relief in the district court for Hall County alleg-
    ing that his life sentence was void or voidable under the 8th
    or 14th Amendments to the U.S. Constitution as a result of
    the U.S. Supreme Court decision in Miller v. Alabama, 
    567 U.S. 460
    , 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012). On
    February 24, 2016, the district court for Hall County entered an
    order granting postconviction relief and vacating Schaeffer’s
    life sentence.
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    After a sentencing hearing, the district court for Hall County
    resentenced Schaeffer on his first degree murder conviction on
    January 3, 2017. Schaeffer was sentenced to 70 to 90 years’
    imprisonment. The district court also stated that Schaeffer was
    entitled to credit for time served dating back to his May 26,
    1977, arrest. The district court concluded this amounted to
    14,472 days.
    The district court provided a truth-in-sentencing advisement.
    The district court stated that on the new first degree murder
    sentence alone, Schaeffer would be parole eligible after 35
    years, assuming maximum good time, and his mandatory dis-
    charge date would be after 45 years, again assuming maximum
    good time. The district court went on to say:
    “However, considering the additional sentences to be
    served out of Lancaster County with aggregate sentences
    of 13 to 42 years, under current good-time law, you will
    be parole eligible after 41.5 years[,] assuming maximum
    good time, less credit for time served, and your manda-
    tory discharge date would be after 66 years, again assum-
    ing maximum good time, less credit for time served.”
    Schaeffer filed a direct appeal, but later moved to dismiss it.
    Dispute Regarding Schaeffer’s
    Parole Eligibility Date.
    DCS determined that Schaeffer will not be eligible for
    parole until February 20, 2033. Schaeffer alleges that DCS
    applied 1975 Neb. Laws, L.B. 567, to calculate his parole eli-
    gibility date. L.B. 567 was the good time law in effect at the
    time of Schaeffer’s convictions. Schaeffer asserts that DCS
    should have calculated his parole eligibility date by applying
    the good time law in effect at the time of his resentencing,
    which he claims is 2011 Neb. Laws, L.B. 191. See Neb. Rev.
    Stat. § 83-1,107 (Cum. Supp. 2018). Schaeffer also alleges that
    the parole eligibility date determined by DCS conflicts with the
    truth-in-sentencing advisement provided by the district court
    for Hall County.
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    Schaeffer filed another motion for postconviction relief in
    which he attempted to challenge DCS’ determination of his
    parole eligibility date. The district court denied relief, explain-
    ing that Schaeffer had not shown that his sentence was uncon-
    stitutional, but had only challenged postsentencing actions
    by DCS.
    Schaeffer also filed various grievances with DCS in which
    he alleged that it had not correctly calculated his parole eligi-
    bility date. DCS’ responses to those grievances explained how
    DCS was calculating Schaeffer’s parole eligibility date and
    maintained it was doing so correctly.
    Schaeffer alleged that there are other individuals in the cus-
    tody of DCS who also had life sentences vacated under 
    Miller, supra
    , but have had their parole eligibility dates calculated
    differently. Schaeffer identified nine inmates who were sen-
    tenced to life without parole but also had other term of years
    sentences for which no presentencing credit was awarded. He
    alleged that after these inmates were resentenced, they, unlike
    him, received “day-for-day” good time credit to determine
    their parole eligibility date. According to Schaeffer, if he
    would have received the same “day-for-day” credit for good
    time, he would have been eligible for parole as of November
    28, 2018.
    § 1983 Action.
    Schaeffer made the foregoing allegations in a complaint
    filed against three DCS officials (collectively referred to
    as “DCS”) in the district court for Lancaster County under
    § 1983. Schaeffer contended that by determining that his parole
    eligibility date was February 20, 2033, DCS violated his rights
    under various provisions of the U.S. Constitution. In particular,
    he alleged that DCS violated his right to be free from cruel
    and unusual punishment under the 8th Amendment, his right to
    due process of law under the 14th Amendment, and his right to
    equal protection under the 14th Amendment.
    Schaeffer sought a declaration that DCS’ determination of
    his parole eligibility date violated the provisions of the U.S.
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    Constitution described above and an order enjoining DCS
    from enforcing their determination of his parole eligibility
    date. He also sought attorney fees under 42 U.S.C. § 1988
    (2012). Schaeffer did not seek a declaration of his parole eli-
    gibility date under state law.
    DCS successfully moved to dismiss Schaeffer’s complaint.
    The district court concluded that Schaeffer’s action could not
    proceed under the U.S. Supreme Court’s decision in Wilkinson
    v. Dotson, 
    544 U.S. 74
    , 78, 
    125 S. Ct. 1242
    , 
    161 L. Ed. 2d 253
    (2005), which prohibits prisoners in state custody from using
    a § 1983 action to challenge “‘the fact or duration of [their]
    confinement.’” The district court concluded that Schaeffer was
    attacking the duration of his confinement by seeking an earlier
    parole eligibility date.
    Schaeffer appeals the dismissal of his § 1983 action.
    ASSIGNMENT OF ERROR
    Schaeffer assigns that the district court erred by granting
    DCS’ motion to dismiss.
    STANDARD OF REVIEW
    [1,2] 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. Salem Grain Co. v. Consolidated
    Grain & Barge Co., 
    297 Neb. 682
    , 
    900 N.W.2d 909
    (2017). To
    prevail against a motion to dismiss for failure to state a claim,
    a plaintiff must allege sufficient facts to state a claim to relief
    that is plausible on its face. Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
    (2017). In cases in which a plaintiff does not or
    cannot allege specific facts showing a necessary element, the
    factual allegations, taken as true, are nonetheless plausible if
    they suggest the existence of the element and raise a reasonable
    expectation that discovery will reveal evidence of the element
    or claim.
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    SCHAEFFER v. FRAKES
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    306 Neb. 904
    ANALYSIS
    Exception to § 1983 for Suits Challenging
    Fact or Duration of Confinement.
    [3,4] A civil remedy is provided under § 1983 for depriva-
    tions of federally protected rights, statutory or constitutional,
    caused by persons acting under color of state law. Waldron
    v. Roark, 
    292 Neb. 889
    , 
    874 N.W.2d 850
    (2016). In order to
    assert a claim under § 1983, the plaintiff must allege that he or
    she has been deprived of a federal constitutional right and that
    such deprivation was committed by a person acting under color
    of state law.
    Id. The district court
    found that Schaeffer’s claims could not be
    brought under § 1983, not because he failed to plausibly allege
    that he had been deprived of a federal constitutional right, but
    because he asserted such claims in order to challenge the fact
    or duration of his confinement. The district court concluded
    that the U.S. Supreme Court’s opinion in 
    Wilkinson, supra
    ,
    precluded claims that sought such relief from being asserted in
    a § 1983 action and thus dismissed Schaeffer’s complaint.
    The parties’ initial briefs on appeal focused exclusively on
    whether Schaeffer sought to challenge the fact or duration of
    his confinement and thus whether the U.S. Supreme Court’s
    opinion in Wilkinson precluded Schaeffer from seeking such
    relief under § 1983. Schaeffer argued that because he was not
    seeking immediate release from custody in this action, he was
    not challenging the fact or duration of his confinement and
    Wilkinson permitted him to pursue his claims under § 1983.
    The State argued that Wilkinson did not permit a challenge
    to the calculation of an inmate’s parole eligibility date. After
    oral argument, we directed the parties to file supplemental
    briefs addressing whether Schaeffer adequately alleged a fed-
    eral constitutional violation under any of the theories asserted
    in his complaint.
    We determine that it is not necessary to decide whether
    Schaeffer’s action is an impermissible challenge to the fact
    or duration of his confinement under Wilkinson because, even
    assuming it is not, his complaint did not adequately allege
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    any violations of his federal constitutional rights and thus the
    district court did not err by dismissing his complaint for fail-
    ure to state a claim. Before explaining our reasoning for this
    conclusion, we pause briefly to reject the assertion made in
    Schaeffer’s supplemental brief that we may not, under Weber v.
    Gas ’N Shop, 
    278 Neb. 49
    , 
    767 N.W.2d 746
    (2009), consider
    whether he adequately alleged a violation of his constitutional
    rights in the absence of a cross-appeal from DCS.
    Schaeffer invokes two propositions from Weber, but neither
    applies here. One is that an appellee’s argument that a lower
    court’s decision should be upheld on grounds specifically
    rejected below constitutes a request for affirmative relief, and
    the appellee must cross-appeal in order for that argument to be
    considered. That proposition has no application here because
    the district court did not specifically reject an argument that
    Schaeffer failed to adequately allege any federal constitutional
    violations; its order spoke only to its conclusion that Schaeffer
    was impermissibly challenging the fact or duration of his con-
    finement under § 1983.
    The other proposition Schaeffer invokes is that an appellate
    court will not consider an issue on appeal that was not pre-
    sented to or passed upon by the trial court. That also does not
    apply here. Whether Schaeffer stated a claim upon which relief
    can be granted under § 1983 is the issue presented on appeal,
    and the district court “passed upon” that issue. Although the
    district court did not dismiss Schaeffer’s complaint by consid-
    ering his alleged federal constitutional violations one by one, it
    did conclude that Schaeffer failed to state a claim upon which
    relief could be granted under § 1983. See Gonzalez v. Union
    Pacific RR. Co., 
    282 Neb. 47
    , 
    803 N.W.2d 424
    (2011) (consid-
    ering alternative grounds for affirming dismissal of complaint
    for failure to state claim).
    Eighth Amendment.
    We begin our analysis of Schaeffer’s individual alleged
    constitutional violations with his claim that DCS violated his
    Eighth Amendment right to be free from cruel and unusual
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    punishment when it determined that he would not be eligible
    for parole until February 20, 2033. In support of his argument
    that he has stated a plausible claim for relief under the Eighth
    Amendment, Schaeffer relies on Miller v. Alabama, 
    567 U.S. 460
    , 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012). Schaeffer
    argues that Miller imposes an Eighth Amendment procedural
    requirement in cases in which a defendant was sentenced to
    life without parole for an offense committed before reaching 18
    years of age. In those cases, he contends, Miller requires that
    the sentencing court determine the date at which the defendant
    will become eligible for parole. And because he understands
    the district court for Hall County to have determined that he
    would be eligible for parole on November 28, 2018, Schaeffer
    contends DCS has violated his Eighth Amendment rights by
    concluding otherwise.
    [5] Schaeffer is essentially arguing that the sentencing court’s
    truth-in-sentencing advisement must prevail over the terms of
    the pronounced sentence. This has been rejected as a matter of
    state law. We have held that the meaning of a sentence is, as a
    matter of law, determined by the contents of the sentence itself.
    State v. Russell, 
    291 Neb. 33
    , 
    863 N.W.2d 813
    (2015). We have
    also held that the pronounced terms of imprisonment prevail
    over any conflicting truth-in-sentencing advisements. See
    id. We do not
    understand Schaeffer to challenge these principles
    of state law generally, but to argue that Miller requires that
    they not be followed in this unique context.
    We do not, however, understand Miller to stand for the
    proposition Schaeffer argues. In Miller, petitioners commit-
    ted homicide offenses when 14 years of age and received life
    without the possibility of parole sentences as mandated by state
    law. The petitioners challenged their life without the possibility
    of parole sentences as violating the Eighth Amendment.
    The U.S. Supreme Court observed that petitioners’ chal-
    lenges implicated “precedent reflecting our concern with pro-
    portionate punishment.” 
    Miller, 567 U.S. at 470
    . The Court
    noted that both its decision in Roper v. Simmons, 
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    551, 
    125 S. Ct. 1183
    , 
    161 L. Ed. 2d 1
    (2005), holding that the
    Eighth Amendment did not permit capital punishment for an
    offense committed by a juvenile, and its decision in Graham
    v. Florida, 
    560 U.S. 48
    , 
    130 S. Ct. 2011
    , 
    176 L. Ed. 2d 825
    (2010), holding that the same constitutional provision prohib-
    ited a life without parole sentence for a nonhomicide offense
    committed by a juvenile, recognized that juveniles were dif-
    ferent than adults in various ways relevant to sentencing. In
    particular, the Court noted its prior conclusions that, compared
    to adults, juveniles were not as mature, they were more sus-
    ceptible to negative outside influences, and their character
    traits were less fixed. Although it recognized that its decisions
    in Roper and Graham did not directly address a mandatory
    life without parole sentence for a homicide, it concluded that
    such a sentence nonetheless violated the “foundational prin-
    ciple” recognized in those cases: that “imposition of a State’s
    most severe penalties on juvenile offenders cannot proceed as
    though they were not children.” Miller v. Alabama, 
    567 U.S. 460
    , 474, 
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012). Based
    on this reasoning, the Court held in Miller that “the Eighth
    Amendment forbids a sentencing scheme that mandates life in
    prison without possibility of parole for juvenile 
    offenders.” 567 U.S. at 479
    .
    Schaeffer’s Eighth Amendment claim is much different than
    the claims asserted by the petitioners in Miller. Unlike the peti-
    tioners in Miller, Schaeffer is not contending that his Eighth
    Amendment rights were violated because he was sentenced
    to a mandatory term of life without the possibility of parole.
    Schaeffer did successfully challenge his initial sentence for
    first degree murder on this basis, but he was resentenced and
    he does not allege that the district court did not follow Miller
    upon resentencing.
    Rather than alleging that his sentence does not comply with
    the dictates of Miller, Schaeffer contends that DCS ran afoul
    of Miller when it calculated his parole eligibility date after
    resentencing. But contrary to Schaeffer’s assertion otherwise,
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    we see nothing in Miller holding that the Eighth Amendment
    requires that sentencing courts select the specific date on
    which a juvenile offender will be eligible for parole or that a
    sentencing court’s advisement to a defendant as to when he or
    she will be eligible for parole must be given controlling effect
    by executive officials. Miller held that mandatory life impris-
    onment without the possibility of parole sentences for juvenile
    offenders violate the Eighth Amendment; it does not speak
    to constitutional requirements regarding the calculation of a
    parole eligibility date.
    Because the basis for his claim is not legally viable, we con-
    clude Schaeffer has failed to state a plausible claim for relief
    under the Eighth Amendment.
    Due Process.
    Schaeffer also alleges that DCS violated his 14th Amendment
    right to due process of law when it determined that he would
    not be eligible for parole until February 20, 2033. We thus
    consider whether Schaeffer has stated a plausible due proc­
    ess claim.
    The Due Process Clause of the federal Constitution has
    been interpreted to provide both procedural and substantive
    protections. See Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
    (2017). In its procedural sense, it polices the procedures under
    which the government seeks to deprive individuals of life,
    liberty, or property. See County of Sacramento v. Lewis, 
    523 U.S. 833
    , 
    118 S. Ct. 1708
    , 
    140 L. Ed. 2d 1043
    (1998). In its
    substantive sense, it guards against the exercise of government
    power without adequate justification. See
    id. [6]
    A plaintiff asserting the inadequacy of procedural due
    process must first establish that the government deprived
    him or her of interests which constitute “liberty” or “prop-
    erty” within the meaning of the Due Process Clause. Doe v.
    Board of Regents, 
    280 Neb. 492
    , 
    788 N.W.2d 264
    (2010),
    overruled on other grounds, 
    Davis, supra
    . If the plaintiff can
    establish the deprivation of such an interest, the next question
    is whether the procedures followed by the government were
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    constitutionally adequate. See Swarthout v. Cooke, 
    562 U.S. 216
    , 
    131 S. Ct. 859
    , 
    178 L. Ed. 2d 732
    (2011).
    In his supplemental brief, Schaeffer appears to argue that he
    has alleged a procedural due process violation. In that brief,
    he asserts that he is being deprived of a liberty interest and
    that the State was required to offer fair procedures to vindicate
    that interest. Schaeffer seems to argue that he has a liberty
    interest in having his parole date accurately calculated accord-
    ing to state law.
    In Greenholtz v. Nebraska Penal Inmates, 
    442 U.S. 1
    , 
    99 S. Ct. 2100
    , 
    60 L. Ed. 2d 668
    (1979), the U.S. Supreme Court
    rejected the argument that a liberty interest in parole arises
    whenever a state provides for the possibility of parole. The
    Court went on to hold, however, that state statutes may create
    liberty interests in parole release that are entitled to protec-
    tion under the Due Process Clause. The Court concluded that
    the mandatory language of a Nebraska statute setting forth the
    circumstances under which an inmate was entitled to parole
    created an “expectancy of release” and that this was a liberty
    interest entitled to due process protection. 
    Greenholtz, 442 U.S. at 12
    . The U.S. Supreme Court applied Greenholtz to reach
    essentially the same conclusion regarding Montana’s parole
    system in Board of Pardons v. Allen, 
    482 U.S. 369
    , 
    107 S. Ct. 2415
    , 
    96 L. Ed. 2d 303
    (1987).
    While Greenholtz involved mandatory language in the stat-
    ute governing the circumstances in which an inmate was
    ­entitled to an order of parole, Schaeffer argues that there is
    similarly mandatory statutory language governing when an
    inmate is eligible for parole. Here, Schaeffer points us to
    § 83-1,107, as well as Neb. Rev. Stat. §§ 83-1,110 (Reissue
    2016) and 83-1,111 (Cum. Supp. 2018), and contends these
    statutes frame the duty to calculate a prisoner’s parole eligibil-
    ity date in mandatory terms and thus must also create a liberty
    interest entitled to due process protection.
    But even if we assume Schaeffer has demonstrated that
    Nebraska’s parole eligibility statutes create a liberty interest
    entitled to due process protection, it does not follow that he
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    has stated a procedural due process claim. As noted above,
    even if a protected liberty or property interest is established,
    to prevail on a procedural due process claim, a plaintiff must
    also show that the procedures followed by the government rela-
    tive to that interest were constitutionally inadequate. See, e.g.,
    
    Swarthout, supra
    . As we will explain, Schaeffer has not alleged
    facts suggesting constitutionally inadequate procedures.
    The U.S. Supreme Court has held that even when, as in
    Greenholtz and Allen, a state statute creates a liberty interest in
    parole, the procedures required are minimal. In Greenholtz, the
    Court held that the prisoner received adequate process because
    he was allowed the opportunity to be heard and was provided
    a statement of reasons why parole was denied. The Court held
    that “[t]he Constitution does not require more.” 
    Id., 442 U.S. at 16
    .
    More recently, in Swarthout v. Cooke, 
    562 U.S. 216
    , 131 S.
    Ct. 859, 
    178 L. Ed. 2d 732
    (2011), the U.S. Supreme Court
    reaffirmed that the procedures required when a state creates a
    liberty interest in the parole context are limited. In Swarthout,
    the Court reversed decisions of the U.S. Court of Appeals for
    the Ninth Circuit holding that prisoners in California state cus-
    tody were entitled to federal habeas relief because they were
    denied parole in violation of their right to due process. The
    Court began its analysis by observing that even if California
    had created a liberty interest in parole, Greenholtz required
    only that the prisoners be given an opportunity to be heard and
    a statement of the reasons why parole was denied. Because the
    prisoners in Swarthout received this amount of process, that
    “should have been the beginning and the end” of the inquiry
    into whether they received due 
    process. 562 U.S. at 220
    . The
    Ninth Circuit erred, the Court explained, by going on to review
    whether the decision by California state officials to deny parole
    was correct. As the Court put it, “[b]ecause the only federal
    right at issue is procedural, the relevant inquiry is what process
    [the prisoners] received, not whether the state court decided the
    case correctly.”
    Id., 562
    U.S. at 222.
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    When the reasoning of Greenholtz and Swarthout is applied
    to Schaeffer’s allegations, it becomes apparent that he has
    not adequately alleged that he did not receive procedural due
    process. Schaeffer’s complaint discloses that he had and took
    advantage of multiple opportunities to communicate with DCS
    as to his view of how his parole eligibility date ought to be
    calculated. It also discloses that DCS provided explanations
    for its contrary calculation of his parole eligibility date. Thus,
    even assuming that Schaeffer had a liberty interest concerning
    his parole eligibility date, his own complaint indicates that he
    was provided with the minimal process required.
    It is not clear that Schaeffer is contending that he also stated
    a violation of substantive due process. His supplemental brief
    speaks only of fair procedures rather than the outcome of those
    procedures. Furthermore, we read the language in Swarthout
    that the “only federal right at issue is procedural” to, at the
    very least, cast doubt on whether there is a substantive due
    process right to a particular outcome in the parole 
    context. 562 U.S. at 222
    . But even if we assume such a right exists,
    Schaeffer has not stated a plausible claim that his right to sub-
    stantive due process was violated.
    [7,8] The due process protection in its substantive sense
    limits what the government may do in both its legislative and
    its executive capacities. Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
    (2017). But the criteria to identify what is fatally
    arbitrary differ depending on whether it is legislation or a
    specific act of a government officer that is at issue.
    Id. The substantive component
    of the Due Process Clause is violated
    by executive action only when it can properly be characterized
    as arbitrary, or conscience shocking, in a constitutional sense.
    Id. A litigant seeking
    to establish that a government action is
    arbitrary or conscience shocking in the constitutional sense
    faces a high bar. See, e.g., Buckley v. Ray, 
    848 F.3d 855
    (8th
    Cir. 2017).
    We do not believe Schaeffer has alleged any facts that
    meet the high bar of conscience-shocking government action.
    At bottom, Schaeffer’s complaint in this action is that DCS
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    improperly calculated his parole eligibility date under state
    law. It is well accepted, however, that a mere violation of
    state law, without more, does not rise to the level of conscience
    shocking. See, e.g., Draper v. City of Festus, Mo., 
    782 F.3d 948
    (8th Cir. 2015); Doe ex rel. Magee v. Covington County School
    Dist., 
    675 F.3d 849
    (5th Cir. 2012); J.R. v. Gloria, 
    593 F.3d 73
    (1st Cir. 2010).
    Equal Protection.
    This leaves only Schaeffer’s claim that DCS has violated
    his right to equal protection under the 14th Amendment to
    the federal Constitution. In analyzing this claim, we must
    note at the outset that Schaeffer’s claim is unlike most equal
    protection claims. In most equal protection claims, a plaintiff
    alleges that some state action unlawfully discriminates between
    classes or groups of people. So, to note just a few examples,
    a plaintiff might claim that the government is committing an
    equal protection violation by treating people below a certain
    age differently than those above a certain age, see, e.g., State
    v. Hibler, 
    302 Neb. 325
    , 
    923 N.W.2d 398
    (2019); by treating
    males differently than females, see, e.g., Friehe v. Schaad, 
    249 Neb. 825
    , 
    545 N.W.2d 740
    (1996); or by treating people with
    one color of skin differently than those with another, see, e.g.,
    Brown v. Board of Education, 
    347 U.S. 483
    , 
    74 S. Ct. 686
    , 
    98 L. Ed. 373
    (1954). Some courts have referred to such claims
    as a “traditional, class-based” equal protection claim. See, e.g.,
    Davis v. Prison Health Services., 
    679 F.3d 433
    , 442 (6th Cir.
    2012). Accord Flowers v. City of Minneapolis, Minn., 
    558 F.3d 794
    (8th Cir. 2009).
    Schaeffer, on the other hand, is not claiming that the gov-
    ernment is unlawfully treating him differently than others
    based on his belonging to any group or because he shares
    some trait or characteristic held by others. He is instead
    alleging that in calculating his parole eligibility date, DCS is
    singling out him and him alone for unfair treatment, specifi-
    cally by calculating his parole eligibility date differently than
    it has for other individuals in Nebraska who were ordered
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    to be resentenced based on Miller v. Alabama, 
    567 U.S. 460
    ,
    
    132 S. Ct. 2455
    , 
    183 L. Ed. 2d 407
    (2012). This, Schaeffer
    contends, is sufficient to proceed under a “class-of-one” equal
    protection theory as recognized by the U.S. Supreme Court
    in Village of Willowbrook v. Olech, 
    528 U.S. 562
    , 
    120 S. Ct. 1073
    , 
    145 L. Ed. 2d 1060
    (2000). Supplemental brief for
    appellant at 17.
    In Olech, a property owner alleged that the municipality in
    which she lived conditioned connecting its water supply to her
    property on granting the municipality a 33-foot easement. The
    property owner alleged that the municipality had required only
    a 15-foot easement from other property owners. The property
    owner sued, alleging that the 33-foot easement demand was
    “‘irrational and wholly arbitrary’” and “motivated by ill will”
    as a result of the property owner’s previous filing of an unre-
    lated, successful lawsuit against the municipality. 
    Id., 528 U.S. at 563
    . The case eventually reached the U.S. Supreme Court,
    which noted that it had in the past “recognized successful
    equal protection claims brought by a ‘class-of-one,’ where the
    plaintiff alleges that she has been intentionally treated differ-
    ently from others similarly situated and that there is no rational
    basis for the difference in treatment.” 
    Id., 528 U.S. at 564
    .
    The Court found that the complaint in Olech stated a claim
    for relief under this theory, concluding that it alleged that the
    municipality intentionally treated her differently than similarly
    situated property owners and that this difference in treatment
    was “‘irrational and wholly arbitrary.’”
    Id., 528
    U.S. at 565.
    Olech thus recognizes that, at least in some circumstances, a
    plaintiff may pursue an equal protection claim without alleging
    mistreatment based on membership in a class or group. But see
    Engquist v. Oregon Dept. of Agriculture, 
    553 U.S. 591
    , 128 S.
    Ct. 2146, 
    170 L. Ed. 2d
    975 (2008) (holding that class-of-one
    equal protection claim is not cognizable in context of pub-
    lic employment).
    While post-Olech courts have reached somewhat different
    conclusions about what exactly a plaintiff must prove in order
    to prevail on a class-of-one theory, a subject we will return
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    to in a moment, there is a consensus that certain elements are
    required. There is widespread agreement that a class-of-one
    plaintiff must at least show (1) the defendant treated him or
    her differently from others similarly situated, (2) the defendant
    did so intentionally, and (3) there was no rational basis for the
    difference in treatment. See, e.g., Madar v. U.S. Citizenship
    and Immigration Services, 
    918 F.3d 120
    (3d Cir. 2019). See,
    also, Zell v. Ricci, 
    957 F.3d 1
    (1st Cir. 2020); Crain v. City of
    Selma, 
    952 F.3d 634
    (5th Cir. 2020); Johnson v. Morales, 
    946 F.3d 911
    (6th Cir. 2020); Mensie v. City of Little Rock, 
    917 F.3d 685
    (8th Cir. 2019); King v. Rubenstein, 
    825 F.3d 206
    (4th
    Cir. 2016). We agree with these courts that, at the very least,
    Olech requires a class-of-one plaintiff to show these three ele-
    ments. In doing so, we acknowledge that some have criticized
    a threshold similarly situated requirement in the context of
    traditional class-based equal protection claims. See State v.
    Hibler, 
    302 Neb. 325
    , 
    923 N.W.2d 398
    (2019) (Stacy, J., con-
    curring). In the class-of-one context, however, such a require-
    ment appears to be mandated by Olech.
    Before turning to Schaeffer’s allegations, we must elabo-
    rate on one of the required elements in a class-of-one equal
    protection claim—the requirement that the alleged discrimina-
    tory treatment was done intentionally. To say that an act must
    have been done “intentionally” could mean different things.
    In some legal contexts, an act is intentional if it is done with
    volition or with awareness of consequences. See, e.g., Keith
    N. Hylton, Intent in Tort Law, 44 Val. U.L. Rev. 1217 (2010).
    In the equal protection context, however, intent has a differ-
    ent meaning. In Personnel Administrator of Mass. v. Feeney,
    
    442 U.S. 256
    , 279, 
    99 S. Ct. 2282
    , 
    60 L. Ed. 2d 870
    (1979),
    the U.S. Supreme Court held in an equal protection case that
    discriminatory intent requires “more than intent as volition or
    intent as awareness of consequences. . . . It implies that the
    decisionmaker . . . selected or reaffirmed a particular course of
    action at least in part ‘because of,’ not merely ‘in spite of,’ its
    adverse effects upon an identifiable group.”
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    A number of courts have concluded that a plaintiff proceed-
    ing under a class-of-one equal protection theory must also
    show intentional discrimination in the sense that concept was
    understood in Feeney. For example, in SECSYS, LLC v. Vigil,
    
    666 F.3d 678
    (10th Cir. 2012), then-Judge Gorsuch authored
    an opinion in a case before the U.S. Court of Appeals for the
    10th Circuit, explaining that summary judgment was appro-
    priate on the plaintiff’s class-of-one claim because it could
    not prove that the defendants acted with discriminatory intent
    in the Feeney sense of that phrase. Other courts have also
    concluded that the Feeney definition of discriminatory intent
    applies in class-of-one claims. See, e.g., Integrity Collision
    Center v. City of Fulshear, 
    837 F.3d 581
    , 589 (5th Cir. 2016)
    (holding in class-of-one case that plaintiff must show discrimi-
    natory intent, i.e., that decision at issue was made “at least in
    part because of its discriminatory effect on [plaintiffs] rather
    than mere knowledge that adverse consequences will result”);
    Tuffendsam v. Dearborn County Bd. of Health, 
    385 F.3d 1124
    ,
    1127 (7th Cir. 2004) (citing 
    Feeney, supra
    , and explaining
    that defendants must have intentionally treated plaintiff worse
    “in the sense of wanting her to be made worse off than oth-
    ers”); Greco v. Senchak, 
    25 F. Supp. 3d 512
    , 519 (M.D. Pa.
    2014) (holding that in order for class-of-one plaintiff to prove
    intentional discrimination, it must be shown that “‘the deci-
    sionmaker selected or reaffirmed a particular course of action
    at least in part because of, not merely in spite of, its adverse
    effects’”); Pariseau v. City of Brockton, 
    135 F. Supp. 2d 257
    (D. Mass. 2001) (same).
    We agree that to prove the intentional discrimination ele-
    ment of a class-of-one claim, a plaintiff must prove discrimi-
    natory intent in the same manner that it must be proved in
    traditional class-based claims, i.e., that the defendant selected
    or reaffirmed a particular course of action because of its
    adverse effect and not merely with knowledge that effect
    would occur. This, of course, requires a slight modification
    in class-of-one claims. Because such claims do not allege that
    the defendant took action because of the plaintiff’s affiliation
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    with a particular class or group, the plaintiff must show that
    the defendant treated the plaintiff as it did because of who
    the plaintiff is. See SECSYS, 
    LLC, supra
    ; William D. Araiza,
    Flunking the Class-of-One/Failing Equal Protection, 55 Wm.
    & Mary L. Rev. 435, 455 (2013) (“[p]roperly harmonizing the
    ‘“because of”, not merely “in spite of ”’ formula [in] class-
    of-one claims should therefore require that the official have
    singled out the plaintiff because of who the plaintiff is—that is,
    because of her identity”) (emphasis omitted).
    We reach this conclusion for multiple reasons. First, apply-
    ing the same standard as used in traditional class-based
    equal protection claims is consistent with the U.S. Supreme
    Court’s observation that the “class-of-one theory [is] not so
    much a departure from” as it is “an application of” traditional
    equal protection principles. Engquist v. Oregon Dept. of
    Agriculture, 
    553 U.S. 591
    , 602, 
    128 S. Ct. 2146
    , 
    170 L. Ed. 2d
    975 (2008).
    Further, this understanding of the intentional discrimina-
    tion requirement prevents the class-of-one theory from making
    the reasonableness of nearly all governmental decisions at all
    levels potential matters of federal equal protection law. Ever
    since the U.S. Supreme Court decided Village of Willowbrook
    v. Olech, 
    528 U.S. 562
    , 
    120 S. Ct. 1073
    , 
    145 L. Ed. 2d 1060
    (2000), many courts have expressed concerns about the
    potential scope of the class-of-one theory. As one court put
    it, “unless carefully circumscribed, the concept of a class-of-
    one equal protection claim could effectively provide a federal
    cause of action for review of almost every executive and
    administrative decision made by state actors.” Jennings v. City
    of Stillwater, 
    383 F.3d 1199
    , 1210-11 (10th Cir. 2004). In a
    concurring opinion, Judge Posner of the U.S. Court of Appeals
    for the Seventh Circuit illustrated the concern regarding the
    scope of the class-of-one theory by asking whether it would
    require federal courts to review whether police officers acted
    rationally if they, as part of random enforcement efforts, tick-
    eted one driver for speeding when another driver going slightly
    faster on the same spot of highway moments earlier was not
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    pulled over. See Bell v. Duperrault, 
    367 F.3d 703
    (7th Cir.
    2004) (Posner, J., concurring).
    As explained in SECSYS, LLC v. Vigil, 
    666 F.3d 678
    (10th
    Cir. 2012), however, a requirement that a class-of-one plaintiff
    show discriminatory intent addresses this concern. Referring
    to Judge Posner’s highway speeders hypothetical, then-Judge
    Gorsuch explained that the requirement that the plaintiff
    prove the defendant took the action because it would have
    an adverse effect on the plaintiff forecloses any class-of-one
    claim because the hypothetical police officer is not ticketing
    the driver “because of who [the driver] is.”
    Id., 666
    F.3d at 690
    (emphasis in original).
    We recognize that some courts have held that a success-
    ful class-of-one claim requires proof that the defendant was
    motivated by “animus” toward the plaintiff. See, e.g., Hilton
    v. City of Wheeling, 
    209 F.3d 1005
    , 1008 (7th Cir. 2000);
    Patterson v. American Fork City, 
    67 P.3d 466
    (Utah 2003).
    See, also, 1 Ivan E. Bodensteiner & Rosalie Berger Levinson,
    State & Local Government Civil Rights Liability § 1:15 at
    1-1124 n.116 (2020) (collecting cases). Others point out that
    a defend­ant could act with discriminatory intent without har-
    boring a vindictive motive. See, e.g., SECSYS, 
    LLC, supra
    .
    While it seems unquestionable that a plaintiff could establish
    discriminatory intent by proving that the defendant was moti-
    vated by animus toward the plaintiff, it is not necessary for
    us to decide in this case whether discriminatory intent must
    be shown by proof of animus because, as we will explain,
    Schaeffer’s complaint fails to allege that DCS acted with any
    discriminatory intent.
    Schaeffer’s complaint does allege that DCS “intentionally”
    treated him differently than similarly situated inmates when
    it calculated his parole eligibility date. This conclusory asser-
    tion, however, is nothing more than a “threadbare recital[]
    of the elements of a cause of action,” which is not entitled
    to be accepted as true for purposes of a motion to dismiss.
    See Holloway v. State, 
    293 Neb. 12
    , 27, 
    875 N.W.2d 435
    ,
    448 (2016).
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    Conclusory assertions aside, Schaeffer does not allege any-
    thing suggesting that DCS calculated his parole eligibility
    date with discriminatory intent. Schaeffer’s complaint certainly
    alleges facts suggesting that DCS acted intentionally in the
    sense that its officials acted with volition and an awareness of
    consequences when it calculated Schaeffer’s parole eligibil-
    ity date. There are no factual allegations, however, suggesting
    that DCS calculated Schaeffer’s parole eligibility date as it did
    because doing so would be adverse to Schaeffer or because
    it wanted to single out Schaeffer for unequal treatment. No
    reason is offered, for example, for why DCS would alleg-
    edly treat Schaeffer differently than others similarly situated.
    Neither is anything alleged suggesting that DCS would have
    calculated the parole eligibility date differently if someone else
    were in Schaeffer’s shoes. See, SECSYS, 
    LLC, 666 F.3d at 690
    (explaining that to prove discriminatory intent, plaintiff must
    show defendant took action at issue “because of who [plaintiff]
    is”) (emphasis in original); William D. Araiza, Flunking the
    Class-of-One/Failing Equal Protection, 55 Wm. & Mary L.
    Rev. 435 (2013).
    For some courts, the absence of any allegations in a com-
    plaint suggesting that the defendants acted with discriminatory
    intent would alone be enough to conclude that the plaintiff
    failed to state a claim on a class-of-one equal protection theory.
    See, e.g., Greco v. Senchak, 
    25 F. Supp. 3d 512
    (M.D. Pa.
    2014); Pariseau v. City of Brockton, 
    135 F. Supp. 2d 257
    (D.
    Mass. 2001); Patterson v. American Fork 
    City, supra
    ; Lakeside
    Builders, Inc. v. Planning Bd. of Town of Franklin, 
    2002 WL 31655250
    (D. Mass. Mar. 21, 2002). Not only, however, has
    Schaeffer failed to plead facts suggesting that the defendants
    acted with discriminatory intent, the facts he has pleaded sug-
    gest they did not. This will require some elaboration, which we
    provide below.
    As part of his attempt to allege an equal protection viola-
    tion under a class-of-one theory, Schaeffer identifies nine
    other individuals he claims are similarly situated to him but
    who had their parole eligibility dates calculated differently.
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    Schaeffer alleges that the nine identified individuals are simi-
    larly situated because each of them, like him, received a life
    sentence from a Nebraska court which was later vacated under
    Miller v. Alabama, 
    567 U.S. 460
    , 
    132 S. Ct. 2455
    , 183 L.
    Ed. 2d 407 (2012), and each of them, like him, also received
    a sentence for other crimes prior to being resentenced as
    required by Miller.
    Upon closer scrutiny, however, it becomes clear that
    Schaeffer’s circumstances are more similar to some of his pro-
    posed comparators than others. Schaeffer alleges that Douglas
    Mantich, Christopher Garza, Johnny Ray, Jason Golka, Rodney
    Stewart, and Brian D. Smith were sentenced for other crimes
    at the time they were sentenced to imprisonment for life.
    Schaeffer, on the other hand, received his term of years sen-
    tences for assault in other proceedings in another district court
    years after he received his life sentence. In addition to this
    difference, the term of years sentences of Golka, Smith, and
    Luigi Grayer were initially ordered to be served concurrently
    to their life sentences, while Schaeffer’s were ordered to be
    served consecutively. Further, Schaeffer alleges that when both
    Stewart and Grayer were resentenced, the sentencing court
    ordered their new post-Miller sentence to run concurrently to
    their earlier term of years sentences, but he makes no such
    allegation about his own resentencing.
    Schaeffer’s circumstances more closely mirror two of his
    other proposed comparators, Ahmad Jackson and Justeen
    Williams. He alleges that they, like him, received a life sen-
    tence for a murder conviction and then later were convicted of
    other crimes and received term of years sentences that were
    ordered to be served consecutively to their life sentences. And,
    as it turns out, the two proposed comparators Schaeffer identi-
    fies as having their parole eligibility dates calculated under a
    good time law other than L.B. 191 are Jackson and Williams.
    Schaeffer alleges that DCS used 1997 Neb. Laws, L.B. 364,
    and 1992 Neb. Laws, L.B. 816, respectively, to calculate the
    parole eligibility dates of Jackson and Williams. According to
    Schaeffer’s allegations, DCS used the good time law in effect
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    at the time of Jackson’s subsequent term of years sentence in
    2004, L.B. 364, to calculate his parole eligibility date, just as
    it used the good time law in effect at the time of Schaeffer’s
    term of years sentences for assault, L.B. 567, to calculate his
    parole eligibility date. While Schaeffer alleges DCS used L.B.
    816 to calculate Williams’ parole eligibility date, his complaint
    fails to allege when Williams was sentenced for assault on a
    confined person.
    DCS’ use of good time laws other than L.B. 191 to calculate
    the parole eligibility dates of Schaeffer, Jackson, and Williams
    indicates that it is not using L.B. 567 to calculate Schaeffer’s
    parole eligibility date because of who Schaeffer is or because it
    wishes to single him out for unequal treatment. Rather, it sug-
    gests that DCS believes that inmates like Schaeffer, Jackson,
    and Williams, who after receiving a life sentence received a
    term of years sentence ordered to be served consecutively to
    the life sentence, are to have their parole eligibility date calcu-
    lated using the good time law in effect at the time of their term
    of years sentence.
    Schaeffer, as we have noted, contends that DCS’ under-
    standing of how parole eligibility is to be calculated under
    state law is incorrect. But even if Schaeffer is right about that,
    it does not follow that he has alleged an equal protection vio-
    lation. See Snowden v. Hughes, 
    321 U.S. 1
    , 8, 
    64 S. Ct. 397
    ,
    
    88 L. Ed. 497
    (1944) (“not every denial of a right conferred
    by state law involves a denial of the equal protection of the
    laws”). In fact, in this context, if DCS is acting pursuant to
    an understanding of what state law requires, even if mistaken,
    that undermines rather than supports the notion that it is act-
    ing with the requisite discriminatory intent. See Hu v. City of
    New York, 
    927 F.3d 81
    , 94 (2d Cir. 2019) (requiring plaintiff
    alleging class-of-one equal protection claim to “‘exclude the
    possibility that the defendant acted on the basis of a mis-
    take’”). Because we conclude that Schaeffer has not alleged
    facts suggesting that DCS acted with discriminatory intent, we
    find that he has failed to plead a plausible class-of-one equal
    protection claim.
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    Returning briefly to the subject of state law, we note in
    closing that we have not determined whether DCS has cor-
    rectly calculated Schaeffer’s parole eligibility date under state
    law. At oral argument, Schaeffer’s counsel made clear that his
    complaint did not seek a determination as to the correct cal-
    culation of Schaeffer’s parole eligibility date under state law.
    And we have been able to determine that Schaeffer has failed
    to adequately allege any federal constitutional claims without
    deciding that issue.
    CONCLUSION
    Because we find that Schaeffer has failed to adequately
    allege that DCS violated his federal constitutional rights in any
    respect, we find that the district court did not err in dismissing
    his complaint for failure to state a claim and thus affirm.
    Affirmed.
    Freudenberg, J., not participating.