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Russell v. Cherry1/28/2003
sherwood, 264 Neb. 985, 653 N.W.2d 821 (2002), we have a substantive ruling with a procedural "effect," we find that the purpose of the overruling decision can be adequately effectuated without giving the "procedural" component of the ruling retroactive operation in the instant case where the demurrer was filed 5 years before Cole was decided. The gravamen of the Cole ruling is that failure to exhaust administrative remedies does not deprive the district court of jurisdiction. However, even now, if a defendant asserts the failure as an "affirmative defense," the court may dismiss the case. This is the same pre-Cole result, although before Cole, the "defense" was jurisdictional and thus could be raised in a demurrer.
We recognize that our analysis appears to apply Cole retroactively with regard to the PLRA but not with regard to the STCA. Under both the pre-Cole STCA and the pre-Cole PLRA, failure to exhaust administrative remedies deprived the court of subject matter jurisdiction. The defendants raised this defense, with regard to the PLRA, in various summary judgment motions; thus the defense under the PLRA was properly raised irrespective of the Cole holding.
At the time of the defendants' demurrer, Russell had not "pre-filed" as required by the STCA, and such failure was raised by a procedure which was then proper, i.e., a demurrer. The court dismissed the STCA claims for failure to state claims against any defendants. We do not know if the court intended to reference the failure to "pre-file" under STCA by this ruling, but we ultimately find that dismissal was proper because of the failure to "pre-file" and that such failure was properly raised when the demurrer was filed December 1, 1997.
CONCLUSION
Russell brought claims only under the STCA, the Eighth Amendment to the U.S. Constitution, and ยง 1983. Because he followed none of the exhaustion requirements for filing suit on these claims, we dismiss Russell's appeal.
Appeal dismissed.
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