Gray v. Nebraska Dept. of Corr. Servs. ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/04/2018 08:10 AM CST
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660Graylin Gray, appellant, v. Nebraska
Department of Correctional
Services, appellee.
___ N.W.2d ___
Filed December 4, 2018. No. A-17-1319.
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. Administrative Law. The filing requirements of the Administrative
Procedure Act apply to the Department of Correctional Services rules
and regulations.
3. Statutes. Specific statutory provisions relating to a particular subject
control over general statutory provisions.
4. Administrative Law: Prisoners. Neb. Rev. Stat. §§ 83-4,109 to
83-4,123 (Reissue 2014 & Cum. Supp. 2016) constitute a special act
relating to disciplinary procedures in adult correctional institutions
and control over the more general provisions which are found in the
Administrative Procedure Act.
5. 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.
6. Motions to Dismiss: Pleadings. For purposes of a motion to dismiss,
a trial court generally must ignore materials outside the pleadings, but
it may consider some materials that are part of the public record or do
not contradict the complaint, as well as materials that are necessarily
embraced by the pleadings.
7. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660Appeal from the District Court for Lancaster County: Kevin
R. McM anaman, Judge. Affirmed.
Graylin Gray, pro se.
Douglas J. Peterson, Attorney General, and James D. Smith,
Solicitor General, for appellee.
Pirtle, R iedmann, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Graylin Gray appeals the order of the district court for
Lancaster County which dismissed his declaratory judgment
action. Finding no merit to the arguments raised on appeal,
we affirm.
BACKGROUND
Gray is an inmate with the Nebraska Department of
Correctional Services (Department) housed at the Tecumseh
State Correctional Institution. On August 3, 2017, he filed a
complaint in the Lancaster County District Court seeking a
declaratory judgment that the Department’s administrative reg-
ulation No. 116.01 (AR 116.01) and No. 217.01 (AR 217.01)
were invalid because they were not properly promulgated and
filed with the Secretary of State in accordance with the provi-
sions of the Administrative Procedure Act (APA).
Each of the regulations is several pages in length, but in the
complaint, Gray specifically cites five subsections. AR 116.01
is entitled “Inmate Rights” and states that its purpose is to
provide guidelines that will ensure the individuals who are
committed to the Department are accorded and advised of
basic rights. Within AR 116.01, Gray refers to those provi-
sions regarding inmate access to mail services, which require
that indigent inmates who exhaust their five free mailings per
month are required to issue a check to cover postage costs
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660and that indigent inmates are required to cover their photo-
copy costs.
AR 217.01 is entitled “Inmate Rules and Discipline” and
states that its purpose is to provide a written set of rules
governing inmate conduct, establish penalties for violation of
such rules, and establish disciplinary procedures. Gray cites to
those sections in AR 217.01 that detail infractions committed
by inmates and a corresponding loss of good time credit.
The Department filed a motion to dismiss the action, alleg-
ing that the complaint failed to state a claim upon which relief
could be granted. Gray also filed several discovery motions
and a motion seeking reimbursement from the Department
for his photocopying and postage expenses, which he esti-
mated totaled $2,500. In response to Gray’s discovery motions,
which included subpoenas for certain government officials, the
Department filed a motion to quash subpoenas and a motion to
stay discovery.
After holding a hearing on all of the pending motions, the
district court found that the regulations challenged by Gray
were not required to be promulgated pursuant to the APA
because they fall within the internal document exception of
Neb. Rev. Stat. § 84-901(2) (Cum. Supp. 2016). The court
therefore granted the Department’s motion to dismiss. The
court also concluded that as a result of its decision to dismiss
the action, the motions to stay discovery and quash subpoenas
were moot, and it denied Gray’s motion for reimbursement of
costs. Gray appeals.
ASSIGNMENTS OF ERROR
Gray assigns that the district court erred in (1) granting the
Department’s motion to dismiss, (2) finding that the motions
to stay discovery and quash subpoenas were moot, and (3)
denying his motion for reimbursement of photocopying and
postage costs.
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660STANDARD 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. Amend v. Nebraska Pub. Serv.
Comm., 298 Neb. 617, 905 N.W.2d 551 (2018).
ANALYSIS
Motion to Dismiss.
Gray argues that the district court erred in granting the
Department’s motion to dismiss because the court erroneously
concluded that the regulations at issue did not come within the
APA definition of rule or regulation. We find that the district
court properly granted the motion to dismiss for the reasons
set forth below.
Under the APA, each agency shall file in the office of the
Secretary of State a certified copy of the rules and regulations
in force and effect in such agency. Neb. Rev. Stat. § 84-902(Cum. Supp. 2016). No rule or regulation of any agency shall
be valid as against any person until 5 days after it has been
filed. Neb. Rev. Stat. § 84-906 (Cum. Supp. 2016). Relevant to
Gray’s argument, the APA provides:
(2) Rule or regulation shall mean any standard of
general application adopted by an agency in accordance
with the authority conferred by statute and includes,
but is not limited to, the amendment or repeal of a rule
or regulation. Rule or regulation shall not include (a)
internal procedural documents which provide guidance
to staff on agency organization and operations, lacking
the force of law, and not relied upon to bind the pub-
lic . . . . For purposes of the act, every standard which
prescribes a penalty shall be presumed to have general
applicability.
§ 84-901.
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660Although Gray identifies five particular subparts contained
in AR 116.01 and AR 217.01, the action he sought in the
district court was an order declaring both regulations invalid.
We therefore do not limit our analysis to the particular subsec-
tions Gray identifies, but, rather, address each regulation in
its entirety.
Gray argues that AR 116.01 governs basic rights of the
inmates and therefore is a regulation within the meaning of
§ 84-901(2). He further claims AR 116.01 was adopted under
the authority granted in Neb. Rev. Stat. § 83-4,111 (Reissue
2014), which authorizes the Department to adopt rules and
regulations to establish criteria for determining which rights
an inmate forfeits upon commitment and which rights an
inmate retains. However, pursuant to § 84-901(2)(a), inter-
nal procedural documents which provide guidance to staff
on agency organization and operations, lacking the force of
law, and not relied upon to bind the public are excluded from
the statutory definition of rule or regulation. Our review of
AR 116.01 reveals that the regulation articulates the rights
of inmates but does not curtail them. Rather, AR 116.01
specifically provides that its purpose is to “provide guide-
lines that will ensure the individuals who are committed to
the [Department] are accorded and advised of basic rights.”
AR 116.01 then provides guidance to staff as an internal pro-
cedural document.
For example, the provisions of AR 116.01 to which Gray
directs us require inmates to pay the cost of postage over five
pieces of mail per month and the cost of photocopying. We
find that no basic right is affected by these provisions and that
they merely provide guidance to staff as an internal procedural
document. Therefore, the district court was correct in deter-
mining that AR 116.01 was not a rule or regulation which was
required to be filed.
Gray argues that AR 217.01 comes within the meaning of
rule or regulation because it prescribes a penalty. He relies
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660upon McAllister v. Nebraska Dept. of Corr. Servs., 253 Neb.
910, 573 N.W.2d 143 (1998), where the Nebraska Supreme
Court addressed whether a particular departmental regulation
fit within the APA definition of rule or regulation. There, the
plaintiff was a departmental employee whose employment had
been terminated pursuant to a regulation regarding employee
discipline. The plaintiff alleged that the regulation prescribed a
penalty and was therefore a rule or regulation within the mean-
ing of the APA. And because the regulation had not been filed
with the Secretary of State, he claimed that it was invalid. The
Supreme Court agreed.
We find that McAllister is distinguishable from the case at
hand because McAllister did not involve disciplinary procedures
of inmates. Admittedly, § 83-4,111 requires the Department to
adopt certain rules and regulations. Specifically, § 83-4,111
requires:
(1) The department shall adopt and promulgate rules
and regulations to establish criteria for justifiably and
reasonably determining which rights and privileges an
inmate forfeits upon commitment and which rights and
privileges an inmate retains.
(2) Such rules and regulations shall include, but not
be limited to, criteria concerning (a) disciplinary proce-
dures and a code of offenses for which discipline may
be imposed, (b) disciplinary segregation, (c) grievance
procedures, (d) good-time credit, (e) mail and visiting
privileges, and (f) rehabilitation opportunities.
[2] Neb. Rev. Stat. § 83-4,112 (Reissue 2014) further
requires that “[c]opies of all rules and regulations shall be
filed pursuant to the [APA] and shall be distributed to all adult
correctional facilities in this state.” Thus, the filing require-
ments of the APA apply to the Department’s rules and regula-
tions. However, the Department complied with these statutes
as demonstrated by 68 Neb. Admin. Code, ch. 5 (2008),
entitled “Code of Offenses,” and ch. 6 (2017), entitled “Inmate
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660Disciplinary Procedures.” Specifically, 68 Neb. Admin. Code,
ch. 6, § 007 (2017), sets forth the rules and regulations for the
establishment of disciplinary committees to hold hearings on
inmate misconduct reports.
AR 217.01, on the other hand, provides the specific proce-
dures that are to occur in the handling of misconduct reports,
including hearings before the disciplinary committees. The
authority of the director of the Department to establish such
procedures is found in Neb. Rev. Stat. §§ 83-4,109 to 83-4,123
(Reissue 2014 & Cum. Supp. 2016). Section 83-4,109 pro-
vides specifically: “Disciplinary procedures in adult institu-
tions administered by the Department . . . shall be governed by
the provisions of sections 83-4,109 to 83-4,123.”
[3,4] Addressing the interplay between the APA and
§§ 83-4,109 to 83-4,123, the Supreme Court has stated that
the general principle that specific statutory provisions relating
to a particular subject control over general statutory provisions
is applicable. See Reed v. Parratt, 207 Neb. 796, 301 N.W.2d
343 (1981). The Supreme Court determined that §§ 83-4,109
to 83-4,123 constitute a special act relating to disciplinary pro-
cedures in adult correctional institutions and control over the
more general provisions which are found in the APA. Reed v.
Parratt, supra.As applicable to Gray’s assertion that AR 217.01 was a
regulation that required compliance with the APA, we note
§ 83-4,115, which states that the “director shall establish
procedures to review the disciplinary actions of inmates. The
director may establish one or more administrative review
boards within the department to review disciplinary actions.”
This is exactly what is accomplished through AR 217.01.
Because AR 217.01 establishes the internal procedures appli-
cable to the review of disciplinary actions of inmates, the
filing requirements of the APA are inapplicable and the
district court correctly granted the Department’s motion
to dismiss.
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660Discovery Motions.
Gray also asserts that the district court erroneously con-
cluded that the motions to stay discovery and quash subpoenas
were moot. We disagree.
[5] 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. Nesbitt
v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018). 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. Id. 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. Id.[6] Because a motion pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(6) tests the legal sufficiency of the complaint,
not the claim’s substantive merits, a court may typically look
only at the face of the complaint to decide a motion to dis-
miss. DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d
490 (2013). For purposes of a motion to dismiss, a trial court
generally must ignore materials outside the pleadings, but it
may consider some materials that are part of the public record
or do not contradict the complaint, as well as materials that are
necessarily embraced by the pleadings. Id. These documents
embraced by the complaint are not considered matters outside
the pleading. Id.Here, after considering the complaint and the language
of AR 116.01 and AR 217.01, the district court granted the
motion to dismiss, a decision we have concluded was not in
error. Because the court could not consider matters outside of
the pleadings, the completion of any discovery regarding the
merits of the complaint would not change the outcome. And
once the court dismissed the case, any issues that would have
been addressed during discovery ceased to exist. Accordingly,
the district court did not err in finding that the motions
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 26 Neb. App. 660related to discovery were moot once it granted the motion
to dismiss.
Motion for Reimbursement of Costs.
[7] Gray assigns as error the court’s denial of his motion for
reimbursement of photocopying and postage costs. The alleged
error is not argued in his brief, however. An alleged error must
be both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
appellate court. Cain v. Custer Cty. Bd. of Equal., 291 Neb.
730, 868 N.W.2d 334 (2015). Accordingly, we do not address
this issue.
CONCLUSION
We find no merit to the arguments raised on appeal and
therefore affirm the decision of the district court.
A ffirmed.