Abdullah v. Nebraska Department of Correctional Services

517 N.W.2d 108, 246 Neb. 109, 1994 Neb. LEXIS 138
Nebraska Supreme Court·Decided June 10, 1994·No. No. S-92-512·Published·Cited by 2 cases

Opinion

Hastings, C.J.

Shakur Abdullah, plaintiff, appeals from the judgment of the district court which, on his petition for declaratory judgment, denied his claim that a portion of the adult inmate classification manual of the Department of Correctional Services is unconstitutional. Abdullah assigns as error (1) the district court’s finding that the nonpromulgation of the particular rule pursuant to Neb. Rev. Stat. § 84-901 et seq. (Reissue 1987 & Cum. Supp. 1992) was not an issue in the action and (2) the finding that Abdullah’s automatic 3-year waiting period before he could become eligible for a custody change under the adult inmate classification manual did not violate the Due Process and Equal Protection Clauses of the federal or state Constitutions. We affirm.

When a declaratory judgment action presents questions of law, an appellate court has an obligation to reach its conclusion independent from the conclusion reached by the trial court with regard to those questions. How v. Mars, 245 Neb. 420, 513 N.W.2d 511 (1994); National Am. Ins. Co. v. Continental Western Ins. Co., 243 Neb. 766, 502 N.W.2d 817 (1993).

Plaintiff Abdullah is an inmate of the Nebraska State Penitentiary currently serving a life sentence for first degree murder and a concurrent sentence of 15 to 50 years for shooting to kill or maim. See State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). Abdullah testified that he was in maximum custody from 1975, when he entered the penitentiary, until 1983. Sometime during 1983, a new custody classification program was adopted which allowed his custody to be reduced to medium, and eventually, minimum custody. However, in 1985 the classification system was again revamped, and, according to Abdullah, minimum custody was summarily taken away from anyone in that classification. At that time, he was placed [111]*111in medium custody. During his incarceration, Abdullah has received several misconduct reports. The most recent report prior to this action was received on March 21,1991.

On May 10, 1991, Abdullah’s request for promotion to minimum custody was denied by the acting unit administrator, due to disciplinary reports received during the past 3 years. Abdullah appealed that decision as a “step one” grievance to chief executive officer and superintendent Howard Ferguson, who denied the appeal on May 23. Abdullah filed a “step two” grievance to the director of the Department of Correctional Services, Harold Clarke. The step two appeal was denied on June 5 by Clarke, who noted in his response that Abdullah had not stated any reason for his appeal.

For the purposes of inmate classification and assignments, the adult inmate classification manual provides:

1. LIFE TO LIFE (Class IA felony)
Inmates serving a life sentence for a Class IA felony, in which the minimum sentence is also life, shall not be eligible for consideration for promotion to minimum custody until they have served at least ten (10) calendar years; and shall not be eligible for consideration for promotion to community custody until they have been granted a sentence commutation to a definite term of years by the Board of Pardons. Inmates shall be free of misconduct for the immediate past three (3) years to be considered for promotion to minimum or community custody grades.

Clarke testified that the overriding purpose of the classification system is, first, to protect the public, and also to facilitate rehabilitation, protect offenders, and aid in management of the department. He also explained that the reason for the requirement that a life-to-life inmate remain misconduct-free for 3 years prior to promotion is that it is the position of the department that those inmates are more dangerous individuals, and they are therefore expected to adhere to more stringent standards.

In determining whether an inmate may have a change in custody, an objective factoring system is employed, which evaluates issues such as the nature of the offender’s crime, the [112]*112amount of time that a person might be serving, and the offender’s adjustment within the facility.

The State alleged a lack of jurisdiction over this action, both by demurrer and answer in the trial court. Those defenses were denied. The district court found that Abdullah had failed to sustain his burden of proving that the contested rule regarding reclassification of inmates serving life-to-life sentences is invalid or unconstitutional and ordered his petition dismissed. Abdullah has appealed; the State has not cross-appealed.

Abdullah first asserts that the district court erred in finding that the nonpromulgation of the rule pursuant to § 84-901 et seq. was not an issue in the action. Abdullah’s petition states only that “[t]he Defendants are currently executing an unpromulgated rule and or policy” (emphasis omitted) and goes on to assert that the rule is in violation of his equal protection rights. It does not allege that the rule should have been promulgated pursuant to § 84-901 et seq. or that the agency exceeded its statutory authority. The district court thus did not receive evidence or rule on the issue of promulgation of the adult inmate classification system; therefore, the issue is not properly before this court.

A party will not be permitted to plead one cause of action and upon trial rely upon proof establishing another. Barker v. Wrehe, 217 Neb. 793, 351 N.W.2d 412 (1984).

Proof must correspond with the allegations in the pleadings, and relief cannot be granted upon proof of a cause substantially different from the case made in the pleadings. Id.; Badran v. Bertrand, 210 Neb. 747, 316 N.W.2d 763 (1981).

Issues not properly presented to and passed upon by a trial court may not be raised on appeal. In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992); K & K Farming v. Federal Intermediate Credit Bank, 237 Neb. 846, 468 N.W.2d 99 (1991).

As his second assignment of error, Abdullah asserts that the district court erred in finding that the appellees’ automatic 3-year waiting period before Abdullah could become eligible for a custody change did not violate the Due Process and Equal Protection Clauses of the federal or state Constitutions. Abdullah alleges in his brief that there is a “great dissimilar treatment of residents as to when [a] misconduct report [113]*113(major/minor) will clear allowing them to become eligible for a custody change.” Brief for appellant at 10. He further argues that

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Abdullah v. Nebraska Department of Correctional Services, 517 N.W.2d 108, 246 Neb. 109, 1994 Neb. LEXIS 138 (Neb. 1994).

517 N.W.2d 108 (Abdullah v. Nebraska Department of Correctional Services) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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