Gray v. Neb. Dep't of Corr. Servs.

922 N.W.2d 234, 26 Neb. Ct. App. 660
CourtNebraska Court of Appeals
DecidedDecember 4, 2018
DocketNo. A-17-1319.
StatusPublished
Cited by2 cases

This text of 922 N.W.2d 234 (Gray v. Neb. Dep't of Corr. Servs.) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Neb. Dep't of Corr. Servs., 922 N.W.2d 234, 26 Neb. Ct. App. 660 (Neb. Ct. App. 2018).

Opinion

Riedmann, Judge.

*661INTRODUCTION

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 regulation No. 116.01 (AR 116.01)

*237and 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 provisions 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 provisions 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 *662and that indigent inmates are required to cover their photocopy 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, alleging 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 estimated 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.

*663STANDARD OF REVIEW

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.

*238Neb. 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 public .... For purposes of the act, every standard which prescribes a penalty shall be presumed to have general applicability.

§ 84-901.

*664Although 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 subsections 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), 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 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.

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Related

Gray v. Nebraska Dept. of Corr. Servs.
26 Neb. Ct. App. 660 (Nebraska Court of Appeals, 2018)

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Bluebook (online)
922 N.W.2d 234, 26 Neb. Ct. App. 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-neb-dept-of-corr-servs-nebctapp-2018.