Haynes v. Nebraska Dept. of Corr. Servs. , 314 Neb. 771 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771Jamar L. Haynes, appellant, v.
Nebraska Department of
Correctional Services, appellee.
___ N.W.2d ___
Filed July 21, 2023. No. S-22-754.
1. Appeal and Error. Where the assignments of error consist of headings
or subparts of arguments and are not within a designated assignments of
error section, an appellate court may proceed as though the party failed
to file a brief, providing no review at all, or, alternatively, may examine
the proceedings for plain error.
2. ____. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or fairness of the judicial process.
3. Jurisdiction: Statutes. Subject matter jurisdiction and regulatory inter-
pretation present questions of law.
4. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
5. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
6. Jurisdiction: Affidavits: Fees: Appeal and Error. A poverty affidavit
serves as a substitute for the docket fee otherwise required upon appeal,
and an in forma pauperis appeal is perfected when the appellant timely
files a notice of appeal and a proper affidavit of poverty.
7. Jurisdiction: Affidavits: Appeal and Error. Although jurisdiction is
vested in an appellate court upon timely filing of a notice of appeal and
an affidavit of poverty, some duties are still required of the lower court.
Under Neb. Rev. Stat. § 25-2301.02 (Reissue 2016), the lower court
retains jurisdiction to determine the validity of the affidavit.
8. Administrative Law: Statutes. Properly adopted and filed agency regu-
lations have the effect of statutory law.
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 7719. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
10. Evidence: Words and Phrases. Substantial evidence is evidence which
a reasoning mind would accept as sufficient to support a particular con-
clusion and consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Jamar L. Haynes, pro se.
Michael T. Hilgers, Attorney General, and Timothy M.
Young for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Funke, J.
INTRODUCTION
An inmate, sanctioned for drug use while in prison, filed
a petition seeking judicial review of the disciplinary sanc-
tion. Upon review, the district court upheld the decision of the
Nebraska Department of Correctional Services Appeals Board
(Appeals Board), which upheld the decision of the Institutional
Disciplinary Committee (IDC). The inmate appeals. Having
elected to review for plain error and finding none, we affirm.
BACKGROUND
Jamar L. Haynes is an inmate incarcerated under the care and
custody of the Nebraska Department of Correctional Services
(NDCS). At all relevant times, Haynes occupied cell 2C14,
along with his cellmate.
On February 27, 2022, Cpl. Christine Stulken observed that
the cell-door window of cell 2C14 was covered and smelled a
“burning smell” coming from inside the cell. Stulken ordered
Haynes and Haynes’ cellmate to remove the covering. Once
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771the covering was removed, Stulken observed potential drug
paraphernalia on the cell’s table. Stulken reported the incident,
and Cpl. Seth Fosket entered and searched cell 2C14.
Fosket observed Haynes and his cellmate seated at the table.
Fosket also observed materials that, based on his experience
as a corrections officer, suggested drug use. The materials
included “pieces of wire unsheathed and bent into shapes that
are used for lighting smoking papers,” toilet paper ripped into
small pieces, and multiple batteries in cups on the table. Both
Haynes and his cellmate had red eyes, were lethargic, and
were slow to respond to questions. Both slurred their speech.
Haynes had orange marks on his left-hand pointer finger and
thumb. Based on his observations and his experience as a cor-
rections officer, Fosket concluded that both Haynes and his
cellmate were impaired. Fosket described his observations in a
misconduct report.
As relevant to this appeal, Haynes was issued a misconduct
charge for “Drug or Intoxicant Abuse” in violation of an NDCS
rule, which we will refer to as “Rule 5-1-H.” 1 On March 8,
2022, Haynes submitted a written request to be drug tested.
Haynes was never drug tested in connection with the incident
or misconduct charge.
Procedural History
On March 18, 2022, the IDC held a hearing on the miscon-
duct charge. The IDC considered Fosket’s misconduct report,
Stulken’s incident report, and Haynes’ request that he be drug
tested. Haynes testified that only his cellmate was impaired
on February 27 and submitted a statement from his cellmate
claiming full responsibility for the misconduct and contraband
items. Haynes also argued that he appeared “lethargic” on
February 27 because he had been asleep and was woken up.
Fosket testified that in his experience as a corrections officer,
both Haynes and his cellmate were impaired on February 27.
1
See 68 Neb. Admin. Code, ch. 5, § 005 I[H] (2023).
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771The IDC found that Haynes had violated Rule 5-1-H on
the following basis: “[Haynes] was under the influence due to
[Fosket’s] correctional experience because inmate was lethar-
gic, slow to respond to questions, slurred speech, had red eyes,
and orange marks on his left-hand pointer finger and thumb”
as stated in the misconduct report prepared by Fosket. The IDC
imposed sanctions of 30 days’ room restriction and 30 days’
loss of good time credit.
Haynes appealed to the Appeals Board. The Appeals Board
upheld the IDC’s decision, explaining that drug testing was
not required for the offense, substantial evidence had been
presented to the IDC proving Haynes had violated Rule 5-1-H,
and procedural due process had been afforded.
Haynes subsequently filed, in the district court for Lancaster
County, Nebraska, a petition for judicial review of the Appeals
Board’s decision pursuant to the Administrative Procedure Act.
Haynes argued that the Appeals Board had erred in uphold-
ing the IDC’s decision to deny his request for drug testing.
Haynes also argued that Fosket’s statements as to Haynes’ state
of impairment were inadmissible and that, absent those state-
ments, the IDC lacked substantial evidence to support a finding
that Haynes violated Rule 5-1-H.
On September 22, 2022, the district court entered an order
concluding that neither of Haynes’ arguments had merit and
that the Appeals Board had not erred in upholding the IDC’s
decision. Specifically, the district court concluded that “68
Neb. Admin. Code, ch. 9, § 009.01,” now renumbered as
68 Neb. Admin. Code, ch. 6, § 008.01 (2023), did not entitle
Haynes to a drug test. 2 The court also concluded that the IDC’s
finding that Haynes had violated Rule 5-1-H was supported by
substantial evidence.
Appellate Jurisdiction
On October 6, 2022, Haynes filed a notice of appeal of
the court’s September 22 order, as well as a motion and
2
See, also, Neb. Rev. Stat. § 83-4,114.02 (Reissue 2014).
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771affidavit for leave to proceed in forma pauperis. On October
18, the court entered an order deferring ruling on Haynes’
motion. The court explained that Haynes’ affidavit and appli-
cation were not accompanied by a certified copy of his inmate
account. The court warned that if Haynes did not file the docu-
ment within 30 days, his motion to proceed in forma pauperis
would be denied and the case would be dismissed. The record
does not show how this matter was resolved.
ASSIGNMENTS OF ERROR
Haynes’ brief contains no designated assignments of error
section. Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2022)
requires an appellant’s brief to include, under the appropriate
heading, “[a] separate, concise statement of each error a party
contends was made by the trial court, together with the issues
pertaining to the assignments of error.” The rule specifies that
“[e]ach assignment of error shall be separately numbered and
paragraphed.” The rule cautions that “[c]onsideration of the
case will be limited to errors assigned and discussed in the
brief,” but that “[t]he court may, at its option, notice a plain
error not assigned.”
[1] Haynes’ brief contains headings in the argument section
which allege error by the trial court, but argument headings are
insufficient. 3 Where the assignments of error consist of head-
ings or subparts of arguments and are not within a designated
assignments of error section, an appellate court may proceed
as though the party failed to file a brief, providing no review
at all, or, alternatively, may examine the proceedings for plain
error. 4 Here, we will review for plain error.
STANDARD OF REVIEW
[2] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result
3
Cf. County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d
612 (2023).
4
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771in damage to the integrity, reputation, or fairness of the judi-
cial process. 5
[3,4] Subject matter jurisdiction and regulatory interpreta-
tion present questions of law. 6 An appellate court indepen-
dently reviews questions of law decided by a lower court. 7
ANALYSIS
Jurisdiction
[5] NDCS argues that appellate jurisdiction is absent or
uncertain. It is the power and duty of an appellate court to
determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties. 8
Because of that duty, we consider NDCS’ arguments related to
jurisdiction, even though we are otherwise limited to a review
for plain error.
[6] Neb. Rev. Stat. § 84-918 (Reissue 2014) provides that
an aggrieved party may secure a review of any judgment
rendered or final order made by the district court under the
Administrative Procedure Act by appeal to the Nebraska Court
of Appeals and that the appeal shall be taken in the manner
provided by law for appeals in civil cases. Neb. Rev. Stat.
§ 25-1912 (Cum. Supp. 2022) generally provides that a civil
appeal may be taken by filing a notice of appeal and depositing
the required docket fee with the clerk of the district court. We
have noted that a poverty affidavit serves as a substitute for
the docket fee otherwise required upon appeal and that an in
forma pauperis appeal is perfected when the appellant timely
files a notice of appeal and a proper affidavit of poverty. 9
5
Id.6
See id. and Leon V. v. Nebraska Dept. of Health & Human Servs., 302
Neb. 81, 921 N.W.2d 584 (2019).
7
County of Lancaster, supra note 3.
8
Id.9
See, e.g., State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015), and State
v. Ruffin, 280 Neb. 611, 789 N.W.2d 19 (2010).
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771This is true even where the record contains no order from the
district court granting the appellant’s request to proceed in
forma pauperis. 10
In In re Interest of N.L.B., 11 the appellant had filed both a
notice of appeal and a poverty affidavit within the time pre-
scribed by statute. However, the trial court did not enter an
order authorizing the appellant to proceed in forma pauperis
within 30 days. 12 The appellee claimed that in addition to filing
a poverty affidavit, the party appealing must also obtain autho-
rization from the trial court to proceed in forma pauperis. 13 We
rejected this argument, explaining:
[A]lthough it may be customary and a mark of prudence
for an appellant to obtain authorization of the trial court
in order to forestall any finding of a lack of good faith
and possible dismissal of the appeal, contrary to appel-
lee’s assertion, there is no statutory requirement that such
authorization be obtained in order to make the affida-
vit effective. 14
Accordingly, we held, based on the statute in effect at the time,
that this court obtained jurisdiction when a party filed a notice
of appeal and an affidavit of poverty. 15
In State v. Jones, 16 the appellee argued that this court lacked
jurisdiction over an appeal. The appellant had timely filed
a notice of appeal and a proper in forma pauperis applica-
tion and affidavit. 17 However, the record contained no order
10
See State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002). See, also, In re
Interest of N.L.B., 234 Neb. 280, 450 N.W.2d 676 (1990).
11
In re Interest of N.L.B., supra note 10.
12
Id.
13
Id.
14
Id. at 282, 450 N.W.2d at 679.
15
Id.16
Jones, supra note 10.
17
Id.- 778 -
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771granting or denying the appellant’s in forma pauperis request. 18
Referencing our analysis in In re Interest of N.L.B., we con-
cluded that this court had jurisdiction over the appeal. 19
Like in Jones, the record here includes no order granting
or denying Haynes’ in forma pauperis request. However, the
record does include Haynes’ notice of appeal and an affidavit
of poverty filed October 6, 2022. For this reason, we con-
clude that appellate jurisdiction vested over Haynes’ appeal on
October 6, 2022.
[7] Although jurisdiction is vested in an appellate court upon
timely filing of a notice of appeal and an affidavit of poverty,
some duties are still required of the lower court. 20 Under
Neb. Rev. Stat. § 25-2301.02 (Reissue 2016), the lower court
retains jurisdiction to determine the validity of the affidavit. 21
Section 25-2301.02(1) provides that an application to proceed
in forma pauperis shall be granted unless there is an objection
that the party filing the application (a) has sufficient funds to
pay costs, fees, or security or (b) is asserting legal positions
which are frivolous or malicious. Section 25-2301.02(1) also
provides that the objection to the application shall be made
within 30 days after the filing of the application or at any time
if the ground for the objection is that the initial application
was fraudulent. Such an objection may be made by the court
on its own motion or on the motion of any interested person
under § 25-2301.02(1).
On October 18, 2022, the district court entered its order
deferring ruling on Haynes’ in forma pauperis application
due to the lack of a certified copy of his inmate account. The
court gave Haynes 30 days to submit the missing information
18
Id.
19
Id.
20
See, In re Interest of Noelle F. & Sarah F., 249 Neb. 628, 544 N.W.2d 509(1996); Young v. Zobrist, No. A-20-796, 2021 WL 2201595 (Neb. App.
June 1, 2021) (selected for posting to court website).
21
See id.- 779 -
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771or his motion to proceed in forma pauperis would be denied
and the case would be dismissed. Though the district court
had the statutory authority to grant or deny Haynes’ in forma
pauperis application, we are unaware of any authority the
district court had to dismiss Haynes’ appeal. With that being
said, by not ruling on the application, the district court func-
tionally abandoned its statutory duty to determine the valid-
ity of Haynes’ affidavit. Such abandonment does not divest
this court of jurisdiction. 22 Accordingly, Haynes’ timely filed
notice of appeal and application and affidavit to proceed in
forma pauperis were sufficient to perfect his appeal. 23
Plain Error Review
Having concluded that this court has jurisdiction over
Haynes’ appeal, we proceed to the merits. The district court
concluded that “68 Neb. Admin. Code, ch. 9, § 009.01,” now
renumbered as 68 Neb. Admin. Code, ch. 6, § 008.01 (2023),
did not entitle Haynes to a drug test. Section 008.01 provides:
Before an inmate can be disciplined for a drug or alcohol
violation, the inmate may request and NDCS shall pro-
vide independent confirmation testing of positive results
of urinalysis testing. If the confirmation test is positive,
the inmate may be required to pay the cost of the confir-
mation test.
[8,9] Properly adopted and filed agency regulations have the
effect of statutory law. 24 Statutory language is to be given its
plain and ordinary meaning, and we will not resort to interpre-
tation to ascertain the meaning of words that are plain, direct,
and unambiguous. 25
22
See Jones, supra note 10.
23
But see In re Interest of Noelle F. & Sarah F., supra note 20, and Young,
supra note 20.
24
Leon V., supra note 6.
25
Id.
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771The regulation at issue, § 008.01, provides inmates the
right to “independent confirmation testing of positive results
of urinalysis testing.” The only interpretation consistent with
the plain and ordinary meanings of the regulation’s terms is
that which the district court provided: The regulation pro-
vides inmates with the right to a subsequent, independent
drug test where an initial urinalysis test yields positive results
and those results form, wholly or partially, the basis for a
drug or alcohol violation. Haynes was never drug tested.
Accordingly, the district court did not commit plain error in
concluding that Haynes was not entitled to a drug test under
the circumstances.
[10] The court also concluded that the IDC’s finding that
Haynes had violated Rule 5-1-H was supported by substantial
evidence. Neb. Rev. Stat. § 83-4,122(9) (Reissue 2014) pro-
vides that in prison disciplinary cases which may involve the
imposition of disciplinary isolation or the loss of good time
credit, the standard of proof to sustain the charge shall be
substantial evidence. Substantial evidence is “evidence which
a reasoning mind would accept as sufficient to support a par-
ticular conclusion and consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” 26
To comport with due process requirements, the IDC’s find-
ings must be supported by evidence that has some “‘indicia
of reliability.’” 27
The IDC and the Appeals Board both found that there was
sufficient evidence that Haynes was under the influence of a
drug or intoxicant in violation of prison rules. Haynes testi-
fied that his cellmate was “the one doing all the smoking
and everything else” but that he, personally, was not. Haynes
26
Ponce v. Nebraska Dept. of Corr. Servs., 263 Neb. 609, 612, 641 N.W.2d
375, 377 (2002) (internal quotation marks omitted).
27
See, e.g., Lynch v. Nebraska Dept. of Corr. Servs., 245 Neb. 603, 608,
514 N.W.2d 310, 314 (1994). See, also, Baxter v. Nebraska Dept. of Corr.
Servs., 11 Neb. App. 842, 663 N.W.2d 136 (2003).
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 314 Neb. 771explained that he appeared “lethargic” because he was sleeping
and had been woken up. Fosket reported that both Haynes and
his cellmate were under the influence and that there was drug
paraphernalia on the cell’s table, where Haynes and his cell-
mate were seated. Fosket also reported that Haynes appeared
lethargic, responded to questions slowly, and had orange marks
on his left-hand pointer finger and thumb. Fosket concluded
that all of the above were signs of drug use.
Haynes argues that Fosket’s observations were unreliable.
However, nothing in the record calls the reliability of Fosket’s
observations into question. 28 As NDCS emphasizes, Fosket
was present and able to observe both the drug paraphernalia in
Haynes’ cell and Haynes’ behaviors and appearance. In addi-
tion, other evidence in the record corroborates certain details
of Fosket’s report and testimony.
The evidence was sufficient to uphold the IDC’s finding that
Haynes violated Rule 5-1-H, and the district court did not com-
mit plain error in holding the same.
CONCLUSION
The district court did not commit plain error. Accordingly,
we affirm.
Affirmed.
Freudenberg, J., not participating.
28
Contrast with Lynch, supra note 27.