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Nebraska Court of Appeals Advance S

26 Nebraska Appellate Repor

GRAY v. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 26 Neb. App. 660

Graylin Gray, appellant, v. Nebras

Department of Correcti

Services, appelle

___ 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 reasonable 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/04/2018 08:10 AM CST
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26 Nebraska Appellate Repor

GRAY v. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 26 Neb. App. 660

Appeal from the District Court for Lancaster County: Kevi

R. McManaman, Judge. Aff

Graylin Gray, pro se.

Douglas J. Peterson, Attorney General, and James D. Smith, 

Solicitor General, for appellee.

Pirtle, Riedmann, and Welch, Ju

Riedmann, Jud

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 regulation 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 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 
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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 26 Neb. App. 660

and 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.
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Nebraska Court of Appeals Advance S

26 Nebraska Appellate Repor

GRAY v. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 26 Neb. App. 660

STANDARD 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 public . . . . 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. 660

Although 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. Rather, AR 116.01 

specifically provides 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.” 

AR 116.01 then provides guidance to staff as an internal procedural 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 determining 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. 660

upon 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 meaning 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 procedures 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 requirements of the APA apply to the Department’s rules and regulations. 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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Nebraska Court of Appeals Advance S

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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 26 Neb. App. 660

Disciplinary 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 procedures 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 provides specifically: “Disciplinary procedures in adult institutions 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 procedures 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 applicable 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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26 Nebraska Appellate Repor

GRAY v. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 26 Neb. App. 660

Discovery Motions.

Gray also asserts that the district court erroneously concluded that the motions to stay discovery and quash subpoenas 

were moot. We disagree.

[5] 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. 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 dismiss. 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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Nebraska Court of Appeals Advance S

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GRAY v. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 26 Neb. App. 660

related 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.

Affirmed