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Nebraska Supreme Court Advance Sheets

314 Nebraska Reports

HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 314 Neb. 771

Jamar 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 integrity, reputation, or fairness of the judicial process.

3. Jurisdiction: Statutes. Subject matter jurisdiction and regulatory interpretation 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 appellate 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 regulations have the effect of statutory law.

Nebraska Supreme Court Online Library

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

07/21/2023 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets

314 Nebraska Reports

HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 314 Neb. 771

9. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation 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 conclusion 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 sanction. 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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Nebraska Supreme Court Advance Sheets

314 Nebraska Reports

HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 314 Neb. 771

the 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 corrections 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 misconduct 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. 771

The 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 lethargic, 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 upholding 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 statements, 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.

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affidavit 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 application were not accompanied by a certified copy of his inmate 

account. The court warned that if Haynes did not file the document 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 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. 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 Id.
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 314 Neb. 771

in damage to the integrity, reputation, or fairness of the judicial process. 5

[3,4] Subject matter jurisdiction and regulatory interpretation present questions of law. 6 An appellate court independently 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. 771

This 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 prescribed 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 authorization 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 appellee’s assertion, there is no statutory requirement that such 

authorization be obtained in order to make the affidavit 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 application 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.
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 314 Neb. 771

granting or denying the appellant’s in forma pauperis request. 18

Referencing our analysis in In re Interest of N.L.B., we concluded 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 conclude 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.
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HAYNES V. NEBRASKA DEPT. OF CORR. SERVS.

Cite as 314 Neb. 771

or 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 functionally abandoned its statutory duty to determine the validity 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 provide 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 confirmation 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 interpretation 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. 771

The 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 provides 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) provides 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 particular 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 findings 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 testified 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. 771

explained 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 cellmate 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 addition, 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 commit 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.