### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 11

OCTOBER TERM, A.D. 20 20

January 22 , 2021

CHESTER LOYDE BIRD,

Appellant (Plaintiff),

v.

ROBERT O. LAMPERT, in his official capacity as Director of the Wyoming Department of Corrections,

Ap pellee (Defe ndant). S

- 20

- 0149

Appeal from the District Court of Laramie County

The Honor ab le Thomas T.C. Campbell , Judge

Representing Appellant:

Chester L oyde Bird, p ro se

.

Rep re senting Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Cra ig

, Deputy Atto rney General; Jo shua C. Eames , S en ior Assistant Attorney General ; Samuel Willi ams, Assistant Attorney General

.

Before DAVIS, C.J., and F OX , K AUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before public ati on in Pacifi c Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of a n y typ ographical or other formal errors so that correction may be made before final publication in the pe rma nent volume.1 GRAY , Justice.

[¶1] Chester L oyde Bird is serving concurrent life sentence s for crimes he committed

in the 1990s. Mr. Bird filed a pro se complaint under the U niform Declaratory Judgment s Act, alleging that the Wyoming Department of Correcti ons (WDOC) inmate

classi f ication policies are rules

, and because those rules were not filed with the S ecretary
of S tate, they are invalid

. Therefore

, he claims his recent inmate classification is void

. The district court dismissed his complaint. We affi rm.

ISSUE

[¶2] Is the WDOC ’s i nmate classification policy a rule required to be filed with the

S ecretary of S tate?

FACTS

[¶3] In 1994, Mr. Bird pled guilty to kidnapping and first

- degree sexual assault. He was adjudicated a habitual criminal and was sentenced to serve two concurrent life

sentences. Bird v. State , 901 P.2d 1123, 1125, 1128 (Wyo. 1995) ; see also Bird v. Lampert , 2019 WY 56, 441 P.3d 850 (Wyo. 2019).

[¶4] This matter began in January 2020, when Mr. Bird filed a Complaint for Declaratory Judgment

. He alleged that at his r ecent a nnual inmate reclassification, he scored “minimum custody” but , because he was subject to a “custody classification

override

, ” he was classified as “medium custody.” T his classification caused him to be ineligible for minimu m s ecur ity hou sing in facilities such as the Wyoming Honor Farm or the Honor Conservation Camp.

[¶5] W D OC Policy and Procedure #4.101 1 (Policy 4.101)

, which governs in mate classifications, was not filed with the Wyoming Secretary of State. Mr. Bird al lege d t h a t

WDOC policies and procedures are “rules” and that Wyo. Stat. Ann. § 25

- 1

- 1 05(a) require s rules to be filed with the S ecretary of S tate. He claim ed the failure to file the WDOC policies and procedures with the S ecretary of S tate renders the m , and any a ct ions taken pursuant to the m , void. Mr. Bird s ought declaration s that the WDOC policies and procedures are unenforceable and that actions taken pursuant to those policies and procedures “affecting [ him ] in a negative m anner” a r e “null and void

. ” He also s ought an injunction prohibiting the WDOC from applying its policies and procedures to him. The defendant, W DOC D irector Robert Lampert, filed a motion to dismiss under W.R.C.P. 12(b)(6) for failure to state a claim

. He argue d that WDOC’s policies and p ro cedures are

1 W yo ming Dep artmen t of Corr ections

, Policy and Procedure #4.101 , In mate Classification ( Sept. 26, 2019)

.2 not “rules” as defined by the Wyoming Administrative Procedure Act. He also argue d

, even if the policies and procedures are “rules,” the failure to file them wi th the S e c retary
of S tate does not render them void. The district court granted Mr . Lampert’s motion to

dismiss , ruling that the WDOC policies and procedures are no t rules and therefore, were not required to be filed

. Mr. Bird appeals.

D

ISCUSSION

I. Is the WDOC’s inmate classification policy a rule required to be filed with the

S

ecret ar y of S tate?

[¶6] The district court held that Policy 4.101 concern s only the internal management of

the institutions under WDOC

. It do es not affect the public and is not the equivalent of prescribing law

. T herefore

, it is exempt from the statutory defini ti on of “ rule

. ” The court

concluded that

, because Policy 4.101 is not a rule

, it is not i n valid even though it was not

file d with the S ecretary of S tate

. Mr. Bird argues that the district court was “clearly wrong” and that WDOC policies and proced ures are “rules and regulations” under the

expres s provisio ns of Wyo. Sta t. Ann. § 1 6

- 3

- 101(b)(ix) and therefore must be filed with

the S ecretary of S tate to be effective

. 2

A. Standard of Review

[¶7] A district court’s dismissal of a complaint for failing to state a claim under

W

. R.C.P. 12(b)(6) is reviewed de novo. Whitham v. Feller , 2018 WY 43, ¶ 13, 415 P.3d 1264, 1267 (Wyo. 2018). This Court applies the same standards and exami nes the same

materials as the district court. Bextel v. Fork Rd. LLC , 2020 W Y 134, ¶ 11, 474 P.3d 625, 628

– 29 (Wyo. 2020) (citing Dockter v. Lozano , 2020 WY 119, ¶ 6, 472 P.3d 362, 364 (Wyo. 2020 ) ). “ We accept the facts alleged in the complaint as true and view them in the light most favorable to [ Mr. Bird, ] the non moving part [ y ]

. ” I d. “ Dismissa l is appropriate if it is certain from the face of the complaint that [Mr. Bird] cannot assert any
fact that would entitle [him] to relief. ” Id. Like wise, statutory construction is a question of law, subject to de novo review. Wyoming Guardians hip Corp. v. Wyoming State Hosp. , 2018 WY 114, ¶ 7, 428 P.3d 424, 429 (Wyo. 2018).

[¶8] “When we interpret statutes, our goal is to give e ffect to the i ntent of the legislature, and we ‘ attempt to determine the legislature’s intent based primarily on the plain and ordi nary meaning of the words used in the statute. ’ ” Matter of Adoption of

MAJB

, 2020 WY 157 , ¶ 15, 478 P.3d 196

, 201 (Wyo. 202 0 ) (quoting Wyom ing Jet Ct r.,

2 For the f irst time on ap peal

, Mr. Bird extends his argument beyond Policy 4.1 01 to other specific

WDOC policies and procedures. Ge nerally, w e will not consider issues not raised below and we decline

to do so here. See Willi a ms v. Tharp , 20 1 7 WY 8, ¶ ¶ 10

– 11, 388 P.3d 513, 517 (W yo. 2017).3 LLC v. Jac kson Hole Airport Bd. , 2019 WY 6, ¶ 12, 432 P.3d 910, 915 (Wyo. 2019 ) ).

“ Where legislative intent is discernible a court should give effect to the ‘most likely, most reasonable, interpretatio n of the statute, given its design and p urpose.’” Wyoming Jet

C tr. , ¶ 12, 432 P.3d at 915 (quoting PacifiCorp , Inc. v. Dep ’ t of Revenue, State

, 2017 WY

106

, ¶ 10, 401 P.3d 905, 908 ( Wyo. 2017) (quoting Adekale v. State , 2015 WY 30, ¶ 12, 344 P.3d 761, 765 (Wyo. 2015))).

We therefore construe each statutory provis ion in pari

materia , giving effect to ev ery word, clause, and se ntence
accordi ng to their arrang ement and connection. To ascertain the meaning of a given law, we also consider all statutes relating to the same subject or having the same general purpose and strive to interpret them harmoniously. We

presu me that the le gislature has acted in a thought ful and rational manner with full knowledge of existing law, and that

it intended new statutory provisions to be read in harmony with existing law and as part of an overall and uniform system of juris prudence. When the word s used convey a

spec ific and obv ious meaning, we need not go farther and engage in statutory construction.

MAJB

, ¶ 15, 478 P.3d at 201 ( quoting PacifiCorp , ¶ 10, 401 P.3d at 908

– 09 (quoting Nicodemus v. Lampert , 2014 WY 135, ¶ 13, 3 36 P.3d 67 1, 674 (Wyo. 2 014 ))).

B. Anal ysis

[¶9] Mr. Bird arg ues that this Court has already determined P olicy 4. 101 is a rule that must be filed according to Wyo

. Stat. Ann. § 25

- 1

- 1 05. He cites Cosco v. Lampert , 2010 WY 52, ¶ 11, 229 P.3d 962, 967 (Wyo. 20 10) in supp ort of t his a rgument

. In Cos co , an inmate clai med that under the WDOC grievance process the WDOC staff had wrongfully deprived him of property. Cosco

, ¶ 3 , 229 P.3d at 964. In its discussion

, th e C ourt
addressed Mr. Cos co’s use of the grievanc e process and s aid that g rievance procedur e s “are the sort o f rules and regulations contemplated by § 25

- 1

- 1 05 and the final result of an inmate grievance is not a matter that may b e appealed to the courts.” Id. ¶ 11, 229

P.3d at 967.

[¶10] Wyo

. Stat. Ann. § 25

- 1

- 1 05 sets forth the powers of the WDOC

. Subsection (a) provides:

The department of corrections shall adopt rules and regulations necessary to carry out its functions. The promulgation of substantive rules by t he department , the

conduct of its hearings and its final decisions are4 specificall y exempt from all provisions o f the Wyoming Administrative Procedure Act including the provisions for judicial review under W.S. 16

- 3

- 144 and 16

- 3

- 115. The departm ent’s rules shall be fil ed in the office of the secretary

of state.

Wyo

. Stat. Ann. § 25

- 1

- 1 05 (a) (L exisNexi s 2019) ( emphasis ad ded).

[¶11] The Cosco discussion specifically applies to the exemption of W DOC “hearings

and its final decisions ” from judicial review. The question of whether the grievance

proc edure is a rule or whether the inmate class i f ication policy is a rule as defined by Wyo. Stat. Ann. § 16

- 3

- 101(b)(ix)(A ) was not before the Cosco Court and was not addressed by the opinion

. Mr. Bird’s reliance on Cosco is misplaced.

[¶12] Wyo

. Stat. Ann. § 25

- 1

- 1 05 ex empts the WDOC’s promulgation o f sub stantive

rules fr om the Administrative Procedure Act and requires that WDOC rules be filed with

the S ecretary of S tate

. It does not

, however

, define substantive rules

. In ascertaining the meaning of a given la w, we conside r all statutes relating to the s ame subject or ha ving the same general purpose and strive to interpret them harmoniously. MAJB , ¶ 15, 478 P.3d at

201 (quoting PacifiCorp , ¶ 10, 401 P.3d at 908

– 09 (quoting Nicodemus

, ¶ 13 , 336 P.3d at

674 )). The Wyomi ng Administrative Procedure Act’s d efinition of a rul e and its exemptions are instructive in determining the meaning of a substa ntive rule as used in Wyo. Stat. Ann. § 25

- 1

- 1 05

. Wyo

. Stat. Ann. § 16

- 3

- 101(b)(ix) d efines a “rul e” as a “statement of general a pplicability that implements, in t erprets and prescr ibes law, policy or ordinances of cities and towns, or describe s the organization, procedures, or practice requirements of any agency.” 3 Wyo. S tat. Ann. § 16

- 3

- 1 01(b)(ix). Th e statute then lists eight ex clusions to the definition of a r ule

.

3 Wyo. Stat

. Ann. § 16

- 3

- 101 (b) (ix) provides: (ix) “Rule” means each agency statement of g eneral applicability that implements, interprets and presc ribes law, policy or ordin ances of cities and towns, or de s cribes the organization, procedures, o r practice requirement s of any agency. The term includes the amendment or repeal of a prior rule, but does not include: (A) Statements concerning only the inte rnal management of an

agen cy and not affecting private ri g hts or procedures available to the pub lic; or (B) Rulings is sued pursuant to W.S. 16

- 3

- 106; or (C) Intraagency memoranda; or (D) Agency deci sions and findings in contested cases; or (E) Rules concer ning the use of public roa ds or facilities which are

indi c ated to the public by means of signs a nd signals; or (F) Ord inances of cities and towns; or (G) Designations under W.S. 9

- 2

- 1022(h)(i); or5 [¶13] Policy 4.10 1 provides “guidelines for carrying out inmate classification in [WDOC] correctional facilities.” The policy “specifies the objectives of the classification
syst em and methods for achieving them

, and provi des a monitoring and evaluation

mechanism to deter mine whether the objectives are being met.” Policy 4.101(I)(A)

. While on its face it meets the preliminary definition of a rule

, t he determinative inqui ry is

whether Policy 4.10 1 falls under one of the ei ght listed ex clusions

. Applica ble here is the

fir st of these

. “ S tatements concerning o nly the internal management of an agency and not affecting private rights or procedures available to the public” are ex cluded from the

definiti on of a rule

. Wyo. Stat. Ann. § 16

- 3

- 101(b)(ix)(A). T o determine whether Policy

4.101 falls under this exclusio n, we examine its conjunctive parts: 1) internal management; and 2) no effect on private rights or procedures available to the public.

1. Internal M anagement

[¶14] P olicy 4.101 establishes procedures, guid elines and criteria for WDOC staff to

evaluate inmate c la ssifications to ensure the safety and secur ity of inmates and WDOC

facili ties. See WDOC Policy 4.101( III)(A). These are matters of internal management

. See , e.g. , Wyo. Stat. Ann. § 7

- 13

- 420 (b) (st ating that rules ad o pted by the governor regarding good t ime allowances “shall at all times be considered rules rel ating to the

interna l management of state penal institutions”) ; Mares v. Fed. Bureau of Prisons , 401 F. Supp. 2d 775, 778 (S.D. Tex . 2005) (p rogram

- termination d ecision is exempt from the

notice and comment requirement as a ge neral statement of policy ) ; Gr een v. Nadeau , 70 P.3d 574, 577 (Colo. App. 2003) (“ The supervision and management of the internal procedures of correctional insti tutions ar e within the discre t ion of inst itutional officials

and no t subject to judicial scruti ny absent exceptional circumst ances. ”). Policy 4.101 addresses internal management of WDOC.

2. No E ffect on P rivate R ight s or P rocedures A vailable to the P ublic

[¶15] P olicy 4. 1 01 ’ s objective is “ t o provide for the impartial o bjective assessment of risk, categorization, and effic ient management of every inmat e in the system

. ” 4 Policy 4.101(IV)(A). T he p olicy does not give an inmat e a ny right to a specific classification.

Indee d, the Tenth Circui t has held that “[c]hanging an in mate ’ s prison classification ordinarily does not deprive him of liberty, because he is not entitled to a particular degree of liberty in prison.” Templeman v. Gunter , 16 F.3d 367, 369 (10th Cir. 1994); s ee also

Meachum v. F ano , 427 U.S. 215, 225 , 96 S.C t. 2532 , 2538, 49 L.E d.2d 451 (1976) (no

( H) A general permit. Wyo. Stat. Ann. § 16

- 3

- 101 (b) (ix)( A)

– (H) (LexisNexis 2 0 19).

4 The p olicy limits review to “wh e t her there was substantial compliance w ith agency standards a nd procedures in handling the inmate classification ” and “ wheth er the resulting classification decision is in compliance with the classification plan.” WDOC Policy 4.101(IV)(L)(5) & (M)(5)

.6 liberty interest in transfer from low to maximum

- security prison because “[c]onfine ment
in any of the State ’ s institu tions is within the normal limits or range of cu stody which the

con v iction has authorized the State to im pose”); Counts v. Wilson , 573 F. App ’ x 754, 757 (10th Cir. 2014) (“ neither Wyoming law nor prison policies and proced ures created a liberty interest in good time credits ”); Harbin

- Bey v. Rutter , 420 F.3d 571, 577 (6th C ir. 2005) (increase in security class ification does not constitute an atypical and significant hardship because “a prisoner has no constitutional right to remain incarcerated in a particul ar prison or to be held in a specific security c lassification”); Ha n kins v. Miller

, No. 94

- 1590, 1995 WL 539737 , at *1 (10th Cir. S e p t

. 1 2

, 1 995) (defendant had no li berty interest in prison classification). Mr. Bird has no pri vate right to any class ifica tion

.

[¶16] Policy 4.101 is not a “ procedure[] availa ble to the public.” “Public” is defined as

“ [ a dj. ] 1. Of, relat ing to, or involving an entire community, state, or c ountry. 2. Open or available for all to use, share, or enj oy. ” and “ [ n

. ] 1. The people of a country or community as a whole. ” “ 2. A place open or visible to the public. ” P ublic

, Black ’ s Law Dictionary (11th ed. 2019)

. Policy 4.101 applies exclusive l y to inmates in faci l ities WDOC manages. Inmates have bee n removed from the public to serve their sentences of

i ncarceration

. See Pell v. Pr ocunier , 417 U.S. 817, 822

– 23 , 94 S. Ct. 2800, 2804, 41

L.Ed.2d 495 (1974) ( recognizing distin ction between “prison inmates and members of the general public b eyond the pris on wa lls ” and that isolation of criminal offenders from society is a deterrent to cr iminal conduc t) ; Whitfield v. Stat e , 781 P.2d 913, 918 (Wyo. 1989) (pub lic safety is a justificat ion for prison sentence)

.

[¶17] Policy 4.1 0 1 relates to internal managemen t and does not affect private rights or procedures available to the public

. I t is exclude d from the Admi nistrativ e Procedure

Act’s definition of a r ule

. Wyo. Stat . Ann. § 16

- 3

- 101(b)(ix)(A ). Because Policy 4.101

is not a r ule, WDOC was not required to file it with th e S ecretary of S tate’s office. Wyo

. Stat. Ann. § 25

- 1

- 1 05.

[¶18] Mr. Bird has f ailed to state a claim u pon which relief can be granted. The district

co urt’s d ismissal under W.R. C.P. 12(b) is affirmed

.