Payne v. Hopkins

IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

PAYNE V. HOPKINS

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

CHRISTOPHER M. PAYNE, APPELLANT,

V.

FRANK X. HOPKINS ET AL., APPELLEES.

Filed May 23, 2017. No. A-15-1126.

Appeal from the District Court for Lancaster County: KAREN B. FLOWERS and LORI A.

MARET, Judges. Affirmed.

Christopher M. Payne, pro se.

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

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

MOORE, Chief Judge.

INTRODUCTION

Christopher M. Payne appeals from the order of the district court for Lancaster County,

which dismissed his complaint against the Nebraska Department of Correctional Services (DCS)

and three DCS employees--Frank Hopkins, Fred Britten, and Scott Busboom--sued in both their

individual and official capacities (collectively DCS officials). For the reasons set forth herein, we

affirm.

BACKGROUND

On April 30, 2014, Payne filed a complaint in the district court against DCS and the DCS

officials in their official and individual capacities. Payne alleged that he was an inmate housed at

the Tecumseh State Correctional Institution (TSCI) and that he had “produced artwork containing

nudity,” which was confiscated from him by prison employees in October 2012 and January 2013.

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Payne alleged that his numerous requests that the artwork either be returned to him and/or mailed

out of the institution were denied by the three DCS officials named as defendants. Payne noted an

operational memorandum at TSCI that prohibits the making of items that depict nudity and alleged

that other DCS-operated institutions, namely, Lincoln Correctional Center, do not prohibit the

production of this type of artwork. Payne alleged that the actions of the three DCS officials (1)

violated his First Amendment right to send and receive mail, (2) violated his Fourth and Fourteenth

Amendment rights to be free from unlawful seizure and deprivation of ownership interests without

due process, and (3) exhibited reckless indifference to his right to send and receive mail by

intentionally refusing to allow him to mail the artwork out of TSCI. He also alleged that the

operational memorandum could have no other purpose than to suppress the artistic expression of

free speech of the inmates housed at TSCI and violated the equal protection clause because other

institutions under DCS control do not prohibit inmates from producing artwork containing nudity.

Payne sought monetary damages from the three DCS officials, including, punitive damages,

injunctive relief enjoining the defendants from “any future and further misconduct of this nature,

and for the release of the artwork,” and declaratory relief invalidating the operational

memorandum, including “those rules or regulations which prohibit Payne from producing artistic

drawing depicting nudity or penetration.”

Hopkins and Busboom sought dismissal of Payne’s complaint as to them in their individual

capacities, which motion was granted by the district court on October 18, 2013. Payne’s appeal

from the October 2013 order, in case No. A-13-961, was dismissed by this court on January 10,

2014, for lack of jurisdiction because the order did not dispose of all claims as to all parties.

On January 12, 2015, the district court granted a similar motion for dismissal filed by

Britten. In the orders ruling on the DCS officials’ motions to dismiss, the district court found that

the DCS officials were entitled to qualified immunity in their individual capacities because Payne,

as an inmate, did not have a clearly established constitutional right to possess or mail the artwork

at issue.

None of the DCS officials were sued or served with process in their official capacities and,

thus, the complaint was dismissed as a matter of law as to the individual defendants in their official

capacities for failing to accomplish service within six months of filing.

DCS filed a motion to dismiss for failure to state a claim upon which relief could be

granted, which was granted by the district court on November 5, 2015. With respect to DCS, the

court found that DCS was not a person subject to suit for damages under 42 U.S.C. § 1983; DCS

did not violate Payne’s First Amendment rights when it prohibited him from possessing and

sending the artwork in question; because Payne did not have a protectable Fourth Amendment

right inside his prison cell, he failed to state a claim for a Fourth Amendment violation against

DCS when his artwork was confiscated; and because the Constitution does not mandate that a

practice permitted at one correctional institution be permitted at all correctional institutions, the

lack of regulations similar to the operational memorandum at other correctional institutions did

not violate Payne’s equal protection rights.

Payne subsequently perfected the present appeal.

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ASSIGNMENTS OF ERROR

Payne asserts that the district court erred in finding the DCS officials were entitled to

qualified immunity and dismissing the complaint against the DCS officials in their individual

capacities.

STANDARD OF REVIEW

A district court’s grant of a motion to dismiss is reviewed de novo. Hill v. State, 296 Neb.

10, ___ N.W.2d ___ (2017). When reviewing an order dismissing a complaint, the appellate court

accepts as true all facts which are well pled and the proper and reasonable inferences of law and

fact which may be drawn therefrom, but not the plaintiff’s conclusion. Id.

ANALYSIS

Qualified immunity protects government officials acting in their individual capacities from

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known. Potter v. Board of Regents,

287 Neb. 732, 844 N.W.2d 741 (2014). Qualified immunity consists of two inquiries: (1) whether

the facts that a plaintiff has alleged make out a violation of a constitutional right and (2) whether

the right at issue was clearly established at the time of the defendant’s alleged misconduct. Payne

v. Nebraska Dept. of Corr. Servs., 24 Neb. App. 1, 879 N.W.2d 705 (2016). The protection of

qualified immunity applies regardless of whether the government official’s error is a mistake of

law, a mistake of fact, or a mistake based on mixed questions of law and fact. Id. Qualified

immunity gives government officials breathing room to make reasonable but mistaken judgments

and protects all but the plainly incompetent or those who knowingly violate the law. Potter v.

Board of Regents, supra. The dispositive inquiry for qualified immunity is whether it would be

clear to a reasonable officer in the agent’s position that his conduct was unlawful in the situation

he confronted. Payne v. Nebraska Dept. of Corr. Servs., supra. A government official’s conduct

violates clearly established law when, at the time of the challenged conduct, the contours of a right

are sufficiently clear that every reasonable official would have understood that what he or she is

doing violates that right. Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014). If a reasonable

official could have believed his or her conduct was lawful, the official’s conduct does not violate

clearly established law. Id.

In denying Payne’s Fourth Amendment claim, the district court found that the DCS

officials were entitled to qualified immunity because Payne’s right to possess the artwork was not

clearly established. The district court found that the operational memorandum at issue in this case

is a preventive measure aimed at maintaining prison security, relying on Thornburgh v. Abbott,

490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989) (finding prison officials may lawfully

censor prison mail detrimental to security, good order and discipline of institution and it is essential

that prison officials be given broad discretion to prevent such disorder). Payne does not challenge

the court’s findings with respect to his Fourth Amendment claim, accordingly, we do not address

them further.

The district court found the DCS officials entitled to qualified immunity with respect to

Payne’s First Amendment claim because Payne’s right to possess the artwork was not clearly

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established and because the artwork was confiscated as contraband, and his right to mail it out of

TSCI was also not clearly established. The court relied on Smith v. Delo, 995 F.2d 827 (8th Cir.

1993) (prison regulation requiring outgoing mail addressed to media or clergy be unsealed in

prison mailroom and inspected did not violate prisoner’s First Amendment rights as it was

rationally related to legitimate interest in screening mail for escape plans, contraband, threats, or

evidence of illegal activity).

Payne notes precedent holding that, “Outgoing personal correspondence does not generally

pose a serious threat to prison order and security. . . . For this reason, a prisoner’s personal outgoing

mail is unrestricted unless it falls into categories which present a threat to prison order and security,

such as, but not limited to, ‘escape plans, plans related to ongoing criminal activity, and threats of

blackmail or extortion.’” Leonard v. Nix, 55 F.3d 370, 374 (8th Cir. 1995), citing Thornburgh v.

Abbott, supra. Payne argues that the artwork in question does not violate a criminal law or pose a

threat to prison security if mailed out of the institution. He argues that he “enjoys the Constitutional

right to send mail” and that under the circumstances of this case, his right was clear. Brief for

appellant at 7. In so arguing, he relies on Keup v. Hopkins, 596 F.3d 899 (8th Cir. 2010).

The inmate in Keup v. Hopkins was incarcerated at the Lincoln Correctional Center (LCC)

and challenged restrictions on his ability to send and receive mail. One of the incidents at issue in

that case was the inmate’s attempt to mail certain drawings to his mother, one of which contained

a bare-breasted woman and one of which depicted a marijuana leaf. At that time, LCC had an

operational memorandum in place that prohibited inmates from manufacturing, possessing, or

distributing drawings such as those made by the inmate. The operational memorandum was

subsequently amended to ban drawings advocating or likely to incite violence or illegal activity.

The inmate filed grievances alleging a violation of his free speech rights, which grievances were

denied. The inmate filed an action under 42 U.S.C. § 1983 alleging violation of his First and

Fourteenth Amendment rights when he was prohibited from sending the drawings to his mother

and requesting compensatory and punitive damages and declaratory and injunctive relief. The

defendants asserted that the inmate’s request for injunctive relief was moot due to the amendment

of the operational memorandum. The inmate subsequently amended his complaint to allege

additional claims related to other incidents. The federal trial court granted summary judgment for

the defendants, finding that the amendment of the operational memorandum rendered the inmate’s

requests for prospective injunctive and declaratory relief moot, but rejected the defendants’ other

defenses. At the conclusion of a jury trial on the issue of the inmate’s requests for damages, the

trial court directed a verdict in favor of the inmate against the defendants for prohibiting him from

mailing his drawings to his mother and another group and awarded nominal damages. The inmate’s

other claims were either rejected by the trial court or the jury. The trial court subsequently awarded

attorney fees to the inmate. The defendants appealed and the issues on appeal were whether the

trial court erred in rejecting their claims of mootness with respect to the inmate’s monetary

damages for violations of rights prior to amendment of the operational memorandum, rejecting

their exhaustion of administrative remedies defenses, and awarding attorney fees.

On appeal, the Eighth Circuit found that while amendment of the operational memorandum

mooted any claims for prospective injunctive or declaratory relief, it did not deprive the prisoner

of the opportunity to seek monetary damages for any violations of his constitutional rights

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occurring before the amendment. Keup v. Hopkins, 596 F.3d at 903-904. The court also determined

that the defendants waived their exhaustion of administrative remedies defense by not reasserting

it at trial and that the prisoner, as the prevailing party, was entitled to attorney fees, to which the

court applied a statutory cap. 596 F.3d at 904-905.

Payne argues that Keup v. Hopkins, 596 F.3d 899 (8th Cir. 2010), shows that his right to

mail the drawings at issue in this case was clearly established and would have been known to

Hopkins (a defendant in both cases), and that Hopkins and the other DCS officials in this case “did

violate this clearly established law.” Brief for appellant at 8. Accordingly, Payne argues that the

district erred in finding that the DCS officials had qualified immunity with respect to his First

Amendment claim. We disagree. The Nebraska Supreme Court has stated, “A case does not need

to be directly on point, but existing precedent must have placed the constitutional question beyond

debate.” Carney v. Miller, 287 Neb. 400, 417, 842 N.W.2d 782, 797 (2014), citing Ashcroft v.

al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011). The appellate opinion in Keup

v. Hopkins, supra, addresses none of the issues applicable to this case and does not clearly establish

Payne’s constitutional right to mail the drawings in question. Nor has Payne shown a right to

possess the drawings. Maintaining institutional security and preserving internal order and

discipline are essential prison goals which may require the limitation of some of a prisoner’s

constitutional rights. Meis v. Grammer, 226 Neb. 360, 411 N.W.2d 355, 356 (1987). Payne has

not established that it would be clear to reasonable prison officials in the positions of the DCS

officials in this case that their conduct was unlawful. The district court did not err in finding the

officials entitled to qualified immunity with respect to Payne’s First Amendment claims.

Finally, Payne argues that the district court misinterpreted his claim under the Fourteenth

Amendment. In finding that the individual defendants were entitled to qualified immunity under

the Fourteenth Amendment, the district court concluded that it was not clearly established that the

denial of Payne’s right to possess the artwork at his current institution would result in the violation

of Payne’s rights when he would be able to possess the artwork at a different institution. The

district court observed that the Constitution does not mandate that a practice permitted at one

correctional institution be permitted at all correctional institutions, relying on Turner v. Safley, 482

U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (when prison regulation impinges on inmates’

constitutional rights, regulation is valid if reasonably related to legitimate penological interests)

and Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (Due Process Clause

does not mandate that practice permitted at one penal institution must be permitted at all

institutions).

Payne did not specifically assign error to the district court’s interpretation of his Fourteenth

Amendment claim; rather, he only assigned error generally to the court’s finding of qualified

immunity. He does not argue how the finding of qualified immunity was in error as it relates

specifically to the Fourteenth Amendment claim. Thus, we need not address this argument further.

To be considered by an appellate court, an error must be both specifically assigned and specifically

argued in the brief of the party asserting the error. Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d

569 (2017).

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CONCLUSION

The district court did not err in finding the DCS officials were entitled to qualified

immunity and dismissing the complaint against the DCS officials in their individual capacities.

AFFIRMED.

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