Payne v. Neb. Dep't of Corr. Servs.

24 Neb.App. 1

879 N.W.2d 705

Christopher M. Payne, Appellant,

v.Nebraska Department of Correctional Services et al., Appellees.

No. A–15–016.

Court of Appeals of Nebraska.

Filed May 3, 2016.

Christopher M. Payne, pro se.

Douglas J. Peterson, Attorney General, and Bijan Koohmaraie for appellee.

Inbody, Pirtle, and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

Christopher M. Payne is an inmate housed at the Tecumseh State Correctional Institution (TSCI) in Tecumseh, Nebraska. He filed suit against the Nebraska Department of Correctional Services (the Department) and several of its employees in their individual and official capacities after being prevented from corresponding with a person housed in a secure treatment facility. After pretrial motions and orders disposed of Payne's case against the Department and the State employees in their official capacities, he tried his remaining claims against the State employees in their individual capacities under 42 U.S.C. § 1983 (2012) before a jury. Following Payne's case in chief, the district court for Lancaster County, Nebraska, sustained the defendants' motion for a directed verdict and dismissed the suit. Payne appeals from this order.

After review of the record and the parties' factual and legal arguments, we affirm the judgment of the district court.

BACKGROUND

The TSCI mailroom procedures manual prohibits TSCI's inmates from receiving mail from inmates housed at correctional institutions. On August 3, 2011, Payne received a notice of returned mail stating that a letter mailed from Rodger Robb in Moose Lake, Minnesota, had been returned to the sender. A copy of the envelope was attached to the returned mail notice, showing that the letter had been stamped “Mailed From A Secure Treatment Facility.” The returned mail notice stated that the reason for the return was that “[t]he mail [was] from another correctional facility and the writer is not approved to correspond.”

Catherine Peters, a mailroom employee at TSCI, testified that she received the letter and believed that it was sent from a correctional institution because of the stamp labeling it from a “Secure Treatment Facility.” She then followed the procedure for dealing with mail that is sent from a correctional institution; that is, she checked to see if Payne's file contained authorization to correspond with the sender, and when it did not, she returned the letter and sent a notice to Payne.

After receiving the notice of returned mail, Payne submitted an “Inmate Interview Request” form with a message for Peters. The message reads: “Several times now Warden Britten has told you people that I am authorized to receive letters from ... Robb, because he is not in a correctional facility nor an inmate, yet you must be dense because you again rejected his letter. If you can't follow instructions get a new job!” Fred Britten, the warden, replied directly to this message, stating, “Research indicates that ... Robb's return address is that of a sex offender program. Additionally, see attached envelope which states that it was mailed from a ‘secure treatment facility.’ You do not have authorization to correspond with this individual.”

An administrative assistant to the warden testified that she performed the research on the Moose Lake facility and drafted the warden's response to the initial inmate interview request. She had no specific recollection of what research she conducted, although she was certain that she had researched the facility and stated she may have performed an Internet search. The warden had no specific recollection of hearing her describe her research or doing any research of his own.

On August 12, 2011, Payne submitted an “Informal Grievance Resolution Form” stating that Robb is not an inmate in a correctional facility, but, rather, a patient in a treatment facility, and that correspondence should be allowed. A prison official responded in September, stating, “You do not have authorization to correspond with this individual.”

Payne then submitted “Step One” (Step 1) grievance forms on September 20 and 25, 2011, stating that Robb was not an “inmate” nor in a “correctional institution,” but that he is a patient in a mental health facility. Assistant warden Michelle Hillman responded to one of these Step 1 grievance forms, and the warden responded to the other. Both concurred with the informal grievance response, and neither allowed Payne to correspond with Robb.

The assistant warden testified that at the time she completed the grievance response, she believed that the Moose Lake facility was actually a correctional facility, because the word “secure” was used on the envelope to describe it. She testified that a prison file would typically accompany grievances and contain additional information on which she would have based her response. The warden also testified that when the issue was brought to him, he believed that the term “secure treatment facility” referred to a prison. Both the warden and the assistant warden stated that they had no reason to believe that the information provided to them by TSCI staff about the nature of the Moose Lake facility was incorrect.

In October 2011, Payne submitted a “Step Two” (Step 2) grievance. A Step 2 grievance is a central office appeal of the result of a Step 1 grievance. Step 2 grievances are forwarded to the general counsel for the prison in the central office, where staff attorneys independently prepare responses. Payne's Step 2 grievance states that Robb is a patient in a Minnesota mental health facility and argues that civilly committed persons in secure treatment facilities are not inmates or prisoners. The central office response to the Step 2 grievance states:

You want to receive mail from a friend in Minnesota. You claim he is a patient at the mental health facility in Minnesota.

The TSCI staff was informed he is an inmate in a correctional facility. If this is inaccurate, you should provide information to your unit staff showing the nature of the facility.

After receiving the response to his Step 2 grievance, Payne submitted another inmate interview request in October 2011 to the warden stating that Robb is in a mental health facility. Payne attached a copy of the warden's response stating that research had indicated that Robb was in a sex offender program in a secure treatment facility as “proof” that Robb was not an inmate. The warden responded by stating that the envelope was mailed from a “ ‘secure treatment facility.’ ”

Testimony indicates that the warden had previously acknowledged that Payne could correspond with mental health patients in the Lincoln Regional Center in Nebraska who were civilly committed and not inmates. The warden stated that although he had visited the Lincoln Regional Center, he had no personal knowledge of the Moose Lake facility or its nature.

Payne filed this suit in April 2012 under 42 U.S.C. § 1983 seeking damages for violations of his First Amendment rights against the State employees in their individual capacities, and additionally seeking equitable relief against them in their official capacities and against the Department.

In January 2013, the Department granted Payne permission to correspond with Robb. In light of this decision, the district court granted summary judgment to the defendants on Payne's claims for equitable relief. The district court denied the remaining defendants' motion for summary judgment as to Payne's First Amendment claims against the employees in their individual capacities.

Payne presented his case in chief to a jury. At the close of Payne's case, the defendants moved for a directed verdict, which the district court granted, reasoning that they were entitled to qualified immunity and that Payne had failed to establish damages. Payne appeals from this determination.

ASSIGNMENTS OF ERROR

Payne assigns that the district court erred in (1) denying Payne's request for appointment of counsel, (2) finding that the defendants are entitled to qualified immunity, (3) sustaining defendants' objection to evidence of prior bad acts, and (4) finding that Payne failed to prove a prima facie case for damages.

STANDARD OF REVIEW

On appeal from an order of a trial court dismissing an action at the close of plaintiff's evidence, this court must determine whether the cause of action was proved and must accept plaintiff's evidence as true, together with reasonable conclusions deducible from that evidence. Russell v. Norton, 229 Neb. 379, 427 N.W.2d 762 (1988).

A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. Sturzenegger v. Father Flanagan's Boys' Home, 276 Neb. 327, 754 N.W.2d 406 (2008). In particular, whether evidence is admissible for any proper purpose under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404 (Cum. Supp. 2014), rests within the discretion of the trial court. Sturzenegger v. Father Flanagan's Boys' Home, supra.

When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

Pettit v. Nebraska Dept. of Corr. Servs., 291 Neb. 513, 867 N.W.2d 553 (2015).

ANALYSIS

Appointment of Counsel.

Payne first assigns that the district court erred in denying his request for appointment of counsel. At issue is whether state or federal law controls appointment of counsel in this action. In civil cases, there is no constitutional or statutory right to appointed counsel. Ward v. Smith, 721 F.3d 940 (8th Cir. 2013). However, 28 U.S.C. § 1915 (2012), the statute governing federal judicial procedure for proceedings in forma pauperis, allows a federal district court discretion to appoint counsel to any person unable to afford an attorney. Although § 1915 leaves appointment of counsel to the discretion of the trial court, a motion for appointment of counsel under § 1915 requires the court to consider...