                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                           GRAY V. NEBRASKA DEPT. OF CORR. SERVS.


  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).


                                   GRAYLIN GRAY, APPELLANT,
                                                 V.

            NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES ET AL., APPELLEES.


                               Filed April 9, 2019.   No. A-18-073.


       Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
       Graylin Gray, pro se.
       Douglas J. Peterson, Attorney General, and James D. Smith, Solicitor General, for
appellees.


       PIRTLE, ARTERBURN, and WELCH, Judges.
       WELCH, Judge.
                                        INTRODUCTION
        Graylin Gray appeals the decision of the Lancaster County District Court dismissing his
petition for declaratory relief on the basis that the claims had become moot. Having determined
that the assigned errors raised by Gray on appeal lack merit, we affirm.
                                    STATEMENT OF FACTS
         Graylin Gray is an inmate with the Nebraska Department of Correctional Services
Institution (NDCS). On June 13, 2017, he filed a petition for declaratory relief claiming that NDCS
Administrative Regulation No. 116.04 (AR 116.04) and policy directive 017-020 are
         unconstitutional and invalid because (1) the attendant forfeiture of good time increases the
         quantum of punishment for Gray’s original crimes beyond the measure of punishment



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       legally stated at the time they were committed; and (2) [they were] not promulgated, signed
       by the Governor, and filed with the Secretary of State in accordance with the provisions of
       the Administrative Procedure Act.

      The provision within AR 116.04 of which Gray complains is found within the section on
Procedure, subsection IV. It provides:
      Identified inmates refusing to provide a DNA sample will not be promoted to minimum
      “B” or community custody. If an identified inmate (I, II, III, pages 2 and 3) are [sic]
      refusing to provide a DNA sample and is approaching his or her discharge date, a final
      opportunity will be given approximately seven days before the scheduled discharge date to
      provide a sample. If an inmate who is required to provide a DNA sample prior to his or her
      release from incarceration does not do so, all good time will be withheld and the inmate’s
      sentence will be recalculated to the maximum prison term. The action to withhold all good
      time will be accomplished by a unit classification committee convened for that purpose
      with proper (48 hour) notification to the inmate. The Warden shall approve this
      classification action. The inmate shall then remain in the custody of NDCS until
      completion of his/her maximum prison term (with no credit for good time) or until such
      time as he/she provides a DNA sample.

       In response to Gray’s complaint, NDCS filed a motion to dismiss arguing that Gray’s
claims became moot subsequent to the filing of his complaint. At the hearing on its motion, NDCS
admitted into evidence policy directive 017-029, dated July 27, 2017, which provided in pertinent
part:
               Effective immediately, the changes made to AR 116.04, DNA Collection, by policy
       directive 017-020 issued on May 12, 2017 are rescinded. The changes made by policy
       directive 017-020 will not be incorporated into AR 116.04 during the next scheduled
       review.
               In addition the following change to AR 116.04 is effective immediately:
               On page 4-5, delete paragraph 4 of the procedure section.

This language is then followed by a full recitation of the original language in subsection IV as
stated above with a line through all of the language demonstrating its deletion from AR 116.04.
        NDCS also introduced into evidence an affidavit from Scott Frakes, Director of NDCS,
noting that he rescinded policy directive 017-020 issued May 12, 2017, and issued policy directive
017-029 which deleted subsection IV of the procedure section of AR 116.04.
        After reviewing the evidence, the district court dismissed Gray’s petition for declaratory
judgment stating that the changes made to AR 116.04 removed the risk of Gray or any other inmate
being disciplined for refusing to submit to a DNA test thereby rendering Gray’s claim moot.
                                  ASSIGNMENT OF ERROR
       On appeal, Gray assigns as error that the “district court erred and abused its discretion by
granting [NDCS’] Motion to Dismiss.” Brief for appellant at 3. In his argument, Gray cites to Neb.



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Rev. Stat. § 84-906(1) (Cum. Supp. 2016); Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559
(2014); Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 N.W.2d 655
(2010); McAllister v. Nebraska Dept. of Corr. Servs., 253 Neb. 910, 573 N.W.2d 143 (1998). After
discussing § 84-906(1) and these cases, Gray reiterates the original language in his petition by
arguing:
               It is [Gray’s] position that . . . Nebraska Department of Correctional Servs.
       regulation and policy directive entitled DNA Collection (formerly DNA Detection of
       Sexual and Violent Offensers), A.R. 116.04 and Policy Directive: 017-020 are
       unconstitutional and invalid because (1) the attendant forfeiture of good time increases the
       quantum of punishment of Gray’s original crimes beyond the measure of punishment
       legally stated at the time they were committed; and (2) they were not promulgated, signed
       by the Governor, and filed with the Secretary of State in accordance with the provision of
       the Administrative Procedure Act. . . . Thus, the district court erred and abused its discretion
       by granting [NDCS’] Motion to Dismiss.

Brief for appellant at 8-9.
                                    STANDARD OF REVIEW
        Here, because the parties submitted evidence on Frakes’ motion to dismiss, we clarify our
standard of review. 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). But, when matters outside the pleading are presented by the parties and
accepted by the trial court with respect to a motion to dismiss under § 6-1112(b)(6), the motion
“shall be treated” as a motion for summary judgment and the parties shall be given a reasonable
opportunity to present all material made pertinent to such a motion by statute. See Brothers v.
Kimball Cty. Hosp., 289 Neb. 879, 857 N.W.2d 789 (2015).
        When receiving evidence that converts a motion to dismiss into a motion for summary
judgment, the trial court should give the parties notice of the changed status of the motion and a
reasonable opportunity to present all material made pertinent to such a motion. Nebraska Coalition
for Ed. Equity v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007). However,
        “‘[a] district court’s failure to give formal notice that it will treat a motion to dismiss for
        failure to state a claim as a motion for summary judgment is harmless where the nonmoving
        party has submitted materials outside of the pleadings in support of its resistance to a
        motion to dismiss . . . .’”

Id. at 539, 731 N.W.2d at 172 quoting Hamm v. Rhone-Poulenc Rorer Pharmaceuticals, Inc., 187
F.3d 941, 949 (8th Cir. 1999). Error without prejudice provides no ground for relief on appeal.
Brothers v. Kimball Cty. Hosp., supra.
        In this case, Frakes’ motion to dismiss specifically set forth that the issue being raised was
that Gray’s complaint was moot. Although the district court never specifically advised the parties
that Frakes’ motion to dismiss was being converted into a motion for summary judgment, both



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Frakes and Gray were given the opportunity to, and did present evidence, at the hearing on the
motion to dismiss. As a result, no prejudice occurred from the district court’s failure to inform the
parties that it was converting Frakes’ motion to dismiss into a motion for summary judgment.
Therefore, we review the district court’s order as converting Frakes’ motion to dismiss into a
motion for summary judgment.
        Summary judgment is proper when the pleadings and evidence admitted at the hearing
disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judgment as a matter of law. Colwell v.
Mullen, 301 Neb. 408, 918 N.W.2d 858 (2018). In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the party against whom the judgment is
granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
Id.
                                            ANALYSIS
        Gray’s original petition for declaratory judgment is based upon his concern that, pursuant
to AR 116.04 and policy directive 017-020, he will forfeit good time credit and his period of
incarceration will be extended for his refusal to provide a DNA sample. His theory is tied to the
Nebraska Supreme Court’s holding in Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559 (2014).
        In Shepard, George Shepard was originally sentenced on July 11, 1990, to a combined term
of 50 years’ imprisonment. Under the good time laws in effect at the time of his offenses, Shepard’s
projected mandatory discharge date was May 4, 2015. In 1997, the Legislature enacted the DNA
Detection of Sexual and Violent Offender’s Act, now known as the DNA Identification
Information Act (Act), for collection of DNA samples from any person convicted of a felony sex
offense or other specified offense in order to place such sample in a State DNS Sample Bank.
Since 1997, Neb. Rev. Stat. § 29-4106(2) (Reissue 2016) has provided for retroactive application
of the Act to persons convicted before the date of the Act. Specifically, § 29-4106(2) provides:
        A person who has been convicted of a felony offense or other specified offense before July
        15, 2010, who does not have a DNA sample available for use in the State DNA Sample
        Bank, and who is still serving a term of confinement or probation for such felony offense
        or other specified offense on July 15, 2010, shall not be released prior to the expiration of
        his or her maximum term of confinement or revocation or discharge from his or her
        probation unless and until a DNA sample has been collected.

The Supreme Court noted in Shepard that NDCS AR 116.04 “implements this statute and provides
that an inmate’s refusal to provide a DNA sample will result in administrative withholding of all
good time and that the inmate’s sentence will be recalculated to the maximum prison term.”
Shepard v. Houston, 289 Neb. at 404, 855 N.W.2d at 564. Shepard refused to provide a DNA
sample resulting in the deputy director threatening to forfeit Shepard’s good time credit under
AR 116.04. Shepard then filed a declaratory judgment action arguing that application of § 29-4106
to him was a violation of the Constitutional prohibitions against ex post facto laws. After reviewing
the express terms of § 29-4106 and authority from multiple jurisdictions, the Nebraska Supreme
Court held that “insomuch as § 29-4106(2) forfeits Shepard’s past and future good time and



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recalculates his parole eligibility and mandatory discharge dates without regard to any good time,
it violates the constitutional prohibitions against ex post facto laws.” Shepard v. Houston, 289 Neb.
at 430, 855 N.W.2d at 580.
         Gray argues for similar application here and argues that AR 116.04 and policy directive
017-020 are unconstitutional. But unlike in Shepard, following Gray’s filing of this petition,
NDCS through policy directive 017-029, eliminated the language in AR 116.04 which would
require the forfeiture of his or any other inmates’ good time or require a recalculation of his prison
term. On the basis that this language had been deleted, the district court held that Gray’s petition
had been rendered moot.
         In Nesbitt v. Frakes, 300 Neb. 1, 7, 911 N.W.2d 598, 604 (2018), the Nebraska Supreme
Court held:
         A declaratory judgment 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. At the time that the declaration is sought, there must be an actual justiciable
         issue from which the court can declare law as it applies to a given set of facts. A justiciable
         issue requires a present, substantial controversy between parties having adverse legal
         interests susceptible to immediate resolution and capable of present judicial enforcement.

        Here, by removing subsection IV from the Procedure section of AR 116.04, NDCS
removed the issue presented in Gray’s petition from controversy. That is, Gray’s allegation in his
petition that AR 116.04 and policy directive 017-020 resulted in the potential unconstitutional
forfeiture of his good time earned and resulted in the increased punishment for his original crime
beyond the measure of punishment legally stated at the time the crimes were committed was no
longer authorized by the terms of AR 116.04. Accordingly, the district court did not err in holding
that the issues raised by Gray in his petition had become moot.
        Gray next argues that the provision in AR 116.04 and policy directive 017-020 governing
the forfeiture of good time were not promulgated, signed by the Governor, and filed with the
Secretary of State in accordance with the Administrative Procedure Act and, therefore, are invalid.
Gray’s argument is identical to the argument made by Gray in Gray v. Nebraska Dept. of Corr.
Servs., 26 Neb. App. 660, 922 N.W.2d 234 (2018), albeit there he was challenging language within
AR 116.01 and AR 217.01. As we stated in Gray:
                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




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       . . . . For purposes of the act, every standard which prescribes a penalty shall be presumed
       to have general applicability.”
       § 84-901.

Gray v. Nebraska Dept. of Corr. Servs., 26 Neb. App. at 663, 922 N.W.2d at 237-38.
         Gray’s argument was directed at the language in subsection VII within the procedural
section of AR 116.04 arguing that the language constitutes a penalty provision rendering that
portion of AR 116.04 a regulation that needed to be promulgated in accordance with the APA and
filed in the office of the Secretary of State.
         As we noted above, because NDCS removed the language in subsection VI of AR 116.04
with policy directive 017-029, the issue raised by Gray became moot and the district court did not
err in so holding.
                                        CONCLUSION
         Based upon our standard of review, we find the district court correctly decided that the
issues raised in Gray’s declaratory judgment petition were moot. As a result, the decision of the
district court is affirmed.
                                                                                      AFFIRMED.




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