Moore v. Grammer
| Decision Date | 14 July 1989 |
| Docket Number | No. 87-1088,87-1088 |
| Parties | James Ray MOORE, Appellant, v. Gary E. GRAMMER et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Actions: Pleadings: Demurrer. In testing whether a petition which has been challenged by a demurrer states a cause of action, a court is required to accept as true all the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom; a court does not, however, accept as true the conclusions of the pleader.
2. Constitutional Law: Prisoners. Prisoners have only narrowly defined liberty interests, for imprisonment necessarily retracts many of the liberties of the free.
3. Constitutional Law: Prisoners: Employment Security. The Constitution does not create a property or liberty interest in prison employment.
4. Constitutional Law: Statutes. To create liberty or property interests, state law must use explicitly mandatory language in connection with the establishment of specific substantive predicates limiting the discretion of the decision maker.
5. Constitutional Law: Statutes: Prisoners: Employment Security: Wages. Nebraska law does not create a protected liberty or property interest in prison employment or wage rates.
James Ray Moore, pro se.
Robert M. Spire, Atty. Gen., and Marie C. Pawol, for appellee.
James Ray Moore, pro se, appeals from an order of the district court for Lancaster County sustaining the appellees' demurrer and dismissing the appellant's petition.
The appellant, an inmate at the Nebraska State Penitentiary, filed this action on July 21, 1987, seeking relief with regard to his transfer to a different prison work assignment. In his petition, the appellant contended that he was dismissed from his prison job without the required procedural due process guarantees of notice and a hearing. On September 3, the appellees, the warden and assistant warden of the Nebraska State Penitentiary, filed a demurrer on the basis that the appellant possessed no constitutional or statutory right to a particular job assignment or wage while incarcerated in a penal institution. On November 12, the appellees' demurrer was heard by telephonic conference. The district court, on November 13, sustained the demurrer, concluding that neither the Constitution nor state law creates a protected property or liberty interest in prison employment.
In his appeal to this court, the appellant's only assignment of error is that the district court erred in sustaining the appellees' demurrer and dismissing the appellant's petition.
In testing whether a petition which has been challenged by a demurrer states a cause of action, a court is required to accept as true all the facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom; a court does not, however, accept as true the conclusions of the pleader. Reimer v. K N Energy, Inc., 223 Neb. 142, 388 N.W.2d 479 (1986). The appellant's petition states that on February 11, 1986, he was dismissed from his position in the property control department at the penitentiary and reassigned to the housing unit utility porters, at a rate of $1.05 per day. The appellant, at the time of his removal, had been assigned to the property control department for more than 5 years and was paid $3.29 per day.
The appellant received no notice as to the basis for his job reassignment, nor was he given a hearing. On February 12, in response to the appellant's inquiry, Larry Wayne, the appellant's housing unit manager, informed the appellant that Deputy Warden Harold W. Clarke had told him that only penitentiary staff would work in the property control department. The appellant then submitted a "step one grievance" to Warden Gary E. Grammer. On February 27, Warden Grammer responded, saying that However, the appellant was never formally charged with any prison rule infraction relating to his work in the property control department.
Thereafter, the appellant filed a "step two grievance" with Frank Gunter, the director of the Nebraska Department of Correctional Services, appealing Warden Grammer's decision. On March 12, Gunter responded, stating:
The Penitentiary administration obtained evidence that you had converted the property of other inmates to your own use and to the use of third party inmates. The fact that a disciplinary...
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