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Jacob v. Hill6/10/2003
(not designated for permanent publication)
I. INTRODUCTION
Steven M. Jacob appeals from an order of the Lancaster County District Court sustaining the following appellees' demurrer: Jenny Hill; Carla Jurgens; Damaris Schon; Jennifer Casey; P.R. (name unknown); Mario Peart; Teresa Predmore; Michael Kenney; Frank Hopkins, Jr.; Harold Clarke; and the Nebraska Department of Correctional Services (collectively Appellees). For the reasons stated herein, we affirm in part, and in part reverse and remand for further proceedings.
II. BACKGROUND
On August 3, 2000, Jacob filed a petition requesting relief from the "deprivation of his constitutional civil rights." Jacob alleged that the Appellees refused to deliver the magazines to which he had subscribed. We note that Casey, Predmore, and P.R. (name unknown) were not parties to the initial petition but were added in Jacob's first amended petition. Two of the magazines which were held were Electronic Design and PC Week. The reason given for not delivering these magazines was that they were "advertising . . . which is not allowed." The Appellees cited 68 Neb. Admin. Code, ch. 3, § 005.01 (2000) (rule 005.01), in support of their decision to withhold the magazines.
Jacob alleged that he had received these magazines for years prior to the Appellees' decision to withhold them. Jacob stated that prior to being incarcerated, he owned his own business, and that in 1995, that company ceased to be in business. Jacob stated that he exhausted his administrative remedies. In his petition, Jacob sued the Appellees in both their individual and official capacities.
Based on the above facts, Jacob set forth five causes of action. First, Jacob alleged that the actions of the Appellees violated his right to freedom of speech and placed an "unreasonable and unneeded restriction" on his ability to receive his mail. Jacob cited 42 U.S.C. § 1983 (2000) as the statute under which he was suing the Appellees. Second, Jacob alleged that as a result of holding his mail, the Appellees were liable to him for damages under the State Tort Claims Act, §§ 81-8,209 to 81-8,235 (Reissue 1996 & Cum. Supp. 2002). Third, Jacob sought a declaratory judgment under Neb. Rev. Stat. § 25-21,149 (Reissue 1995) for a declaration of his rights to receive the mail withheld from him. Fourth, Jacob sought a declaratory judgment under Neb. Rev. Stat. § 84-911 (Reissue 1999) and § 25-21,149 to declare rule 005.01 "invalid for violating [Jacob's] 1st Amendment right to receive incoming mail." Fifth, Jacob sought a declaratory judgment under §§ 84-911 and 25-21,149 for a declaration of his right to "the remedy of a Petition for a Declaratory Order pursuant to Neb.Rev. Stat. §84-912.01 [(Reissue 1999)] and for the [Appellees'] violation of [Jacob's] right to that remedy."
On September 1, 2000, the Appellees filed a demurrer. The judge's minutes indicate that on January 17, 2001, the Appellees' demurrer was sustained. We do not have the court's order sustaining the demurrer in the record before us, but we do have the judge's minutes. The judge's minutes indicate that the Appellees' demurrer as sustained in part because Jacob had not shown that he exhausted his administrative remedies. On February 21, Jacob filed his first amended petition. As stated above, Casey, Predmore, and P.R. (name unknown) were added as parties. The factual allegations in the first amended petition are essentially the same as those contained in the initial petition. Jacob attached to the first amended petition copies of all of his grievances in an apparent attempt to show that he had exhausted all of his administrative remedies.
The five causes of
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