898 N.W.2d 380
Neb. Ct. App.2017Background
- Graylin Gray, a prisoner, sought in forma pauperis (IFP) status in two Lancaster County cases (CI 16-184 and CI 16-1373).
- The State moved to reconsider IFP grants in CI 16-184 under Neb. Rev. Stat. § 25-3401(2)(a), asserting Gray had three prior "frivolous" actions (CI 13-143, CI 14-866, CI 15-94) and thus could not proceed IFP without leave of court.
- The district court took judicial notice of those prior orders, found Gray had three strikes, and revoked/denied IFP; Gray moved for reconsideration and appealed; the court denied reconsideration and Gray appealed (A-16-482).
- In CI 16-1373 the district court denied IFP by relying on its CI 16-184 finding; Gray appealed that denial as well (A-16-590).
- On appeal, the Nebraska Court of Appeals examined § 25-3401(1)(a), which defines "civil action" and expressly excludes habeas corpus petitions from being counted as civil actions for strike purposes.
- The court concluded at least one of the cited prior dismissals (CI 14-866) originated as a habeas petition and therefore could not be counted as a strike; it reversed both denials and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior dismissals counted as "civil actions" (strikes) under § 25-3401(2)(a) | Gray: some cited prior actions were habeas petitions and thus excluded; some appeals pending or fees unpaid, so they shouldn’t count | State: three prior actions were found frivolous and qualify as strikes, barring IFP | Reversed — statute explicitly excludes habeas petitions; at least one cited case was a habeas petition and cannot be a strike |
| Whether district court properly applied § 25-3401 in CI 16-1373 by relying on CI 16-184 | Gray: CI 16-184’s strike determination was erroneous, so CI 16-1373’s denial based on it is also erroneous | State: CI 16-184 determination established the strikes; CI 16-1373 reliance was proper | Reversed — CI 16-1373 relied on an erroneous CI 16-184 finding, so its denial was also erroneous |
| Whether the court should decide "commencement" timing for strikes after July 19, 2012 | Gray: argued some actions were not properly commenced after statute effective date | State: contended actions were commenced and qualify | Court: did not reach this issue because reversal on habeas exclusion resolved the appeals |
| Whether district court may still deny IFP on other grounds (frivolous/malicious filings) | Gray: sought IFP | State: could argue frivolousness under other statutes | Court: district court may still deny IFP under § 25-2301.02 if filings are frivolous or malicious; remand for further proceedings |
Key Cases Cited
- State v. Ely, 295 Neb. 607 (standard of review for IFP denial)
- Cain v. Custer County Bd. of Equal., 291 Neb. 730 (plain error doctrine)
- State v. Raatz, 294 Neb. 852 (statutory interpretation principles)
- Andrews v. King, 398 F.3d 1113 (9th Cir.) (habeas dismissals and ‘‘strikes’’ discussion)
- State v. Carter, 292 Neb. 16 (district court may deny IFP for frivolous or malicious filings)