Mumin v. Nebraska Dept. of Corr. Servs.
25 Neb. Ct. App. 89
Neb. Ct. App.2017Background
- Mumin, a prisoner proceeding pro se, filed two civil suits in Lancaster County seeking damages and declaratory relief related to sentence computation and good-time credit; he applied to proceed in forma pauperis (IFP).
- The State objected under Neb. Rev. Stat. § 25-3401(2)(a), asserting Mumin had three or more prior civil actions since July 19, 2012, that were found frivolous, which would bar further IFP filings without leave of court.
- The State referenced five prior proceedings it characterized as frivolous; the district court sustained the objection and ordered Mumin to pay filing fees within 30 days or face dismissal.
- At the objection hearing the State’s attorney orally recited prior cases but did not formally offer evidence or move for judicial notice; the attorney’s statements were not made part of the record.
- On appeal this court reviewed whether the district court properly applied § 25-3401, including whether prior proceedings qualified as "civil actions" (the statute excludes habeas and postconviction petitions) and whether the record supported finding three qualifying frivolous civil actions.
- The Court of Appeals reversed and remanded because the record did not establish that three qualifying frivolous "civil actions" existed; two prior cases were habeas petitions (excluded), and the remaining cases required further factual/legal examination by the district court.
Issues
| Issue | Mumin's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the district court could rely on the State attorney’s oral statements about prior cases without evidence or proper judicial notice | Mumin: attorney’s statements are not evidence and the State failed to make the prior case papers part of the record | State: oral recitation sufficed to show prior frivolous findings; court may take judicial notice | Held: Attorney statements are not evidence; judicial notice requires identification of records and they must be part of the record—court’s order failed to show proper notice or specify facts noticed |
| Whether habeas petitions count as "civil actions" under § 25-3401 | Mumin: habeas/postconviction actions do not qualify and thus should not count as strikes | State: treated prior habeas filings among other dismissals as strikes | Held: Habeas petitions are excluded by statute; two prior cited cases were habeas and therefore do not count as strikes |
| Whether the prior proceedings were "civil actions" relating to "conditions of confinement" under § 25-3401(1)(a)-(b) | Mumin: many prior matters do not involve conditions of confinement and thus do not qualify | State: at least three prior frivolous actions exist and qualify | Held: The record did not establish that the remaining prior frivolous findings involved conditions of confinement; district court must determine whether each prior action meets the statute’s definition |
| Whether § 25-3401(2)(a) bars Mumin from IFP in these current suits | Mumin: § 25-3401 does not apply because prior qualifying strikes were not proven | State: Mumin has three or more strikes; IFP should be denied | Held: Reversed and remanded — district court must further examine the specific prior cases (whether frivolous, commenced, and qualifying as civil actions); only if three qualifying strikes are proven may IFP be denied under § 25-3401 |
Key Cases Cited
- Gray v. Nebraska Dept. of Corr. Servs., 24 Neb. App. 713 (Neb. Ct. App.) (standard for de novo review of IFP denials in prisoner cases)
- Gottsch v. Bank of Stapleton, 235 Neb. 816 (Neb. 1990) (courts may judicially notice existence of court records but must take care what facts are noticed)
- Everson v. O'Kane, 11 Neb. App. 74 (Neb. Ct. App.) (requirements for making papers part of the record when requesting judicial notice)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (Neb. 2006) (court should identify the fact it is noticing and rationale)
- Burns v. Burns, 293 Neb. 633 (Neb. 2016) (appellate court may take judicial notice of its own records)