Mumin v. Nebraska Dept. of Corr. Servs.
25 Neb. Ct. App. 89
Neb. Ct. App.2017Background
- Pro se inmate Dukhan Mumin filed two civil suits in Lancaster County seeking tort and declaratory relief related to prison sentence computation and good-time credit.
- The State objected to Mumin’s in forma pauperis (IFP) applications under Neb. Rev. Stat. § 25-3401, arguing Mumin had three or more prior frivolous "strikes" and thus could not proceed IFP without leave of court.
- The State relied on five prior actions it claimed had been deemed frivolous; the district court sustained the objection and ordered Mumin to pay filing fees within 30 days or face dismissal.
- At the IFP hearing the State made factual assertions about prior cases but did not formally introduce court records or request judicial notice; the district court’s order did not identify which facts were judicially noticed or analyze whether prior matters met § 25-3401’s definition of "civil action."
- On appeal, this court held that two of the cited prior matters were habeas petitions (excluded from § 25-3401’s definition of civil action) and that the record was otherwise insufficient to determine whether Mumin had the requisite three qualifying frivolous civil actions; the court reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court improperly considered State counsel’s unsworn statements as evidence | Mumin: Statements weren’t evidence and State failed to properly offer or mark records for judicial notice | State: Court may rely on prior court findings to identify frivolous suits | Court: Attorney statements alone aren’t evidence; judicial notice requires records be identified and made part of the record and court must state what it notices and why; record was inadequate |
| Whether habeas petitions qualify as "civil actions" under § 25-3401 | Mumin: Habeas and postconviction matters do not count as civil actions under the statute | State: Prior dismissals, including habeas, count as strikes | Court: Habeas petitions are excluded by § 25-3401(1)(a); two cited matters were habeas and thus do not count |
| Whether prior cases were "commenced" for purposes of § 25-3401(2)(a) | Mumin: Some referenced matters were never commenced (e.g., no summons) | State: Prior filings constitute commenced actions for strike-counting | Court: Did not decide; declined to address commencement issue and left it to district court on remand |
| Whether § 25-3401(2)(a) supportably barred IFP here | Mumin: He lacked three qualifying frivolous civil actions; State did not prove otherwise | State: Mumin accrued three or more frivolous strikes, so IFP should be denied | Court: Record insufficient to show three qualifying frivolous civil actions; remanded for further factfinding; if three qualifying strikes are established, IFP denial may be reimposed; otherwise IFP cannot be denied under § 25-3401 |
Key Cases Cited
- Gottsch v. Bank of Stapleton, 235 Neb. 816 (court may judicially notice existence of court records and facts reflected therein)
- Burns v. Burns, 293 Neb. 633 (appellate court may take judicial notice of its own records)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (court should identify the fact noticed and justification)
- Dandridge, 255 Neb. 364 (judicial notice principles applied to court records)
- Dairyland Power Co-op v. State Bd. of Equal., 238 Neb. 696 (judicial notice of court records discussed)
- Everson v. O’Kane, 11 Neb. App. 74 (papers requested for judicial notice must be made part of the record)
- Gray v. Nebraska Dept. of Corr. Servs., 24 Neb. App. 713 (standard of review and treatment of prisoner IFP matters)