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 March 2016 seeking IFP status: one under the State Tort Claims Act and one for declaratory relief challenging sentence/good-time credits.
- The State filed objections to IFP under Neb. Rev. Stat. § 25-3401(2)(a), arguing Mumin had three or more prior "frivolous" civil actions (strikes) and therefore could not proceed IFP without leave.
- The State referenced five prior actions as frivolous; the district court sustained the objections and ordered Mumin to pay filing fees within 30 days or face dismissal.
- At the IFP hearing the State made oral assertions about prior cases but did not introduce marked records or formally request judicial notice; Mumin contested that many referenced matters were not "commenced" civil actions or were habeas/postconviction petitions.
- On appeal, the Nebraska Court of Appeals reviewed de novo, examined the appellate record, and found at least two referenced matters were habeas petitions (excluded from § 25-3401), leaving insufficient record to conclude Mumin had the requisite three qualifying "civil actions" dismissed as frivolous.
- The Court reversed and remanded for the district court to make specific findings (identify which prior cases qualify as civil actions, which were dismissed as frivolous, and whether § 25-3401 bars IFP), cautioning that the trial court must create a complete record when relying on prior court records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court improperly considered the State's unsworn oral statements as evidence | Mumin: Statements were not evidence; prior cases not properly in record | State: Prior frivolous findings exist and justify denying IFP | Court: Attorney statements alone are not evidence; judicial notice requires records be identified and made part of record; remand for proper fact-finding |
| Whether habeas/postconviction petitions count as "civil actions" (strikes) under § 25-3401 | Mumin: Habeas/postconviction are excluded by statute and do not count | State: Prior actions are frivolous and count as strikes | Court: Habeas petitions do not count as civil actions under § 25-3401(1)(a); at least two prior matters were habeas and excluded |
| Whether the cited prior actions were "commenced" and thus count for § 25-3401 purposes | Mumin: Some referenced matters were never commenced or do not qualify | State: Prior filings qualify as commenced and frivolous | Court: Did not resolve commencement issue on appeal; remanded for district court to address if necessary |
| Whether § 25-3401(2)(a) bars Mumin from proceeding IFP in these cases | Mumin: Statute does not apply because prior matters do not meet definition | State: Mumin has three or more qualifying frivolous civil actions post-July 19, 2012 | Court: Cannot determine from record that three qualifying strikes exist; remand for district court to evaluate which prior cases qualify and whether they were dismissed as frivolous; if not satisfied, IFP denial under § 25-3401 not warranted (other bases under § 25-2301.02 remain possible) |
Key Cases Cited
- Gray v. Nebraska Dept. of Corr. Servs., 24 Neb. App. 713 (IFP denial reviewed de novo and statutory interpretation of § 25-3401)
- Gottsch v. Bank of Stapleton, 235 Neb. 816 (judicial notice of court records and limits)
- Everson v. O’Kane, 11 Neb. App. 74 (records must be made part of the record to be judicially noticed)
- Strunk v. Chromy-Strunk, 270 Neb. 917 (court should identify facts it judicially notices and justify doing so)
- Burns v. Burns, 293 Neb. 633 (appellate court may take judicial notice of its own records)
- In re Interest of Lawrence H., 16 Neb. App. 246 (attorney statements are not evidence)
- Dairyland Power Co-op v. State Bd. of Equal., 238 Neb. 696 (judicial notice principles for court records)
- State v. Dandridge, 255 Neb. 364 (judicial notice of court records and related standards)