Npimnee v. FreemanNpimnee v. Freeman
2. Constitutional Law: Judgments. Except in those cases where the denial of in forma pauperis status would deny a defendant his or her constitutional right to appeal in a felony case, Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) allows the court, on its own motion, to deny in forma pauperis status on the basis that the legal positions asserted by the applicant are frivolous or malicious, provided that the court issue a written statement of its reasons, findings, and conclusions for denial.
3. Actions: Words and Phrases. A frivolous legal position is one wholly without merit, that is, without rational argument based on the law or on the evidence.
4. Federal Acts: Prisoners: Sexual Assault. The Prison Rape Elimination Act was not intended to establish a private cause of action for allegations of prison rape, sexual assault, or sexual abuse.
5. Actions: Pleadings: Notice. Nebraska is a notice pleading jurisdiction, and civil actions are controlled by a liberal pleading regime. A party is required to set forth only a short and plain statement of the claim showing the pleader‘s entitlement to relief and is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the claims asserted. The rationale for this liberal notice pleading standard is that when a party has a valid claim, he or she should recover on it regardless of a failure to perceive the true basis for the claim at the pleading stage.
6. Administrative Law: Appeal and Error. Under the doctrine of exhaustion of administrative remedies, one must generally exhaust
7. Federal Acts: Administrative Law: Prisoners. The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (2018), requires prisoners to exhaust administrative remedies before filing actions with respect to prison conditions under 42 U.S.C. § 1983 (2018) or any other federal law.
8. Constitutional Law: Civil Rights: Jurisdiction: States. The states have concurrent jurisdiction to entertain actions under 42 U.S.C. § 1983 (2018); however, as a result of the Supremacy Clause found in U.S. Const. art. VI, federal law is controlling, and state courts are required to follow federal precedent when hearing actions brought under § 1983.
9. Federal Acts: Administrative Law: Prisoners. The exhaustion requirement of the Prison Litigation Reform Act is an affirmative defense, and prisoners are not required to anticipate or specially plead or demonstrate exhaustion of administrative remedies in their complaints.
10. Administrative Law: Statutes: Jurisdiction. Where a statute does not expressly require the exhaustion of administrative remedies, exhaustion is not a jurisdictional prerequisite to instituting legal action.
11. Administrative Law. The exhaustion of administrative remedies doctrine presents a flexible concept which must be tailored to the circumstances of the particular case.
12. Administrative Law: Legislature: Intent. Legislative intent is to be used as a guidepost when applying the exhaustion of administrative remedies doctrine.
13. ____: ____: ____. In the absence of legislative direction, a court must exercise sound judicial discretion in determining whether to apply the exhaustion of administrative remedies doctrine to a case.
14. Actions: Administrative Law: Prisoners. Neb. Rev. Stat. § 25-3401 (Cum. Supp. 2024) prevents a prisoner from obtaining in forma pauperis status after the filing of three or more actions that relate to or involve the prisoner‘s conditions of confinement; it provides no direction regarding the exhaustion of administrative remedies.
BISHOP, Judge.
INTRODUCTION
Hope Npimnee, an inmate at the Tecumseh State Correctional Institution, appeals the order of the Lincoln County District Court denying his application to proceed in forma pauperis (IFP) on his complaint filed against fellow inmate Mitchell Freeman for “physical and sexual assault.” The district court denied Npimnee‘s IFP application as frivolous, finding it alleged a cause of action under the federal Prison Rape Elimination Act of 2003 (PREA) and failed “to establish compliance with and the exhaustion of all administrative remedies before resorting to the court system.” As such, the court determined that it had “no jurisdiction” until such compliance occurred and that the action was “clearly frivolous at this time.” Upon our de novo review, we conclude Npimnee was not required to exhaust administrative remedies before bringing his tort action against Freeman. We therefore reverse, and remand with direction.
BACKGROUND
On August 5, 2025, Npimnee filed a pro se complaint against Freeman, seeking $50,000 in damages for two separate assaults. The complaint alleged that in July 2023, Freeman attacked Npimnee in a prison shower and digitally penetrated Npimnee‘s anus. Npimnee‘s injuries were purportedly documented by a prison nurse. A PREA investigation was initiated immediately after the alleged shower assault, but prison officials concluded the attack was “unsubstantiated.” The complaint also alleged that in August, Freeman attacked Npimnee again, this time in view of prison cameras. Prison officials reportedly “dismissed” the second assault, claiming “they were unable to review [the] cameras.” Npimnee filed an affidavit and application to proceed IFP, which is not included in our record on appeal.
Npimnee appeals.
ASSIGNMENT OF ERROR
Npimnee assigns that the district court erred in denying his application to proceed IFP as frivolous.
STANDARD OF REVIEW
[1] A district court‘s denial of IFP status is reviewed de novo on the record based on the transcript of the hearing or written statement of the court. Jackson v. Rodriguez, 318 Neb. 657, 18 N.W.3d 408 (2025).
ANALYSIS
[2,3] Except in those cases where the denial of IFP status would deny a defendant his or her constitutional right to appeal in a felony case,
In this case, the district court followed the statutory procedure and determined that the complaint alleged a “cause of action under PREA” and was frivolous because Npimnee failed to exhaust his administrative remedies before filing suit. On appeal, Npimnee asserts the court‘s reasoning was erroneous, arguing that an exhaustion of administrative remedies is “only required when an inmate seeks to bring a claim against the prison.” Brief for appellant at 3.
[4] As a preliminary matter, we note that the PREA does not create a private cause of action for prisoners. Congress enacted the PREA in 2003 to address the problem of prison rape by creating a commission to study the issue and develop national standards for the detection, prevention, reduction, and punishment of prison rape. See
[5] In its order, the district court found that Npimnee alleged a “cause of action under PREA.” If that were true, then Npimnee‘s legal position would be wholly without merit because, as explained above, no such cause of action exists under that federal statutory scheme. However, a plain reading of the complaint demonstrates that Npimnee‘s claims against Freeman are grounded in Nebraska‘s common law of torts, not the PREA. When construing the complaint in this case, we remember that Nebraska is a notice pleading jurisdiction,
[6] However, the district court‘s denial of Npimnee‘s application for IFP status was also based on his apparent failure to “establish compliance with and the exhaustion of all administrative remedies before resorting to the court system.” The court explained that it had “no jurisdiction” to entertain Npimnee‘s action until such remedies were exhausted and a timely appeal was taken therefrom. Although the court cited no legal authority in making this determination, the doctrine of exhaustion of remedies is a well-established principle of administrative law. The exhaustion doctrine generally requires a party to “exhaust any available administrative remedies before one can seek judicial review.” Armstrong v. Clarkson College, 297 Neb. 595, 627, 901 N.W.2d 1, 25 (2017).
The posture of this case is unique in that Npimnee‘s complaint is not directed against any state government entity or official, nor is it based upon a deprivation of federal rights. Instead, Npimnee seeks to recover monetary damages from another prisoner under this state‘s common law of torts. We are unaware of any precedent in Nebraska concerning
There are Nebraska cases where an inmate has filed a civil action directly against individuals for matters unrelated to the inmate‘s incarceration. See, e.g., In re Estate of Newman, 25 Neb. App. 771, 913 N.W.2d 744 (2018) (inmate filed petition in existing informal probate action requesting formal probate of his father‘s will and order returning personal property to inmate; inmate was granted IFP, but denied appointment of counsel); Jacob v. Schlictman, 16 Neb. App. 783, 753 N.W.2d 361 (2008) (inmate serving life sentence commenced replevin action in district court against individual to recover items inmate claimed were wrongfully executed
In the present matter, the question is whether Nebraska law permits a tort action to be filed directly in the district court by one prisoner against another prisoner for monetary damages arising from a personal injury while in custody in a state correctional facility without first exhausting any administrative remedies.
We initially observe that incarceration, by itself, does not restrict a prisoner‘s access to the courts.
However, a prisoner‘s access to the courts can be limited in certain circumstances, such as requiring the exhaustion of administrative remedies before filing claims subject to the federal PLRA, as set forth above. See, also, e.g.,
[10] As previously noted, in the context of prison litigation, the exhaustion doctrine most often arises when a prisoner files a civil action against the DCS or prison officials, pursuant to
[11-13] It has been said that the exhaustion doctrine “presents a flexible concept which must be tailored to the circumstances of the particular case.” Vaccaro v. City of Omaha, 254 Neb. 800, 804, 579 N.W.2d 535, 538 (1998). When examining the practical application of the exhaustion doctrine, the Nebraska Supreme Court quoted the following language from McCarthy v. Madigan, 503 U.S. 140, 144, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992) (superseded by statute as stated in Booth v. Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001)), and found it instructive:
Of “paramount importance” to any exhaustion inquiry is congressional intent. [Citation omitted.] Where Congress specifically mandates, exhaustion is required. [Citations omitted.] But where Congress has not clearly required
exhaustion, sound judicial discretion governs. [Citations omitted.] Nevertheless, even in this field of judicial discretion, appropriate deference to Congress’ power to prescribe the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme.
As the above quotation indicates, legislative intent is to be used as a guidepost when applying the exhaustion doctrine. In the absence of legislative direction, a court must exercise sound judicial discretion in determining whether to apply the exhaustion doctrine to a case. See Vaccaro v. City of Omaha, supra. See, also, 73 C.J.S. Public Administrative Law and Procedure § 119 at 312 (2026) (“[i]f exhaustion of administrative remedies is not legislatively mandated, sound judicial discretion generally governs“).
In McCarthy v. Madigan, supra, the U.S. Supreme Court addressed whether a federal prisoner must resort to the internal grievance procedure promulgated by the Federal Bureau of Prisons (FBP) before initiating a suit solely for monetary damages, pursuant to the authority of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The Court concluded that a federal prisoner was not required to exhaust procedures adopted by the FBP before filing suit because (1) Congress had not expressly required exhaustion; (2) the grievance procedure adopted by the FBP imposed short, successive filing deadlines that created a high risk of forfeiture of a claim for failing to comply; (3) the grievance procedure did not expressly authorize an award of monetary damages; and (4) the prisoner‘s claim only tangentially implicated the FBP‘s authority to carry out the control and management of federal prisons. However, we do note that a few years after the McCarthy decision, Congress enacted the PLRA, which explicitly required exhaustion in this context. See Booth v. Churner, supra. But as mentioned
In the absence of state legislation, we find persuasive the Court‘s analysis in McCarthy in reaching its decision that the prisoner did not have to exhaust internal grievance procedures before filing a suit for money damages. When examining the factors considered in that case, we observe that the grievance procedure adopted by the DCS consists of rapid filing and response timetables.
Therefore, upon our de novo review, we find the factors from McCarthy v. Madigan, 503 U.S. 140, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992), strongly weigh against imposing a judicially created exhaustion requirement. While we recognize the potential issues that may arise from unfettered tort litigation between prisoners, the resolution of those concerns lies with the Legislature, not the courts.
Notably, even with a state statutory scheme similar to the federal PLRA, the Michigan case cited earlier nevertheless found that a “purely private tort lawsuit between prisoners is not a civil proceeding arising with respect to ‘conditions of confinement‘” and was not subject to the requirement of administrative exhaustion. Wilcox v. Wheatley, 342 Mich. App. 551, 554, 995 N.W.2d 594, 596 (2022). When considering its state‘s prison litigation reform act, the Michigan court noted that the exhaustion of administrative remedies was required for any “‘action concerning prison conditions,‘” id. at 554, 995 N.W.2d at 596, that sought “‘damages or equitable relief arising with respect to any conditions of confinement or the effects of an act or omission of government officials, employees, or agents in the performance of their duties,‘” id. at 553, 995 N.W.2d at 596. The Michigan court pointed out that the plaintiff inmate in that case was not alleging any act
In reaching its conclusion, the Michigan court observed that the federal PLRA, “which—much like Michigan‘s version—requires prisoners to exhaust their administrative remedies before filing suit.” Wilcox v. Wheatley, 342 Mich. App. at 559, 995 N.W.2d at 599. And because Michigan‘s prison litigation reform act was enacted after the federal PLRA, and because of how “closely the statutory language aligns,” the Michigan court examined federal court decisions for guidance on interpreting what constitutes conditions of confinement. Wilcox v. Wheatley, 342 Mich. App. at 561, 995 N.W.2d at 600. See Booth v. Churner, 206 F.3d 289, 294 (3d Cir. 2000) (conditions of confinement include complaints “such as those regarding cell overcrowding, poor prison construction, inadequate medical facilities, and incomplete law libraries,” meaning “clause relate[s] to the environment in which prisoners live, the physical conditions of that environment, and the nature of the services provided therein“); Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (“‘[c]onditions of confinement’ is not a term of art; it has a plain meaning,” and “quite simply encompasses all conditions under which a prisoner is confined for his term of imprisonment“; this includes solitary confinement, revocation of telephone or mail privileges, deprivation of exercise, medical care, or adequate food and shelter, and “other conditions that, if improperly imposed, could violate the Constitution“).
[14] Ultimately, the Michigan court concluded that the federal cases “help us discern what a conditions-of-confinement claim is not—a purely private civil suit between prisoners alleging no government action or omission.” Wilcox v. Wheatley, 342 Mich. App. at 562-63, 995 N.W.2d at 601 (emphasis omitted). It is worth noting that Nebraska‘s “three strikes” statute referenced earlier defines “[c]onditions of confinement” to mean “any circumstance, situation, or event that involves a prisoner‘s custody, transportation, incarceration,
CONCLUSION
For the foregoing reasons, we conclude Npimnee was not required to exhaust any administrative remedies before filing his tort action against Freeman. Accordingly, the complaint cannot be said to be frivolous on that basis, and we therefore reverse the district court‘s denial of Npimnee‘s application to proceed IFP. We remand the cause with direction to consider whether Npimnee is otherwise entitled to IFP status under
REVERSED AND REMANDED WITH DIRECTION.