S-17-0287, Danny Robinson v. Robert Houston et al.
District Court of Lancaster County, Hon. Robert Otte
Attorneys: Appellant: Danny Robinson (Pro se); Appellee: James D. Smith (A.G.’s Office)
Civil; Constitutional Prison Conditions Claim; Motion to Proceed In Forma Pauperis
Proceedings Below: The district court granted the appellant’s (Danny Robinson) motion to proceed in forma pauperis. The State filed a motion to reconsider this order because the appellant had “three strikes,” that is, he had filed three lawsuits that had been deemed to be friviolous and was thus barred from proceeding in forma pauperis under Neb. Rev. Stat. § 25-3401(2)(a). The district court granted the State’s motion. Robinson filed this interlocutory appeal.
Issues: Neb. Rev. Stat. § 25-3401 prohibits prisoners from proceeding in forma pauperis if they have filed three previous lawsuits deemed to be frivolous, subject to certain exceptions not applicable here. Neb. Rev. Stat. § 25-2301.02 provides the general standard for when a motion to proceed in forma pauperis should be denied. Subsection (1) provides that a party should be allowed to proceed in forma pauperis unless they can afford pay the costs or unless the party “is asserting legal positions which are frivolous or malicious.” Subsection (2) then provides for interlocutory review of the denial of motion to proceed in forma pauperis. The State argues that subsection (2) of section 25-2301.02 applies only denials that are based on the reasons set forth in subsection (1), and not to “three strikes” denials under § 25-3401. Because interlocutory appeals are not allowed of “three strikes” denials of in forma pauperis status under this reading, the State argues, the order denying Robinson in forma pauperis status is not a final order and thus there is no appellate jurisdiction.