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Jacob v. Nebraska Department of Correctional Services

Court of Appeals of Nebraska

July 23, 2013

Steven M. Jacob, appellant,
v.
Nebraska Department of Correctional Services and Robert Houston, director, appellees.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge. Affirmed in part, and in part reversed and remanded for further proceedings.

Steven M. Jacob, pro se.

No appearance for appellees.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Riedmann, Judge.

INTRODUCTION

Steven M. Jacob appeals from the order of the district court for Lancaster County denying his motion to proceed in forma pauperis based on a finding that his petition is frivolous. On appeal, Jacob argues that contrary to the trial court's order, his action was not filed on behalf of another inmate and was not an attempt to elicit an opinion regarding someone else's conduct. We note that the appellees did not submit a brief on appeal.

We disagree with the trial court's determination that Jacob's action was filed on behalf of another inmate. However, upon our de novo review, we find that Jacob's complaint, insofar as he requests appellate review of the agency decision, is frivolous because it does not arise out of a contested case. To the contrary, we find his request for a declaratory judgment as to his rights under Neb. Rev. Stat. §§ 84-912.01 and 83-173 (Reissue 2008), while perhaps meritless, is not frivolous. We therefore affirm in part, and in part reverse and remand for further proceedings.

BACKGROUND

Jacob is an inmate at the Nebraska State Penitentiary. In June 2012, he witnessed another inmate, Russell Pittman, being ordered to leave the law library for engaging in the unauthorized practice of law. Pittman received a misconduct report in connection with the incident. In response to that incident, Jacob initiated an informal grievance proceeding with the Nebraska Department of Correctional Services (DCS) requesting a declaratory order interpreting DCS' rules regarding conduct in the law library and the unauthorized practice of law. Specifically, Jacob asked for responses to the following hypothetical situations:

(1) If I am in the law library and an inmate asks me about a point of law and I tell them of a case that decides or controls that point of law, have I violated [DCS'] rules, regulations, or orders? If I write the citation down on a piece of paper and give that to the other inmate, have I violated [DCS'] rules, regulations, or orders?
(2) If I am in the law library and another inmate there shows me their proposed postconviction filing and asks my advice on it, is providing my opinion (verbally or in writing) a violation of [DCS'] rules, regulations, or orders? If that inmate shows me their factual allegations and asks me to rewrite them if needed, am I in violation of [DCS'] rules, regulations, or orders if I (a) [tell] them how to rewrite their factual allegations, or (b) [rewrite] their factual allegations and give that to the inmate?

Dissatisfied with the responses he received from the warden, Jacob appealed to DCS' director and chief executive officer, asking ...


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