Appeal from the District Court for Lancaster County: STEPHANIE F. STACY, Judge.
Paul Castonguay, Pro se.
Douglas J. Peterson, Attorney General, and Blake E. Johnson for appellees.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.
[291 Neb. 221] McCormack, J.
NATURE OF CASE
The issue presented is whether a trial court's sua sponte objection to venue is a proper basis under Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) for denying in forma pauperis status.
Paul Castonguay was convicted in Douglas County, Nebraska, pursuant to a plea, of first degree sexual assault. He subsequently filed a pro se complaint in Lancaster County, Nebraska, alleging an action under 42 U.S.C. § 1983 (2012). The complaint was brought against prosecutors, public defenders, and two attorneys whose capacity in the underlying criminal action is unclear from the complaint. Castonguay alleged that the defendants withheld exculpatory DNA evidence, and that the assistant attorney general lied about the existence of the DNA evidence in response to a request for discovery filed by Castonguay.
Castonguay sought money damages. The complaint does not make clear whether the defendants are being sued in their official or individual capacities. The DNA report attached to the complaint indicates no male DNA was found on the victim.
Castonguay moved for leave to proceed in forma pauperis. He attached to his motion an affidavit of poverty and a certification of the Nebraska Department of Correctional Services concerning his institutional account transactions. The district court, acting sua sponte, objected that venue was not proper in Lancaster County. On that basis, the court also objected sua sponte to the motion to proceed in forma pauperis. The court made " no comments on the merits of the lawsuit." After a hearing, the court denied Castonguay's motion to proceed in forma pauperis. The court reasoned that the complaint contained no allegations suggesting venue was proper in Lancaster County. The ...