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Robinson v. Houston

Supreme Court of Nebraska

January 19, 2018

Danny R. Robinson, Jr., appellant,
v.
Robert Houston et al., APPELLEES.

         1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.

         2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         3. Affidavits: Waiver. A litigant lacking sufficient funds to pay the costs, fees, or security may apply to the court to proceed in forma pauperis, having the otherwise required costs, fees, or security waived.

         4. Affidavits. Under Neb. Rev. Stat. § 25-2301.02 (Reissue 2016), a party's application to proceed in forma pauperis must generally be granted unless an objection is raised by another party or the court that the applicant either has sufficient funds to pay costs, fees, or security or is asserting legal positions which are frivolous or malicious.

         5. Affidavits: Appeal and Error. Where an objection to an application to proceed in forma pauperis is sustained, Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) provides the applicant the right to immediately appeal the denial.

         6. Statutes: Appeal and Error. Unless a statute provides for an appeal, such right does not exist.

         7. Statutes: Intent. When interpreting a statute, the starting point and focus of the inquiry is the meaning of the statutory language, understood in context.

         8. Statutes. Silence can be a meaningful indicator of statutory meaning.

         9. __ . It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language.

         [298 Neb. 747] 10. Statutes: Appeal and Error. An appellate court does not consider a statute's clauses and phrases as detached and isolated expressions. Instead, the whole and every part of the statute must be considered in fixing the meaning of any of its parts.

         11. Affidavits: Appeal and Error. The right to interlocutory appeal of an in forma pauperis denial in Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2016) applies only to denials made pursuant to the two bases for denial set forth in that subsection.

         12. Statutes: Prisoners: Affidavits: Appeal and Error. There is no statutory basis for an interlocutory appeal of a denial of leave to proceed in forma pauperis under Neb. Rev. Stat. § 25-3401 (Reissue 2016).

         13. Judgments: Final Orders: Time: Appeal and Error. An appeal cannot be taken from a conditional order purporting to dismiss a pleading in the future upon the occurrence of an event.

         Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Appeal dismissed.

          Danny R. Robinson, Jr., pro se.

          Douglas J. Peterson, Attorney General, and James D. Smith for appellees.

          Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.

         INTRODUCTION

         In this appeal, we must determine whether an interlocutory appeal is authorized under Nebraska's "three strikes" prisoner litigation statute, [1] which prohibits a prisoner who has previously filed at least three frivolous civil actions from proceeding in forma pauperis (IFP) without leave of court. Because we conclude that neither this statute nor the general IFP statute provides a right to interlocutory appeal of a "three strikes'' ...


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