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Dortch v. City of Omaha

Court of Appeals of Nebraska

August 21, 2018

Joshua Dortch, appellant,
v.
City of Omaha and Douglas County Sheriff, appellees.

         1. Affidavits: Appeal and Error. A district court's denial of an application to proceed in forma pauperis under Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) is reviewed de novo on the record based on the transcript of the hearing or written statement of the court.

         2. 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.

         3. Jurisdiction: Search and Seizure: Property. Neb. Rev. Stat. § 29-818 (Reissue 2016) makes clear that if the matter in which the property or funds is seized results in a charge, the court in which such complaint was filed has exclusive jurisdiction for disposition of the property or funds.

         4. Search and Seizure: Property. While the government is permitted to seize evidence for use in investigation and trial, such property must be returned once criminal proceedings have concluded, unless it is contraband or subject to forfeiture.

         5. ___: ___. The proper procedure to obtain the return of seized property is to apply to the court for its return.

         6. Pleadings: Notice. Under the liberalized rules of notice pleading, a party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief.

         7. Affidavits: Judgments. When, pursuant to Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2016), a trial court denies leave to proceed in forma pauperis on its own motion on the ground that the party seeking leave is asserting legal positions which are frivolous or malicious, its order shall include the court's reasons for such conclusion.

          [26 Neb.App. 245] Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Reversed and remanded for further proceedings.

          Joshua Dortch, pro se.

          No appearance for appellees.

          Pirtle, Riedmann, and Welch, Judges.

          WELCH, JUDGE.

         INTRODUCTION

         Joshua Dortch appeals the district court's denial of his application to proceed in forma pauperis (IFP). The court denied Dortch's application based on its finding that the underlying replevin petition was a frivolous pleading. We find that the district court erred in denying Dortch's application to proceed IFP on the basis that it was frivolous without providing a written statement of its reasons, findings, and conclusions ...


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