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.
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.
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.
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.
___. The proper procedure to obtain the return of seized
property is to apply to the court for its return.
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.
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
Neb.App. 245] Appeal from the District Court for Douglas
County: Duane C. Dougherty, Judge. Reversed and remanded for
Dortch, pro se.
appearance for appellees.
Pirtle, Riedmann, and Welch, Judges.
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 ...