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10/03/2017 09:14 AM CDT




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                                    MUMIN v. NEBRASKA DEPT. OF CORR. SERVS.
                                              Cite as 25 Neb. App. 89




                       Dukhan Mumin, appellant, v. Nebraska Department
                             of Correctional Services, appellee.

                                Dukhan Mumin, appellant, v.
                                State of Nebraska, appellee.
                                                         ___ N.W.2d ___

                                        Filed October 3, 2017.     Nos. A-16-618, A-16-619.

                1.	 Affidavits: Appeal and Error. A district court’s denial of in forma
                     pauperis under Neb. Rev. Stat. §§ 25-2301.02 and 25-3401 (Reissue
                     2016) is reviewed de novo on the record based on the transcript of the
                     hearing or written statement of the court.
                2.	 Affidavits. The procedure for in forma pauperis is generally governed
                     by Neb. Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016).
                3.	 Affidavits: Prisoners. In forma pauperis applications filed in prisoner
                     litigation cases are subject to a more restrictive statute, Neb. Rev. Stat.
                     § 25-3401 (Reissue 2016), which must be read in conjunction with Neb.
                     Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016).
                 4.	 ____: ____. Pursuant to Neb. Rev. Stat. § 25-3401(2)(a) (Reissue 2016),
                     a prisoner who has filed three or more civil actions, commenced after
                     July 19, 2012, that have been found to be frivolous by a court of this
                     state or a federal court for a case originating in this state shall not be
                     permitted to proceed in forma pauperis for any further civil actions with-
                     out leave of court. A court shall permit the prisoner to proceed in forma
                     pauperis if the court determines that the person is in danger of serious
                     bodily injury.
                5.	 Affidavits: Prisoners: Appeal and Error: Words and Phrases.
                     Pursuant to Neb. Rev. Stat. § 25-3401(1)(a) (Reissue 2016), civil
                     action means a legal action seeking monetary damages, injunctive
                     relief, declaratory relief, or any appeal filed in any court in this state
                     that relates to or involves a prisoner’s conditions of confinement. Civil
                     action does not include a motion for postconviction relief or petition for
                     habeas corpus relief.
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                 25 Nebraska A ppellate R eports
               MUMIN v. NEBRASKA DEPT. OF CORR. SERVS.
                         Cite as 25 Neb. App. 89

 6.	 Prisoners: Words and Phrases. Pursuant to Neb. Rev. Stat.
     § 25-3401(1)(b) (Reissue 2016), conditions of confinement means any
     circumstance, situation, or event that involves a prisoner’s custody,
     transportation, incarceration, or supervision.
 7.	 Trial: Attorneys at Law: Evidence. Statements by an attorney are not
     treated as evidence.
 8.	 Judicial Notice: Records. The law requires that papers requested to be
     judicially noticed be marked, identified, and made a part of the record;
     testimony must be transcribed, properly certified, marked, and made a
     part of the record.
 9.	 Rules of Evidence: Judicial Notice. Neb. Evid. R. 201, Neb. Rev. Stat.
     § 27-201 (Reissue 2016), grants a judge or court the authority to take
     judicial notice of adjudicative facts, whether requested or not.
10.	 Judicial Notice. Care should be taken by the court to identify the fact it
     is noticing, and its justification for doing so.

  Appeals from the District Court for Lancaster County:
Robert R. Otte, Judge. Reversed and remanded for further
proceedings.

   Dukhan Mumin, pro se.

   No appearance for appellees.

   Moore, Chief Judge, and Pirtle and Bishop, Judges.

   Bishop, Judge.
   In case No. A-16-618 and case No. A-16-619, Dukhan
Mumin, pro se, appeals the orders of the district court for
Lancaster County denying his requests to proceed in forma
pauperis (IFP) in the underlying civil actions. The court has
consolidated these cases for disposition. For the reasons that
follow, we reverse, and remand for further proceedings.

                        BACKGROUND
   On March 16, 2016, Mumin, pro se, filed an affidavit and
application to proceed IFP in Lancaster County District Court
case No. CI 16-911 (now case No. A-16-618). The underlying
action in that case is a civil complaint filed by Mumin against
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            MUMIN v. NEBRASKA DEPT. OF CORR. SERVS.
                      Cite as 25 Neb. App. 89

the Nebraska Department of Correctional Services pursuant to
the State Tort Claims Act, Neb. Rev. Stat. § 81-8,209 et seq.
(Reissue 2014), for allegedly adding 5 years to Mumin’s dis-
charge date in a criminal sentence.
   On March 21, 2016, Mumin, pro se, filed an affidavit and
application to proceed IFP in Lancaster County District Court
case No. CI 16-977 (now case No. A-16-619). The underlying
action in that case is a civil complaint filed by Mumin against
the State of Nebraska pursuant to the Uniform Declaratory
Judgments Act, Neb. Rev. Stat. § 25-21,149 et seq. (Reissue
2016), challenging the alleged denial of good time credit and
Mumin’s habitual criminal mandatory minimum sentence.
   On March 25, 2016, the State, as “an interested party to this
suit, and appearing by way of special appearance only,” filed
identical objections to IFP status in both cases. The State, rep-
resented by the Attorney General’s office, alleged that Mumin
was a prisoner who had three or more civil actions deemed
frivolous by the courts of this state and was no longer allowed
to proceed IFP pursuant to Neb. Rev. Stat. § 25-3401(2)(a)
(Reissue 2016). Section 25-3401(2)(a) states:
      A prisoner who has filed three or more civil actions, com-
      menced after July 19, 2012, that have been found to be
      frivolous by a court of this state or a federal court for
      a case originating in this state shall not be permitted to
      proceed in forma pauperis for any further civil actions
      without leave of court. A court shall permit the prisoner
      to proceed in forma pauperis if the court determines that
      the person is in danger of serious bodily injury.
The State referred the court to
      three or more civil actions, commenced after July 19,
      2012, that have been found frivolous by a court of this
      state. They are:
         a. Mumin v. Flowers, et al., in the Lancaster County
      District Court, case number CI 14-4333;
         b. Mumin v. Gage, in the Johnson County District
      Court, case number CI 13-121;
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            MUMIN v. NEBRASKA DEPT. OF CORR. SERVS.
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         c. Mumin v. Gage, in the Johnson County District
      Court, case number CI 14-59.
The State alleged that because Mumin had received “three
‘strikes,’” the district court should deny Mumin’s applica-
tions to proceed IFP and allow the cases to proceed only after
Mumin has paid the necessary filing fees.
   A hearing on the State’s objections to IFP was held on
April 21, 2016. Mumin, pro se, appeared telephonically. The
State, represented by the Attorney General’s office, argued
that under § 25-3401, if an inmate has filed three or more
civil actions that have been deemed frivolous, that inmate
is subjected to “heightened scrutiny” by courts. According
to the State, Mumin had five frivolous findings of courts by
this state:
      Into the record I will just say that is Mumin v. Gage,
      from Johnson County District Court, at CI13-121; Mumin
      v. Gage, Johnson County again, at CI14-59; Mumin v.
      Flowers, at Lancaster County District Court, at CI14-4333;
      Mumin v. Frakes, in Johnson County, that’s CI16-34; and
      Mumin v. Taylor, that’s at Lancaster County District
      Court, CI16-76.
Mumin argued that “none of those cases that he just mentioned
would even qualify under the statute” because “[t]here has
been no summons issued on any of those cases. Those cases
have not even . . . commenced under statute or even under the
case law.” He further argued, “the other habeas corpus actions,
they don’t qualify under the statutes or case law as well.”
   On June 6, 2016, the district court filed identical orders in
both cases sustaining the State’s objections to IFP. The court
said that “[a]ll totaled, the State points to five cases filed by
[Mumin] that have been found to be frivolous by a court of
this state.” After setting forth the five cases noted by the State
at the April 21 hearing, the court found that “since July 2012,
[Mumin] has brought three or more cases, while incarcer-
ated, which were dismissed for being frivolous.” The court
sustained the State’s objections and said that Mumin “shall
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have thirty days from the date of this order to pay the filing
fees in this matter, or the matter shall be dismissed without
further notice.”
   Mumin now appeals. The State did not file briefs in response
to Mumin’s appeals.

                 ASSIGNMENTS OF ERROR
   Mumin assigns that the district court erred by (1) receiv-
ing statements by the State without a proper offer pursuant to
the Nebraska Evidence Rules, (2) ruling that habeas petitions
qualified as “strikes,” and (3) ruling that the cases filed by
Mumin in the lower court were “commenced.”

                  STANDARD OF REVIEW
   [1] A district court’s denial of in forma pauperis under
Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) and § 25-3401
is reviewed de novo on the record based on the transcript
of the hearing or written statement of the court. See Gray v.
Nebraska Dept. of Corr. Servs., 24 Neb. App. 713, 898 N.W.2d
380 (2017).

                           ANALYSIS
IFP Statutes.
   [2] The procedure for IFP is generally governed by Neb.
Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016). Pursuant to
those statutes, any county or state court, except the Nebraska
Workers’ Compensation Court, may authorize the commence-
ment, prosecution, defense, or appeal therein, of a civil or
criminal case IFP. § 25-2301.01. An application to proceed
IFP shall include an affidavit stating that the affiant is unable
to pay the fees and costs or give security required to proceed
with the case; the nature of the action, defense, or appeal;
and the affiant’s belief that he or she is entitled to redress. Id.
Section 25-2301.02 states that an application to proceed IFP
“shall be granted unless there is an objection that the party fil-
ing the application (a) has sufficient funds to pay costs, fees,
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or security or (b) is asserting legal positions which are frivo-
lous or malicious.” The objection may be made by the court
on its own motion or on the motion of any interested person.
Id. The motion objecting to the application shall specifically
set forth the grounds of the objection, and an evidentiary hear-
ing shall be conducted on the objection unless the objection
is by the court on its own motion or on the grounds that the
applicant is asserting legal positions which are frivolous or
malicious. Id. If an objection is sustained, the party filing the
application shall have 30 days after the ruling or issuance of
the statement to proceed with an action or appeal upon pay-
ment of fees, costs, or security. Id.
   [3-6] While the above statutes govern IFP proceedings gen-
erally, IFP applications filed in prisoner litigation cases are
subject to a more restrictive statute, § 25-3401, which must
be read in conjunction with §§ 25-2301 to 25-2310. Section
25-3401(2)(a) states:
      A prisoner who has filed three or more civil actions,
      commenced after July 19, 2012, that have been found to
      be frivolous by a court of this state or a federal court for
      a case originating in this state shall not be permitted to
      proceed in forma pauperis for any further civil actions
      without leave of court. A court shall permit the prisoner
      to proceed in forma pauperis if the court determines that
      the person is in danger of serious bodily injury.
Section 25-3401(1)(a) states that, for purposes of this section,
“[c]ivil action means a legal action seeking monetary dam-
ages, injunctive relief, declaratory relief, or any appeal filed in
any court in this state that relates to or involves a prisoner’s
conditions of confinement. Civil action does not include a
motion for postconviction relief or petition for habeas corpus
relief.” (Emphasis supplied.) And “[c]onditions of confinement
means any circumstance, situation, or event that involves a
prisoner’s custody, transportation, incarceration, or supervi-
sion.” § 25-3401(1)(b).
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            MUMIN v. NEBRASKA DEPT. OF CORR. SERVS.
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Legal Application to Mumin.
   In its March 2016 objection to IFP status, the State, citing to
§ 25-3401(2)(a), alleged that Mumin has had three or more civil
cases deemed frivolous by the courts of this state, and because
he had received “three ‘strikes,’” the court should deny IFP.
Referenced in the State’s objection were three previous dis-
trict court cases initiated by Mumin, the orders of which were
attached to the objection. Those cases were: Johnson County
District Court case No. CI 13-121 (does not specify nature of
underlying case, but states Mumin’s motion to proceed IFP
was denied because legal positions advanced by him were
frivolous); Johnson County District Court case No. CI 14-59
(states that Mumin’s petition for issuance of protection order
was denied as frivolous and meritless); and Lancaster County
District Court case No. CI 14-4333 (denied Mumin’s applica-
tion to proceed IFP because Mumin’s “Amended Complaint on
Official Bonds” was malicious and frivolous).
   [7,8] At the hearing in April 2016, without presenting
evidence or requesting that the district court take judicial
notice, the State cited the above cases referenced in its March
objection, as well as Johnson County District Court case
No. CI 16-34 and Lancaster County District Court case No.
CI 16-76, and argued that all five had “frivolous findings of
courts by this state.” But, statements by an attorney are not
treated as evidence. See In re Interest of Lawrence H., 16 Neb.
App. 246, 743 N.W.2d 91 (2007) (attorney’s assertions at trial
are not to be treated as evidence). Additionally, even if the
State had asked the court to take judicial notice of those cases,
the law requires that papers requested to be judicially noticed
be marked, identified, and made a part of the record; testimony
must be transcribed, properly certified, marked, and made a
part of the record. See Everson v. O’Kane, 11 Neb. App. 74,
643 N.W.2d 396 (2002).
   [9,10] Even though the State did not ask the district court
to take judicial notice of the five previous cases, Neb. Evid.
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R. 201, Neb. Rev. Stat. § 27-201 (Reissue 2016), grants a
judge or court the authority to take judicial notice of adjudica-
tive facts, whether requested or not. Section 27-201 provides
in part:
         (1) This rule governs only judicial notice of adjudica-
      tive facts.
         (2) A judicially noticed fact must be one not subject
      to reasonable dispute in that it is either (a) generally
      known within the territorial jurisdiction of the trial court
      or (b) capable of accurate and ready determination by
      resort to sources whose accuracy cannot reasonably be
      questioned.
         (3) A judge or court may take judicial notice, whether
      requested or not.
         ....
         (6) Judicial notice may be taken at any stage of the
      proceeding.
“[A]s a subject for judicial notice, existence of court records
and certain judicial action reflected in a court’s record are, in
accordance with Neb. Evid. R. 201(2)(b), facts which are capa-
ble of accurate and ready determination by resort to sources
whose accuracy cannot be reasonably questioned.” Gottsch v.
Bank of Stapleton, 235 Neb. 816, 835, 458 N.W.2d 443, 455
(1990). “Thus, a court may judicially notice existence of its
records and the records of another court, but judicial notice of
facts reflected in a court’s records is subject to the doctrine of
collateral estoppel or of res judicata.” Id. at 836, 458 N.W.2d at
456. See, also, State v. Dandridge, 255 Neb. 364, 585 N.W.2d
433 (1998); Dairyland Power Co-op v. State Bd. of Equal., 238
Neb. 696, 472 N.W.2d 363 (1991). Furthermore, care should
be taken by the court to identify the fact it is noticing, and its
justification for doing so. Strunk v. Chromy-Strunk, 270 Neb.
917, 708 N.W.2d 821 (2006).
   In its order, after setting forth the five cases noted by the
State at the April 2016 hearing, the court found that “since
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July 2012, [Mumin] has brought three or more cases, while
incarcerated, which were dismissed for being frivolous.” The
district court did not specifically state that it was taking
judicial notice of the cases cited by the State. Even if it did
take judicial notice of those cases, the district court’s order
does not address other factors necessary to determine whether
§ 25-3401(2)(a) should bar Mumin from IFP status. First,
the district court simply stated that Mumin brought “three or
more” cases which were dismissed for being frivolous; it did
not specifically state which cases were dismissed for being
frivolous, or whether all of them were dismissed as frivolous.
Second, the district court addressed only the “frivolousness”
of previous actions, but § 25-3401 requires additional con-
siderations to determine whether those actions were “civil
actions” as defined by that statute. Section 25-3401(1)(a)
states that, for purposes of this section, a civil action means
“a legal action seeking monetary damages, injunctive relief,
declaratory relief, or any appeal filed in any court in this state
that relates to or involves a prisoner’s conditions of confine-
ment. Civil action does not include a motion for postconvic-
tion relief or petition for habeas corpus relief.” The district
court did not make determinations as to whether any or all
of Mumin’s previous actions were “relate[d] to or involve[d]
a prisoner’s conditions of confinement” as further defined in
§ 25-3401(1)(b), were motions for postconviction relief, or
were petitions for habeas corpus relief. Although Mumin does
not raise the issue of “conditions of confinement” in his cur-
rent appeals, this court may, at its option, notice plain error.
See Gray v. Nebraska Dept. of Corr. Servs., 24 Neb. App. 713,
898 N.W.2d 380 (2017).
   We note that four of the five cases relied on by the State
and the district court were appealed, and we can certainly take
judicial notice of our own records. See Burns v. Burns, 293
Neb. 633, 879 N.W.2d 375 (2016). Having taken such judicial
notice, we have determined that two of the previous cases
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involved petitions for habeas corpus relief and are therefore
excluded from being civil actions for purposes of § 25-3401;
those two cases are Johnson County District Court case No.
CI 13-121, see Mumin v. Gage, 21 Neb. App. xlvi (No.
A-13-1084, Mar. 17, 2014) (disposed of without opinion),
and Johnson County District Court case No. CI 16-34, see
Mumin v. Frakes, No. A-16-327, 2017 WL 672286 (Neb. App.
Feb. 21, 2017) (selected for posting to court website). A civil
action does not include a petition for habeas corpus relief. See
§ 25-3401(1)(a). See, also, Gray, supra.
   The other two cases appealed were Lancaster County
District Court case No. CI 14-4333 (appellate case No.
A-15-248, unpublished memorandum opinion filed on January
5, 2016) and Lancaster County District Court case No.
CI 16-76 (appellate case No. A-16-478, disposed of without
opinion on August 9, 2016). In case No. A-16-478, Mumin
and other inmates filed a complaint alleging violations of
their civil rights while incarcerated. As to Mumin specifically,
he alleged discriminatory, targeted, and retaliatory searches
of his prison cell. The complaint, which appears to relate
to or involve his conditions of confinement, was dismissed
by the Lancaster County District Court as frivolous; the
appeal was dismissed for failure to file a brief. In case No.
A-15-248, Mumin filed an “Amended Complaint on Official
Bonds” against multiple “public officer[s],” the county, and
an insurer of the official bonds, alleging improprieties at his
criminal trial. The Lancaster County District Court dismissed
Mumin’s application to proceed IFP in that case after finding
the amended complaint was “malicious and frivolous,” a deci-
sion that was affirmed by this court on appeal. From what we
can glean from our appellate record, while there was a find-
ing of frivolousness in case No. A-15-248, that action does
not appear to relate to Mumin’s “conditions of confinement”
as required by the definition of civil actions for purposes of
§ 25-3401. See § 25-3401(1)(a) and (b). If it does not relate to
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“conditions of confinement,” then it cannot be a civil action
for purposes of § 25-3401.
   Finally, we note that Johnson County District Court case
No. CI 14-59 was not appealed. Although the Johnson County
District Court’s order was attached to the State’s March 2016
objection, that order merely shows that Mumin’s petition for
issuance of a protection order was denied as “frivolous and
meritless.” There is nothing in our record to show whether
Mumin’s petition for a protection order was related to or
involved Mumin’s conditions of confinement. Having previ-
ously found that two cases cited by the State and the dis-
trict court involved petitions for habeas corpus relief and are
excluded from being civil actions for purposes of § 25-3401,
this protection order case could be critical to determin-
ing whether Mumin has filed “three or more civil actions.”
However, we are unable to fully review it.
   This case highlights the importance of creating a complete
record at the trial court level to enable appellate review. At
the objection hearing in April 2016, the State simply refer-
enced five previous actions filed by Mumin and argued that
all five had “frivolous findings of courts by this state.” But,
the State did not present evidence or ask the court to take
judicial notice of those cases, which would have required
papers to be marked, identified, and made a part of the record.
See Everson v. O’Kane, 11 Neb. App. 74, 643 N.W.2d 396
(2002). And in its order, the district court, assuming it did
take judicial notice of the previous cases, did not specify
exactly what was being judicially noticed. Neither the State
nor the district court in this case focused on anything other
than the frivolous nature of Mumin’s previous actions, even
though § 25-3401 requires additional considerations as we
have noted in this opinion.
   After our review of the case, we cannot determine whether
Mumin has filed the requisite three or more civil actions
for purposes of § 25-3401 which would prohibit him from
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proceeding IFP in further actions. We therefore reverse, and
remand for further proceedings. As noted above, Johnson
County District Court case No. CI 13-121 (appellate case
No. A-13-1084) and Johnson County District Court case No.
CI 16-34 (appellate case No. S-16-327) both involved peti-
tions for habeas corpus relief and do not count as civil actions
for purposes of § 25-3401. That leaves only three previ-
ous actions for consideration under § 25-3401. Accordingly,
on remand, the district court will need to further address
Johnson County District Court case No. CI 14-59; Lancaster
County District Court case No. CI 14-4333 (appellate case
No. A-15-248) (although it appears this case does not relate to
Mumin’s “conditions of confinement,” we leave that determi-
nation for the district court to further explore on remand); and
Lancaster County District Court case No. CI 16-76 (appellate
case No. A-16-478). If, after reviewing these three cases the
district court determines that they satisfy the requirements of
§ 25-3401, then the court should once again deny Mumin’s
applications to proceed IFP under this statute.
   However, if the district court determines that one or more
of those three cases does not qualify as a civil action for pur-
poses of § 25-3401, or was not found to be frivolous, then
IFP cannot be denied on the basis of § 25-3401(2)(a). That
would not preclude the district court from denying Mumin’s
applications to proceed IFP should it be determined that the
legal positions asserted by Mumin in the current actions are
frivolous or malicious, or there are other reasons the applica-
tions should be denied pursuant to § 25-2301.02. See Gray
v. Nebraska Dept. of Corr. Servs., 24 Neb. App. 713, 898
N.W.2d 380 (2017).
   For the sake of completeness, we note that in case No.
A-16-618 and case No. A-16-619, Mumin also asserts that
the district court erred in finding that the previous cases were
“commenced.” See § 25-3401(2)(a). Having already found the
need to reverse, and remand for further proceedings, we elect
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to not consider Mumin’s assigned error regarding when an
action is deemed to have been “commenced” for purposes of
§ 25-3401. See Gray, supra (appellate court is not obligated to
engage in analysis that is not necessary to adjudicate case and
controversy before it). The issue of commencement may be
addressed by the district court on remand if necessary.

                       CONCLUSION
   For the reasons stated above, we reverse, and remand for
further proceedings consistent with this opinion.
	R eversed and remanded for
	                               further proceedings.
