                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         PAYNE V. GAGE


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                              CHRISTOPHER M. PAYNE, APPELLANT,
                                                V.

      BRIAN GAGE AND NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, APPELLEES.


                             Filed March 22, 2016.     No. A-15-703.


       Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
       Christopher M. Payne, pro se.
       Douglas J. Peterson, Attorney General, and James D. Smith for appellee.


       MOORE, Chief Judge, and IRWIN and BISHOP, Judges.
       BISHOP, Judge.
       Christopher M. Payne, an inmate at Tecumseh State Correctional Institution (Tecumseh),
appeals from the order of the district court for Lancaster County denying his application to proceed
in forma pauperis for purposes of commencing a civil action against Brian Gage, the warden of
Tecumseh, and the Nebraska Department of Correctional Services (Department). For the following
reasons, we affirm.
                                        BACKGROUND
        On June 4, 2015, Payne filed an “Application to Proceed without Payment of Fees,” in
which he alleged the following: (1) he was “an inmate”; (2) he earned “no wages, excepting inmate
subsidized pay of one dollar and twenty-one cents per day, five days per week, and the occassional
[sic] gift from family and friends to cover extrodinary [sic] expenses”; and (3) he had “no assets




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of value but owes child support in excess of five thousand dollars.” Payne’s application did not
include an affidavit as required by Neb. Rev. Stat. § 25-2301.01 (Reissue 2008).
         Along with his application to proceed in forma pauperis, Payne submitted his proposed
three-count complaint against Gage and the Department. Payne alleged violations of his right of
access to the courts, his right to counsel in criminal matters, and his right to be free from cruel and
unusual punishment. Specifically, Payne alleged that following an “incident” at Tecumseh on May
10, 2015, the institution had been on “a complete lockdown,” with inmates allowed out of their
cells once every 3 days for 20 minutes to shower, place phone calls, or clean their cells. Payne
alleged this limited his access to the law library, to copy and notary services, and to contact with
lawyers.
         On June 8, 2015, the district court entered an order reserving ruling on Payne’s request to
proceed in forma pauperis. The court found the application insufficient on the basis that it did not
include an affidavit. The order indicated the case would be dismissed in 21 days if Payne did not
file a proper affidavit. It also directed that “the affidavit must include a copy of six months of the
Applicant’s monthly institutional account transactions certified by the institution of incarceration.”
         On June 16, 2015, the district court clerk received a letter from Payne enclosing certified
copies of 6 months of his inmate account statements; no affidavit accompanied Payne’s letter. Also
on that date, on its own motion, the district court objected to Payne’s request to proceed in forma
pauperis, because it appeared Payne was able to pay the filing fee for his action. The court set the
matter for hearing.
         At the June 30, 2015, hearing, Payne participated telephonically. The court received into
evidence the 6 months of inmate account statements; it then questioned Payne regarding some of
the account transactions. Payne indicated the deposits he received in December 2014, which
totaled $450 not including his inmate pay of $49.50, consisted of Christmas and birthday gifts
from family and friends. Payne further indicated that because Tecumseh had been on lockdown
following a riot on May 10, 2015, he was not working but was receiving a “lay-in pay” of $1.21
per day 5 days per week, which totaled approximately $25 per month. Payne stated that 5% of his
pay went into a savings account for his release from prison, while 20% went to child support. So,
Payne estimated his net monthly income was approximately $17.
         Addressing various expenditures from his account during the past 6 months, Payne stated
the $45.92 he spent at “Weird Harold” was for music CDs. He explained that some of his family
members had wanted him to use his holiday gifts to purchase CDs. He also spent $33.69 at
“Walkenhorsts,” which Payne described as an “inmate supply company” from which he purchased
typewriter ribbons.
         At the conclusion of the hearing, the court took the matter under advisement. On July 8,
2015, the court entered an order denying Payne’s application to proceed in forma pauperis. The
court found that during the past 6 months, Payne had received approximately $1,138 in deposits
to his inmate account and had spent $1,046 on discretionary items. The court reasoned the
Department had an obligation to house, feed, and clothe Payne and also provide necessary hygiene
items. The court explained Payne could not “spend his money on discretionary items and then ask
the taxpayers . . . to pay for his litigation.” The court gave Payne 30 days to pay the filing fee and
costs or appeal the order.



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       Payne timely appealed, filing a notice of appeal and an “Application to Proceed In Forma
Pauperis and Affidavit of Poverty.” The district court granted Payne’s request to proceed in forma
pauperis on appeal.
                                    ASSIGNMENT OF ERROR
       Payne assigns that the district court erred in denying his application to proceed in forma
pauperis.
                                    STANDARD OF REVIEW
       A district court’s denial of in forma pauperis under Neb. Rev. Stat. § 25-2301.02 (Reissue
2008) is reviewed de novo on the record based on the transcript of the hearing or the written
statement of the court. Gray v. Kenney, 290 Neb. 888, 863 N.W.2d 127 (2015).
                                            ANALYSIS
        “In forma pauperis means the permission given by the court for a party to proceed without
prepayment of fees and costs or security.” Neb. Rev. Stat. § 25-2301 (Reissue 2008). Any person
who seeks to commence, prosecute, defend, or appeal a civil or criminal case in forma pauperis
must file an application requesting to proceed in that manner. § 25-2301.01. The application “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.” § 25-2301.01.
        Section 25-2301.02(1) permits a court to deny a party’s application to proceed in forma
pauperis where the party “(a) has sufficient funds to pay costs, fees, or security or (b) is asserting
legal positions which are frivolous or malicious.” An objection to the application may be made by
the court on its own motion, as it was here. § 25-2301.02(1). An evidentiary hearing on the
objection is to be conducted unless the objection is by the court on its own motion on the grounds
that the applicant is asserting legal positions that are frivolous or malicious. § 25-2301.02(1). If an
objection is sustained, the applicant has 30 days to proceed with an action or appeal upon payment
of fees, costs, or security. § 25-2301.02(1).
        Here, Payne filed an application to proceed in forma pauperis for purposes of commencing
his civil action against Gage and the Department; as noted, his application did not include the
affidavit required by § 25-2301.01. The district court objected to the application on its own motion
on grounds that it appeared Payne had sufficient funds to pay the fees and costs associated with
his action. Following a hearing, at which 6 months of Payne’s inmate account statements were
received into evidence, the court concluded Payne had sufficient funds and denied his application.
        Payne argues the district court erred in “considering his previous financial position, his
future financial position, and money received from others as gifts in denying his application.” Brief
for appellant at 3. He contends that rather than considering the gifts he receives from friends and
family, the court should have based its decision on his “actual income” and “current assets.” Id. at
4. Payne cites Fine v. Fine, 4 Neb. App. 101, 537 N.W.2d 642 (1995), for the proposition, in his
words, that “it is improper to rely upon income derived from friends and family in determining a
party’s ability to pay the costs associated with litigation.” Brief for appellant at 4. He argues he




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should not have to “forego spending his gift money ‘just in case’ he should need to sue in the
future.” Id. at 7.
         Our de novo review of the record leads us to the same conclusion as the district court. By
our calculations, Payne received a total of $1,134.56 in deposits during the 6-month period ending
on May 31, 2015. During the same period, Payne had a total of $560.17 in expenditures labeled
“Store 04 Charges.” In addition, he spent $45.92 at “Weird Harold,” $66.85 at “Triarco Arts,”
$115.24 at “Fire Mountain Gems,” $33.69 at “Walkenhorsts,” and $73.45 at “Union Supply.” The
highest balance of his account during the period was $356.01 at the beginning of January 2015. At
the end of May 2015, the balance was $102.26, although $56.59 of that balance was listed as “FR,”
apparently meaning frozen.
         Given that Payne received an average of $189.09 in monthly deposits to his inmate account
during the 6-month period ending on May 31, 2015, we agree with the district court that Payne
had sufficient funds to pay the fees and costs associated with his civil action. In Jacob v.
Schlichtman, 261 Neb. 169, 622 N.W.2d 852 (2001), the Nebraska Supreme Court agreed with the
district court’s finding that an inmate had sufficient funds to pay the costs of proceeding with his
civil case where he had an average monthly income of $115 and a balance in his inmate account
of $118.88. The average monthly deposits and account balances at issue here are similar to those
in Jacob.
         We find unpersuasive Payne’s argument that the gifts he receives from family and friends
do not constitute “income” for purposes of determining in forma pauperis status. The in forma
pauperis statutes are phrased in terms of ability to pay, not in terms of “income.” See § 25-2301.01
(requiring a statement that the affiant is “unable to pay” fees and costs); § 25-2301.02(1)
(permitting denial of application if the applicant “has sufficient funds to pay costs, fees, or
security”). Furthermore, Payne’s reliance on Fine v. Fine, 4 Neb. App. 101, 537 N.W.2d 642
(1995), to support his “gift” argument, is unavailing.
         In Fine, a party sought to appeal a divorce decree in forma pauperis, and the district court
denied the application. This court reversed, holding that the record showed the party could not pay
the costs of appeal within the required time. Id. We reasoned that the party’s liabilities exceeded
her assets, which included only $10 in her bank accounts, and we calculated the costs of the appeal
as totaling $1,578. Id. We noted that while the party’s “financial condition would have been better
if she had maintained the job she once held, if she had selected her friends more carefully, and if
she had not trusted someone who was not worthy of trust,” nothing in the record supported a
finding that the party had “voluntarily impoverished herself.” Id. at 107, 537 N.W.2d at 646.
         Contrary to Payne’s characterization of it, Fine does not stand for the proposition that gifts
from friends and family cannot be considered for purposes of denying in forma pauperis status. In
Fine, we noted we did “not believe a person must unsuccessfully resort to begging for a loan from
friends and family in order to qualify for in forma pauperis status.” Id. In the present case, neither
the district court’s denial of Payne’s application, nor our decision to affirm the denial, is based
upon Payne’s failure to request loans from friends and family. Instead, it is based in large part on
Payne’s voluntary decision to use the gifts he regularly received from friends and family to
purchase discretionary items like music CDs, rather than for the fees and costs of litigation.




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        Furthermore, Fine is distinguishable because it dealt with a party who involuntarily became
indigent and could not afford the costs of an appeal, which exceeded $1,500. Here, Payne
voluntarily chose to spend the funds in his inmate account on discretionary items. Moreover, given
that the deposits to his account totaled approximately $1,134 over a 6-month period, he would
have had to forego only a small percentage of his discretionary purchases to fund the fees and costs
required to proceed with his civil case. Notably, the current filing fees for a civil case in district
court total $82. See Filing Fees and Court Costs (eff. Jan. 1, 2016), Nebraska Judicial Branch,
available at https://supremecourt.nebraska.gov/4800/filing-fees-and-court-costs. The costs of
service by the Sheriff vary by county, but likely would be similar to the filing fees.
        In sum, we find no error in the district court’s denial of Payne’s application to proceed in
forma pauperis in his civil action against Gage and the Department. Because we affirm the district
court’s denial of Payne’s application on the basis that Payne had sufficient funds to pay the fees
and costs of his action, we need not address the State’s alternative arguments that denial of Payne’s
application was proper because he failed to file the required affidavit or because his action was
frivolous. Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015) (an appellate court need not
engage in an analysis that is not necessary to adjudicate the case and controversy before it).
                                          CONCLUSION
        For the foregoing reasons, we affirm the judgment of the district court for Lancaster
County. We note that Payne shall be permitted 30 days from the issuance of the mandate in this
case in which to pay the fees and costs necessary to proceed with his action; otherwise, the district
court is to dismiss the action. See State v. Sims, 291 Neb. 475, 865 N.W.2d 800 (2015).
                                                                                        AFFIRMED.




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