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06/15/2017 05:14 PM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     24 Nebraska A ppellate R eports
                                        GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                                                  Cite as 24 Neb. App. 713




                         Graylin Gray, appellant, v. Nebraska Department
                            of Correctional Services et al., appellees.

                                   Graylin Gray, appellant, v.
                                    Nathan Flood, appellee.
                                                       ___ N.W.2d ___

                                        Filed May 23, 2017.     Nos. A-16-482, A-16-590.

                1.	 Affidavits: Appeal and Error. A district court’s denial of 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.	 Appeal and Error. Although an appellate court ordinarily considers
                     only those errors assigned and discussed in the briefs, the appellate court
                     may, at its option, notice plain error.
                 3.	 ____. Plain error is error plainly evident from the record and of such a
                     nature that to leave it uncorrected would result in damage to the integ-
                     rity, reputation, or fairness of the judicial process.
                4.	 Statutes: Appeal and Error. Statutory language is to be given its plain
                     and ordinary meaning, and an appellate court will not resort to inter-
                     pretation to ascertain the meaning of statutory words which are plain,
                     direct, and unambiguous.
                5.	 Statutes: Legislature: Intent. In reading a statute, a court must deter-
                     mine and give effect to the purpose and intent of the Legislature as
                     ascertained from the entire language of the statute considered in its
                     plain, ordinary, and popular sense.
                6.	 Appeal and Error. An appellate court is not obligated to engage in an
                     analysis that is not necessary to adjudicate the case and controversy
                     before it.

                  Appeals from the District Court for Lancaster County:
               A ndrew R. Jacobsen, Judge. Reversed and remanded for fur-
               ther proceedings.
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
             GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 713

  Graylin Gray, pro se.

  No appearance for appellees.

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

  Pirtle, Judge.
                    I. INTRODUCTION
  Graylin Gray appeals the orders of the district court for
Lancaster County denying his requests to proceed in forma
pauperis in cases Nos. A-16-482 and A-16-590. These matters
have been consolidated on appeal. For the reasons that follow,
we reverse, and remand for further proceedings.

                       II. BACKGROUND
                      1. Case No. CI 16-184
   On January 15, 2016, Gray filed a motion to proceed in
forma pauperis in the Lancaster County District Court in case
No. CI 16-184. He filed the associated complaint, and on
January 25, the court entered an order sustaining Gray’s motion
to proceed in forma pauperis.
   On February 9, 2016, the Attorney General’s office filed a
motion, on behalf of the defendants, to reconsider the deci-
sion to sustain Gray’s motion. The State cited Neb. Rev. Stat.
§ 25-3401(2)(a) (Reissue 2016), which 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 defendants 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,” namely:
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
             GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 713

         “a. Gray v. Gage, in the Johnson County District
      Court, case number [CI] 13-143;
         “b. Gray v. Kenney, in the Lancaster County District
      Court, case number CI 14-866; [and]
         “c. Gray v. Gage, in the Johnson County District Court,
      case number CI 15-94.”
   The defendants alleged that Gray had received three
“‘strikes,’” and the district court should reverse the decision
to sustain Gray’s motion to proceed in forma pauperis. In sup-
port of its motion to reconsider, the State attached orders from
each of the three cases cited in its motion. Each of the three
orders denied Gray’s motions to proceed in forma pauperis,
and in each case, the judge found the petition Gray had pro-
posed to file appeared to be frivolous on its face.
   A hearing on the defendants’ motion was held on March 4,
2016, and Gray appeared telephonically. The court referred
to § 25-3401(2)(a) and found the defendants’ motion referred
to “three civil actions commenced by [Gray] after July 19,
2012 that have been found frivolous by a court of this State.”
The court took judicial notice of the orders filed in cases
Nos. CI 13-143, CI 14-866, and CI 15-94 and found that the
defend­ants’ motion to reconsider should be sustained. Gray
was given 30 days from the date of the order to pay the filing
fees in CI 16-184, “or the matter [would] be dismissed without
further notice.”
   On March 24, 2016, Gray filed a motion for reconsidera-
tion urging the court to determine that cases Nos. CI 13-143,
CI 14-866, and CI 15-94 should not count as “strike[s]”
against him in determining whether to grant in forma pauperis
status in CI 16-184. He argued that an appeal of CI 15-94 was
pending before the Nebraska Supreme Court, so consideration
of this action was premature. He argued that CI 14-866 should
not be considered as a “strike” because he never paid the fil-
ing fee after the district court denied in forma pauperis status.
He argued that CI 13-143 should not have been considered as
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
             GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 713

a “strike” because the district court never reached the merits
of his writ of habeas corpus.
   A hearing on Gray’s motion was held on April 20, 2016,
with Gray appearing telephonically, without the assistance
of a lawyer. In addition to the arguments cited in his motion,
Gray argued that each of the actions considered by the trial
court were habeas corpus actions, and that “‘a dismissal in
a habeas corpus action is not a strike,’” citing Andrews v.
King, 398 F.3d 1113 (9th Cir. 2005). He also argued that
cases Nos. CI 13-143, CI 14-866, and CI 15-94 were not
“commenced” after the effective date of the statute, July 19,
2012, because summonses were never properly served on the
named defendants.
   In its order, filed April 22, 2016, the district court for
Lancaster County denied Gray’s motion to reconsider. Gray
timely appealed and was granted leave to file the appeal in case
No. A-16-482, in forma pauperis. No appellee brief was filed
on behalf of the defendants.

                    2. Case No. CI 16-1373
   On April 20, 2016, Gray filed a motion to proceed in forma
pauperis in the Lancaster County District Court in case No.
CI 16-1373. On May 17, the district court for Lancaster County
filed an order denying Gray’s request. The district court took
judicial notice of the order filed in case No. CI 16-184. The
court found that since July 19, 2012, Gray, a prisoner, had
“brought three cases that were dismissed for being frivolous.”
Gray timely appealed and was granted leave to file this appeal,
in case No. A-16-590, in forma pauperis. No appellee brief
was filed on behalf of the defendant.

               III. ASSIGNMENTS OF ERROR
   Gray asserts the district court erred and abused its discre-
tion by denying his motion for reconsideration in case No.
A-16-482. He asserts the district court erred and abused its
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
             GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 713

discretion in denying his application to proceed in forma pau-
peris in case No. A-16-590.
                  IV. STANDARD OF REVIEW
   [1] A district court’s denial of 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. State v. Ely, 295 Neb. 607, 889 N.W.2d
377 (2017). The district court denied in forma pauperis in this
case pursuant to § 25-3401, but we see no reason why the same
standard of review should not apply.
   [2,3] Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appel-
late court may, at its option, notice plain error. Cain v. Custer
Cty. Bd. of Equal., 291 Neb. 730, 868 N.W.2d 334 (2015).
Plain error is error plainly evident from the record and of
such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. Id.
                         V. ANALYSIS
                         1. Plain Error
                     (a) Case No. A-16-482
   In response to the defendants’ motion to reconsider, Gray
argued that cases Nos. CI 13-143, CI 14-866, and CI 15-94
were each habeas corpus actions and “dismissal in a habeas
corpus action is not a strike.” Gray does not argue this asser-
tion on appeal, however this court may, at its option, notice
plain error. We review the plain language of § 25-3401, which
allows certain limits to be placed upon prisoners who have
previously filed multiple civil actions which have been found
to be frivolous.
   [4,5] Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous. State v. Raatz, 294 Neb.
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
             GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 713

852, 885 N.W.2d 38 (2016). In reading a statute, a court
must determine and give effect to the purpose and intent
of the Legislature as ascertained from the entire language
of the statute considered in its plain, ordinary, and popular
sense. Id., citing State v. Mucia, 292 Neb. 1, 871 N.W.2d
221 (2015).
   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.
   Section 25-3401(1)(a) states that, for purposes of this sec-
tion, 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 confinement. Civil Action does not
include a motion for postconviction relief or petition for
habeas corpus relief.” (Emphasis supplied.)
   By the definition of civil action in § 25-3401(1)(a), the
Legislature expressly excluded petitions for habeas corpus
relief from consideration for purposes of determining, under
§ 25-3401(2)(a), whether a prisoner has filed three or more
civil actions that have been found to be frivolous.
   The defendants submitted orders from cases Nos. CI 13-143,
CI 14-866, and CI 15-94 to the district court in support of the
motion for reconsideration. At the hearing before the district
court, Gray argued that each of the three cases presented origi-
nated as petitions for habeas corpus relief. The court found
that “since July 2012, [Gray] has brought three cases, while
incarcerated, that were dismissed for being frivolous.”
   It is true that in each of the orders submitted by the
defend­ants, the respective district courts denied Gray’s requests
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
             GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 713

to proceed in forma pauperis because the underlying action
appeared to be frivolous. However, upon our review of the
record, it appears that at least one of the alleged strikes, case
No. CI 14-866, originated as a petition for habeas corpus relief.
In case No. CI 14-866, the order of the district court stated
“[t]he evidence demonstrates that the issues presented in the
petition for habeas corpus filed by [Gray] have previously been
considered and overruled in three prior cases . . . .” Because
petitions for habeas corpus relief are not included in the defini-
tion of “civil actions” in § 25-3401, case No. CI 14-866 must
be excluded from consideration. Therefore, we find that the
district court plainly erred in applying § 25-3401(2)(a) to deny
Gray’s request to proceed in forma pauperis based upon the
three cases cited by the defendants.

                    (b) Case No. A-16-590
   In case No. CI 16-1373, the district court took judicial notice
of the order in case No. CI 16-184. The court relied on the
prior determination that Gray, “a prisoner, has brought three
cases that were dismissed for being frivolous” in concluding
that Gray’s application to proceed in forma pauperis should
be denied based upon the provisions of § 25-3401(2)(a). The
court made no additional findings regarding any other previous
actions which could be counted as “civil actions” according to
§ 25-3401(1)(a). Having found that the court’s findings in case
No. CI 16-184 were in error, we must also find that the court’s
findings in case No. CI 16-1373 were in error.

                         (c) Conclusion
   In reversing the orders of the district court, we note that the
district court is not precluded from denying Gray’s requests
to proceed in forma pauperis should it be determined that the
legal positions asserted by the applicant are frivolous or mali-
cious, or there are other reasons the applications should be
denied pursuant to § 25-2301.02. See State v. Carter, 292 Neb.
16, 870 N.W.2d 641 (2015).
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
             GRAY v. NEBRASKA DEPT. OF CORR. SERVS.
                       Cite as 24 Neb. App. 713

                  2. Commencement of Action
   [6] In both cases Nos. A-16-482 and A-16-590, Gray asserts
the district court erred in finding he had “commenced” three
or more civil actions after July 19, 2012, that have been found
to be frivolous by a court of this state or a federal court.
Having found that the district court committed reversible error
by determining that each of the three cases presented to the
district court for consideration qualified as “strikes” pursuant
to § 25-3401(2)(a), these appeals are resolved. Therefore, we
elect to not consider Gray’s assigned errors regarding when
an action is deemed to have been “commenced” for purposes
of § 25-3401. See Gray v. Kenney, 290 Neb. 888, 863 N.W.2d
127 (2015) (appellate court is not obligated to engage in analy-
sis that is not necessary to adjudicate case and controversy
before it).
                       VI. CONCLUSION
   We find the district court erred in denying in forma pauperis
status in cases Nos. CI 16-184 and CI 16-1373 based upon the
provisions of § 25-3401. Therefore, we reverse, and remand
for further proceedings consistent with this opinion.
	R eversed and remanded for
	                                  further proceedings.
