Gray v. Hubert, 030221 NECA, A-20-339

Docket NºA-20-339
Opinion JudgeWELCH, JUDGE.
Party NameGraylin Gray, appellant, v. Donna Hubert, appellee.
AttorneyGraylin Gray, pro se. Douglas J. Peterson, Attorney General, and James D. Smith for appellee.
Judge PanelBishop, Arterburn, and Welch, Judges.
Case DateMarch 02, 2021
CourtCourt of Appeals of Nebraska

Graylin Gray, appellant,

v.

Donna Hubert, appellee.

No. A-20-339

Court of Appeals of Nebraska

March 2, 2021

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).

Appeal from the District Court for Lancaster County: Susan I. Strong, Judge.

Graylin Gray, pro se.

Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

Bishop, Arterburn, and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

INTRODUCTION

Graylin Gray appeals the Lancaster County District Court's denial of his request for in forma pauperis (IFP) status and the court's subsequent denial of his motion for reconsideration and dismissal of his complaint for writ of mandamus. Gray contends that the district court erred in denying his motion to proceed IFP on the basis he was able to pay the fees and costs of the action and that the district court erred in denying his motion to reconsider and dismissing the case with prejudice. For the reasons set forth herein, we affirm in part, and in part reverse and vacate.

STATEMENT OF FACTS

In early March 2020, Gray filed a complaint for a writ of mandamus for the Clerk of the Lancaster County Court to provide him with a copy of a criminal complaint filed against Gray in a specific criminal case. Gray alleged that he had requested the records multiple times but Donna Hubert, in her official capacity as clerk of the Lancaster County Court, had not answered or otherwise responded to any of his requests. Gray also filed a motion to proceed IFP and a poverty affidavit, which incorporated his Department of Correctional Services inmate account.

On March 11, 2020, the district court denied Gray's request to proceed IFP, finding that Gray's poverty affidavit in support of his motion to proceed IFP showed that he is incarcerated and has maintained for the past few months an average of approximately $200 in his inmate account. The Court finds that [Gray] is able to pay the fees and costs of this action and that the County should not be required to pay for this proceeding.

. . . The lawsuit will be dismissed thirty days after the date of this order unless [Gray] makes the proper payment of filing fees with the Clerk of the District Court.

Within 10 days of the district court's order denying IFP status, Gray timely filed a motion for reconsideration asking the court to allow him to proceed IFP.

On April 20, 2020, the district court denied the motion for reconsideration and dismissed Gray's case with prejudice for his failure to pay the filing fee within 30 days. Gray timely appealed the district court's denial of his IFP status and his motion to reconsider and the dismissal of his case.

After reviewing the transcript, this court issued an order to show cause (OSC) wherein we stated: Here, it appears from this court's review of the transcript that there was no objection to Gray's motion to proceed IFP filed by any interested person and that the motion was made by the court on its own motion. Further, the court's order denying Gray's motion to proceed IFP is based upon the court's determination that Gray has sufficient funds with which to pay the costs of his action, not that he was asserting legal positions which were frivolous or malicious. As such, § 25-2301.02(1) required that the court hold an evidentiary hearing on Gray's motion to proceed IFP and that such evidentiary hearing does not appear to have been held. Accordingly, the parties are given 10 days to show cause why this case should not be summarily reversed and remanded for further proceedings.

The State responded to our OSC arguing that Gray's brief did not assign and argue error on the basis that no evidentiary hearing was held, and therefore, this court should review the lack of an evidentiary hearing for plain error. The State further argued that this court should not summarily reverse on plain error review because the record does not establish that an evidentiary hearing was not held in this case.

ASSIGNMENTS OF ERROR

Gray contends the district court erred in denying his motion to proceed IFP on the basis that he is able to pay the fees and costs of this action.

Gray also assigns as error that the district court erred in denying his motion to reconsider and dismissing the case with prejudice; however, Gray does not argue this assignment of error in his brief. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. In re Guardianship & Conservatorship of J.F., 307 Neb. 452, 949 N.W.2d 496 (2020). Thus, we decline to consider this assigned error.

STANDARD OF REVIEW

A district court's denial of in forma pauperis status is reviewed de novo on the record based on the transcript of the hearing or written statement of the court. Neb. Rev. Stat. § 25-2301.02(2) (Reissue 2016); Sabino v. Ozuna, 303 Neb. 318, 928 N.W.2d 778 (2019).

ANALYSIS

Before addressing Gray's claim that the district court erred in denying his motion to proceed IFP on the basis that he had sufficient funds to pay the fees and costs of this action, we note that, as an initial matter, there is some question as to whether the district court held a hearing following the district court's own objection to Gray's IFP request on the basis that he had sufficient funds to pay. A hearing is required by the plain language of § 25-2301.02(1) in the event the court objects to an application to proceed in forma pauperis on the basis that the party filing the application "has sufficient funds to pay costs, fees, or security." See State v. Sims, 291 Neb. 475, 865 N.W.2d 800 (2015).

Nebraska's IFP statutes are codified at Neb. Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016). "In forma pauperis" is defined to mean...

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