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ROBINSON v. HOUSTON

Cite as 298 Neb. 746

Danny R. Robinson, Jr., ap

v. Robert Houston et al

appellees.

___ N.W.2d ___

Filed January 19, 2018. No. S-17-287.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that 

does not involve a factual dispute presents a question of law, which an 

appellate court independently decides.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

3. Affidavits: Waiver. A litigant lacking sufficient funds to pay the costs, 

fees, or security may apply to the court to proceed in forma pauperis, 

having the otherwise required costs, fees, or security waived.

4. Affidavits. Under Neb. Rev. Stat. § 25-2301.02 (Reissue 2016), a 

party’s application to proceed in forma pauperis must generally be 

granted unless an objection is raised by another party or the court that 

the applicant either has sufficient funds to pay costs, fees, or security or 

is asserting legal positions which are frivolous or malicious.

5. Affidavits: Appeal and Error. Where an objection to an application 

to proceed in forma pauperis is sustained, Neb. Rev. Stat. § 25-2301.02 

(Reissue 2016) provides the applicant the right to immediately appeal 

the denial.

6. Statutes: Appeal and Error. Unless a statute provides for an appeal, 

such right does not exist.

7. Statutes: Intent. When interpreting a statute, the starting point and 

focus of the inquiry is the meaning of the statutory language, understood 

in context.

8. Statutes. Silence can be a meaningful indicator of statutory meaning.

9. ____. It is not within the province of a court to read a meaning into a 

statute that is not warranted by the legislative language.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/02/2018 08:14 AM CST
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10. Statutes: Appeal and Error. An appellate court does not consider 

a statute’s clauses and phrases as detached and isolated expressions. 

Instead, the whole and every part of the statute must be considered in 

fixing the meaning of any of its parts.

11. Affidavits: Appeal and Error. The right to interlocutory appeal of an 

in forma pauperis denial in Neb. Rev. Stat. § 25-2301.02(1) (Reissue 

2016) applies only to denials made pursuant to the two bases for denial 

set forth in that subsection.

12. Statutes: Prisoners: Affidavits: Appeal and Error. There is no statutory basis for an interlocutory appeal of a denial of leave to proceed in 

forma pauperis under Neb. Rev. Stat. § 25-3401 (Reissue 2016).

13. Judgments: Final Orders: Time: Appeal and Error. An appeal cannot 

be taken from a conditional order purporting to dismiss a pleading in the 

future upon the occurrence of an event.

Appeal from the District Court for Lancaster County: Rober

R. Otte, Judge. Appeal dismisse

Danny R. Robinson, Jr., pro se.

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

for appellees.

Miller-Lerman, Cassel, Stacy, Kelch, and Fu

Cassel, J.

INTRODUCTION

In this appeal, we must determine whether an interlocutory 

appeal is authorized under Nebraska’s “three strikes” prisoner 

litigation statute,1 which prohibits a prisoner who has previously filed at least three frivolous civil actions from proceeding 

in forma pauperis (IFP) without leave of court. Because we 

conclude that neither this statute nor the general IFP statute 

provides a right to interlocutory appeal of a “three strikes” 

denial and because there was not a final, appealable order, we 

dismiss the appeal for lack of jurisdiction.

1 Neb. Rev. Stat. § 25-3401 (Reissue 2016).
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ROBINSON v. HOUSTON

Cite as 298 Neb. 746

BACKGROUND

Danny R. Robinson, Jr., sued numerous prison officials, 

alleging a myriad of civil rights violations relating to his treatment by prison officials and the conditions of his confinement 

at the Nebraska State Penitentiary. The case was filed in the 

district court for Johnson County, Nebraska.

The district court initially sustained Robinson’s motion to 

proceed IFP. The court later sustained Robinson’s motion to 

transfer the case to Lancaster County, Nebraska. Once the case 

was transferred to Lancaster County, the prison officials filed 

a motion to reconsider the prior order granting IFP status to 

Robinson. They brought to the court’s attention three district 

court cases that Robinson had filed in Johnson County District 

Court in which Robinson had been denied IFP status, attaching 

the denial orders to their motion. Under the heading “Ruling of 

the Court,” those orders from the prior cases each stated: “The 

Court hereby denies Motion to Proceed [IFP] for reason action 

is meritless.”

After a hearing at which Robinson appeared by telephone, 

the Lancaster County District Court sustained the motion to 

reconsider and vacated the prior order allowing Robinson to 

proceed IFP, pursuant to the “three strikes” provision.2

The court’s order gave Robinson 30 days to pay the required 

filing fee and stated that “[i]f no action is taken the matter may be dismissed without notice or hearing.” Robinson 

immediately appealed the court’s order. He filed a praecipe 

requesting a transcript with all of the pleadings in the case, but 

failed to request a bill of exceptions. We moved this appeal to 

our docket.3

ASSIGNMENT OF ERROR

Robinson’s sole assignment of error is that “[t]he district 

court erred in ruling that [Robinson] was ineligible to proceed 

2 See § 25-3401(2)(a).

3 Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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[IFP] status based on the assertion that he had previously filed 

three frivolous actions.” The prison officials filed a brief challenging this court’s jurisdiction.

STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual 

dispute presents a question of law, which an appellate court 

independently decides.4

ANALYSIS

[2] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it 

has jurisdiction over the matter before it.5 The prison officials 

argue that because the “three strikes” statute does not authorize 

an interlocutory appeal, we lack jurisdiction over Robinson’s 

appeal. We agree.

[3-5] We recognize the existence of Nebraska’s general 

statutes regulating proceedings IFP.6 A litigant lacking sufficient funds to pay the costs, fees, or security may apply 

to the court to proceed IFP, having the otherwise required 

costs, fees, or security waived.7 These general statutes permit a court to authorize the “commencement, prosecution, 

defense, or appeal therein, of a civil or criminal case in forma 

pauperis.”8 Under § 25-2301.02(1), a party’s application to 

proceed IFP must generally be granted unless an objection is 

raised by another party or the court that the applicant either 

“(a) has sufficient funds to pay costs, fees, or security or 

(b) is asserting legal positions which are frivolous or malicious.” Where such an objection is sustained and IFP status 

4 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).

5 Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 

(2017).

6 See Neb. Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016).

7 See § 25-2301.02(1).

8 § 25-2301.01.
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is denied, § 25-2301.02 provides the applicant the right to 

immediately appeal the denial.

In 2012, the Nebraska Legislature passed into law L.B. 793 

in order “to limit frivolous civil actions filed by prisoners.”9

Patterned after a part of the federal Prison Litigation Reform 

Act of 1995,10 L.B. 793 (codified at § 25-3401) provides that 

a prisoner who has filed three or more civil actions found to 

be frivolous may not proceed IFP in any civil case without 

leave of court. The statute does not apply to habeas corpus or 

postconviction cases, and the “three strikes” bar does not apply 

where a court determines that the prisoner “is in danger of serious bodily injury.”11 Although both the general IFP statutes and 

the “three strikes” statute address proceedings IFP, the latter 

statute permits a trial court to exercise additional discretion in 

a narrow class of cases where a particular litigant is determined 

to have filed frivolous actions in the past. In those circumstances, a trial court may deny leave to proceed IFP despite 

the litigant’s indigence and even though the court may not 

be persuaded that the proposed action is frivolous—meaning 

wholly without merit, that is, without rational argument based 

on the law or on the evidence.12 But the “three strikes” statute 

is silent on a prisoner’s right to appeal a denial of IFP pursuant 

to this section.13

[6,7] The question we face here is whether the right to interlocutory appeal of an IFP denial in § 25-2301.02 also authorizes a prisoner to appeal the denial of IFP status under the 

subsequently enacted “three strikes” provision of § 25-3401. 

The legal backdrop for interpreting these statutes is that unless 

9 2012 Neb. Laws, L.B. 793.

10 28 U.S.C. § 1915(g) (2012); Prison Litigation Reform Act of 1995, Pub. L. 

No. 104-134, §§ 801 and 804, 110 Stat. 1321.

11 § 25-3401(2)(a).

12 See State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015).

13 See § 25-3401.
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a statute provides for an appeal, such right does not exist.14

When interpreting a statute, the starting point and focus of the 

inquiry is the meaning of the statutory language, understood 

in context.15

[8,9] When reading a statute, what it does not say is often 

as important as what it does say.

16 Silence can be a meaningful indicator of statutory meaning.17 In adopting the “three 

strikes” provision in § 25-3401, the Legislature did not provide 

for a right to interlocutory appeal of a denial of IFP status. 

Neither does § 25-3401 make reference to the right to appeal in 

§ 25-2301.02. Nor was § 25-2301.02 amended to cover “three 

strikes” denials of IFP status. As we have often said, “It is not 

within the province of this court to read a meaning into a statute that is not warranted by the legislative language.”18 Thus, 

we will not read into § 25-3401 a right to interlocutory appeal 

that the Legislature has not seen fit to enact.

These omissions are magnified by the definition of “[c]ivil 

action” in § 25-3401. It defines the term to include not only 

“a legal action seeking monetary damages, injunctive relief, 

[or] declaratory relief . . . that relates to or involves a prisoner’s conditions of confinement,” but also “any appeal filed 

in any court in this state” that does likewise.19 In other words, 

14 Heckman v. Marchio, supra note 4.

15 Kozal v. Nebraska Liquor Control Comm., supra note 5. See, also, Hively 

v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017) 

(Sykes, J., dissenting; Bauer and Kanne, JJ., join) (statutory interpretation); 

BankDirect Capital v. Plasma Fab, 519 S.W.3d 76 (Tex. 2017) (statutory 

interpretation); Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 56-58 (2012).

16 See, Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723 

(2016); Nebraska Account. & Disclosure Comm. v. Skinner, 288 Neb. 804, 

853 N.W.2d 1 (2014).

17 See id.

18 State v. Gilliam, 292 Neb. 770, 781, 874 N.W.2d 48, 57 (2016), cert. 

denied ___ U.S. ___, 137 S. Ct. 371, 196 L. Ed. 2d 290.

19 § 25-3401(1)(a).
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the requirement of § 25-3401(2)(a) that a prisoner having 

three strikes obtain leave of court to proceed IFP applies both 

to commencement of an action and to an appeal, so long as 

the action or appeal relates to or involves a prisoner’s conditions of confinement. Yet, the Legislature provided no right to 

interlocutory appeal of a “three strikes” denial of IFP status in 

§ 25-3401.

[10] And a fundamental principle of statutory interpretation 

is that statutory language must always be read in context.20 As 

we have said before, an appellate court does not consider a 

statute’s clauses and phrases as detached and isolated expressions. Instead, the whole and every part of the statute must be 

considered in fixing the meaning of any of its parts.21 Another 

way of stating the same principle is that “statutory language is 

interpreted in the context in which it is used; not in isolation 

but as part of a whole.”22

[11] In one of the general IFP statutes, context matters. 

Section 25-2301.02(1) provides that “[i]f an objection [to an 

application to proceed IFP] is sustained, the party filing the 

application shall have thirty days after the ruling or issuance 

of the statement to proceed with an action or appeal . . . .” But 

the “objection” referred to in that sentence refers back to an 

earlier part of that subsection: “An application to proceed in 

forma pauperis shall be granted unless there is an objection

that the party filing the application (a) has sufficient funds to 

pay costs, fees, or security or (b) is asserting legal positions 

which are frivolous or malicious.”23 Thus, when the right to 

interlocutory appeal of an IFP denial in § 25-2301.02(1) 

is read in context, it becomes clear that it applies only to 

20 Scalia & Garner, supra note 15. See, also, Matter of Sinclair, 870 F.2d 

1340 (7th Cir. 1989) (importance of context in statutory interpretation).

21 Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016).

22 State ex rel. Kalal v. Dane County, 271 Wis. 2d 633, 663, 681 N.W.2d 110, 

124 (2004).

23 § 25-2301.02(1) (emphasis supplied).
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denials made pursuant to the two bases for denial set forth in 

that subsection.

[12] Because the right to interlocutory appeal of a denial 

of an application to proceed IFP in § 25-2301.02(1) applies 

only to the two bases for denial in that subsection and because 

§ 25-3401 provides no right to interlocutory appeal, there is no 

statutory basis for an interlocutory appeal of a “three strikes” 

denial of IFP status under § 25-3401. Thus, Robinson’s attempt 

to appeal immediately had no statutory basis.

[13] Moreover, the order from which Robinson attempted 

to appeal was not a final order under the general statutes governing appeals.24 Rather, it was a conditional order. The order 

required Robinson to pay the filing fee within 30 days or face 

dismissal. Thus, it did not actually dismiss the action. Nor 

was the action automatically dismissed upon expiration of the 

30-day period. We have long held that an appeal cannot be 

taken from a conditional order purporting to dismiss a pleading in the future upon the occurrence of an event.25 Thus, our 

record shows that at the time of Robinson’s attempted appeal, 

there was no final, appealable order.

CONCLUSION

Because there was no statutory basis for an interlocutory 

appeal of the district court’s order and because the order was 

not a final order, we lack appellate jurisdiction to review the 

district court’s order. Therefore, we dismiss this appeal.

Appeal dismissed

Heavican, C.J., and Wright, J., not participati

24 See Neb. Rev. Stat. § 25-1902 (Reissue 2016).

25 Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014).