IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL 

(Memorandum Web Opinion)

HARPER V. DEPARTMENT OF CORRECTIONS

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).

ERNEST C. HARPER, APPELLANT,

V.

DEPARTMENT OF CORRECTIONS ET AL., APPELLEES.

Filed January 27, 2015. No. A-14-138.

Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.

Affirmed in part, and in part reversed.

Ernest C. Harper, pro se.

Jon Bruning, Attorney General, and Ryan S. Post for appellees.

MOORE, Chief Judge, and INBODY and PIRTLE, Judges.

PIRTLE, Judge.

INTRODUCTION

Ernest C. Harper appeals from an order of the district court for Lancaster County denying 

his request to proceed in forma pauperis on his petition for declaratory judgment action and his 

petition for alternative and peremptory writ against the Department of Correctional Services, et 

al. (Department). Based on the reasons that follow, we affirm in part, and in part reverse.

BACKGROUND

Harper is an inmate in the custody of the Nebraska Department of Correctional Services, 

housed at the Tecumseh State Correctional Institution. On October 12, 1982, he was sentenced 

by the district court for Douglas County on four different counts.

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In January 2014, Harper brought a declaratory judgment action alleging the Department 

committed an invalid act or abused its authority by failing to credit him good time from the date 

of his sentence. He alleged that the Department had determined that good time credit is to be 

given from the date of initial incarceration, rather than from the date of sentence as required by 

statute. Harper requested the court to grant him a hearing to determine whether the Department 

had properly calculated and computed his good time.

Harper also filed a petition for alternative and peremptory writ, requesting a review of his 

sentence calculation. With his petitions, Harper filed a motion to proceed in forma pauperis and a 

poverty affidavit.

The trial court, on its own motion, denied Harper’s request to proceed in forma pauperis. 

In regard to the petition for declaratory judgment, the court noted that the existence of an actual 

controversy is a prerequisite to declaratory relief. See Ryder Truck Rental v. Rollins, 246 Neb. 

250, 518 N.W.2d 124 (1994). It found that Harper’s petition contained no allegation that he was 

currently eligible for parole or that the Department had denied him parole based on error in 

applying any particular good time law and therefore, that no actual controversy existed. The 

court concluded that a declaratory judgment entered against the defendants would not resolve 

any conflict and failed to present a justiciable controversy. The court additionally found that the 

case was not ripe for judicial determination.

In regard to Harper’s request to proceed in forma pauperis on the petition for alternative 

and peremptory writ, the trial court found that the request had to be denied for the same reason 

stated for the declaratory judgment action, as well as because the issue in controversy, i.e. 

whether the multiple count sentences were properly calculated, had already been decided in a 

previous action.

ASSIGNMENTS OF ERROR

Harper assigns that the trial court erred in (1) denying him leave to proceed in forma 

pauperis, (2) dismissing his petition for declaratory judgment, and (3) dismissing his petition for 

alternative or peremptory writ.

STANDARD OF REVIEW

A district court's denial of in forma pauperis status 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. Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012). 

ANALYSIS

Harper assigns that the trial court erred in denying his request to proceed in forma 

pauperis on his petition for declaratory judgment and his petition for alternative or peremptory 

writ. Applications to proceed in forma pauperis are governed by § 25-2301.02. Peterson v. 

Houston, supra. Except in those cases where the denial of in forma pauperis status would deny a 

defendant his or her constitutional right to appeal in a felony case, § 25-2301.02(1) allows the 

court on its own motion to deny in forma pauperis status on the basis that the legal positions 

asserted by the applicant are frivolous or malicious, provided that the court issue a written 

statement of its reasons, findings, and conclusions for denial. Id. A frivolous legal position 

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pursuant to § 25-2301.02 is one wholly without merit, that is, without rational argument based on 

the law or on the evidence. Id.

In regard to the petition for declaratory judgment, the court found that no actual 

controversy existed, a prerequisite to declaratory relief, because Harper did not allege that he was 

currently eligible for parole or that the Department has denied him parole based on error in 

applying any particular good time law. However, we find no requirement in the case law that 

current parole eligibility or actual denial of parole are prerequisites to a prisoner’s challenge to 

the calculation of his good time, and the court cited no authority for its holding. We point to 

Worley v. Houston, 16 Neb. App. 634, 747 N.W.2d 639 (2008), as an example of case law 

indicating that no such requirement exists. Worley v. Houston, supra involved an appeal from the 

denial of a prisoner’s motion for declaratory judgment filed against the director of the 

Department and the records administrator. The prisoner, serving a 20 to 25 year sentence 

imposed in 1997, alleged that his mandatory discharge date had been miscalculated to a date in 

2012. He did not allege that he was eligible for parole or that he had been denied parole. This 

court recalculated the proper amount of good time and found that his mandatory release date was 

in 2009.

In the present case, Harper filed his declaratory judgment action asking the court to 

determine whether the Department had properly calculated and computed his good time. Harper 

was not required to wait to file his action until such time as he was denied parole or was eligible 

for parole. Therefore, the trial court improperly denied in forma pauperis status to Harper in 

regard to his petition for declaratory judgment.

In regard to Harper’s petition for alternative and peremptory writ, the court denied in 

forma pauperis status for the same reason discussed above, as well as because it was an attempt 

to relitigate an issue previously resolved. Based on our previous analysis, the trial court should 

not have denied in forma pauperis status on the basis that Harper did not allege that he was 

currently eligible for parole or that he had been denied parole. However, we conclude that in 

forma pauperis status was properly denied on the ground that the issue had already been decided 

in a previous action.

In 2009, Harper had filed a declaratory judgment action claiming the Department was not 

properly calculating his sentences. Specifically, he asked the court to determine whether the 

Department had computed his parole eligibility and mandatory discharge dates correctly. Harper 

had been convicted and sentenced on four counts, and the trial court determined that the 

sentencing court ordered that the sentences on Count III and IV were to run concurrently to each 

other, but consecutive to Count I. The sentence on Count II was ordered to run consecutive to the 

sentences on Counts I, III, and IV. All of the sentences were to run consecutively to an Iowa 

robbery conviction. The trial court determined that the calculation of the sentences by the

Department was correct. The trial court’s decision on Harper’s 2009 declaratory judgment action 

was affirmed by this court. See Harper v. Dept. of Corr. Servs., No. A-09-1155 (Neb. App. July 

12, 2010) (not designated for permanent publication).

In both the 2009 declaratory judgment action and the present petition for alternative and 

peremptory writ action, Harper sought a determination of whether the Department was 

misinterpreting his multiple count sentences. The 2009 judgment found that the computation by 

the Department was correct and thus, Harper is trying to relitigate an issue already decided. The 

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trial court properly denied in forma pauperis status in regard to the petition for alternative and 

peremptory writ on the ground that the issue had previously been resolved.

Harper also assigns that the trial court erred in dismissing his petition for declaratory 

judgment and his petition for alternative or peremptory writ. However, the trial court only denied 

his request to proceed in forma pauperis on the motions, it did not dismiss the motions. 

Accordingly, we need not address Harper’s second and third assignments of error.

CONCLUSION

We conclude that the trial court erred in denying Harper in forma pauperis status on his 

petition for declaratory judgment action, but did not err in denying in forma pauperis status on 

his petition for alternative and peremptory writ. Accordingly, the order of the district court is 

affirmed in part, and in part reversed.

AFFIRMED IN PART, AND IN PART REVERSED.

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