Dortch v. City of Omaha

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/28/2018 09:09 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
DORTCH v. CITY OF OMAHA
Cite as 26 Neb. Ct. App. 244
Joshua Dortch, appellant, v.
City of Omaha and Douglas
County Sheriff, appellees.
___ N.W.2d ___
Filed August 21, 2018. No. A-17-1068.
1. Affidavits: Appeal and Error. A district court’s denial of an applica-
tion to proceed 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. Actions: Words and Phrases. A frivolous legal position is one wholly
without merit, that is, without rational argument based on the law or on
the evidence.
3. Jurisdiction: Search and Seizure: Property. Neb. Rev. Stat. § 29-818
(Reissue 2016) makes clear that if the matter in which the property or
funds is seized results in a charge, the court in which such complaint
was filed has exclusive jurisdiction for disposition of the property
or funds.
4. Search and Seizure: Property. While the government is permitted to
seize evidence for use in investigation and trial, such property must be
returned once criminal proceedings have concluded, unless it is contra-
band or subject to forfeiture.
5. ____: ____. The proper procedure to obtain the return of seized property
is to apply to the court for its return.
6. Pleadings: Notice. Under the liberalized rules of notice pleading, a
party is only required to set forth a short and plain statement of the
claim showing that the pleader is entitled to relief.
7. Affidavits: Judgments. When, pursuant to Neb. Rev. Stat.
§ 25-2301.02(1) (Reissue 2016), a trial court denies leave to proceed in
forma pauperis on its own motion on the ground that the party seeking
leave is asserting legal positions which are frivolous or malicious, its
order shall include the court’s reasons for such conclusion.
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
DORTCH v. CITY OF OMAHA
Cite as 26 Neb. Ct. App. 244
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Reversed and remanded for further
proceedings.
Joshua Dortch, pro se.
No appearance for appellees.
Pirtle, R iedmann, and Welch, Judges.
Welch, Judge.
INTRODUCTION
Joshua Dortch appeals the district court’s denial of his
application to proceed in forma pauperis (IFP). The court
denied Dortch’s application based on its finding that the under-
lying replevin petition was a frivolous pleading. We find that
the district court erred in denying Dortch’s application to pro-
ceed IFP on the basis that it was frivolous without providing a
written statement of its reasons, findings, and conclusions for
that denial. Therefore, we reverse the decision of the district
court and remand the cause for further proceedings.
STATEMENT OF FACTS
Dortch, acting pro se, filed a petition for replevin nam-
ing the “City of Omaha” and the “[D]ouglas County Sheriff”
as defendants. The entirety of Dortch’s petition for replevin
set forth: “Police illegally seized $5,512.00 from us on or
about 8-18-17 and continue to hold same on pretext of some
[n]ebulous investigation. We pray that [r]eplevin [b]e granted,
and our [$]5,512.00 returned to us as is said.” Dortch also
filed an application to proceed IFP and an affidavit alleging
that he had no assets. The district court denied his applica-
tion, finding that Dortch’s “[r]eplevin [p]etition is a frivolous
pleading.” Dortch, acting pro se, has timely filed his notice of
appeal and poverty affidavit properly perfecting his appeal to
this court. See Campbell v. Hansen, 298 Neb. 669, 673, 905
N.W.2d 519, 522 (2018) (“[i]n an interlocutory appeal from an
order denying leave to proceed IFP, an appellate court obtains
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DORTCH v. CITY OF OMAHA
Cite as 26 Neb. Ct. App. 244
jurisdiction over the appeal upon the timely filing of a notice
of appeal and a proper IFP application and affidavit”).
ASSIGNMENT OF ERROR
Dortch contends that the district court erred in denying
his application to proceed IFP on the basis that his petition
was frivolous.
STANDARD OF REVIEW
[1] A district court’s denial of an application to proceed
IFP 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. See Mumin v.
Nebraska Dept. of Corr. Servs., 25 Neb. Ct. App. 89, 903 N.W.2d
483 (2017).
ANALYSIS
[2] In his brief on appeal, Dortch contends, “Police [j]ust
can[’]t seize $5,512.00 from a United [States] citizen, as was
done at Bar, [t]hen Trial Judge pooh-pooh us out of court willy
[n]illy shilly shally.” Brief for appellant at 4. As previously
stated, the district court denied Dortch’s application to proceed
IFP on his action for replevin on the basis that the action was
frivolous. “A frivolous legal position is one wholly without
merit, that is, without rational argument based on the law or
on the evidence.” State v. Carter, 292 Neb. 16, 21, 870 N.W.2d
641, 645 (2015).
The procedure for IFP is generally governed by Neb. Rev.
Stat. §§ 25-2301 to 25-2310 (Reissue 2016). Pursuant to
those statutes, any county or state court, except the Nebraska
Workers’ Compensation Court, may authorize the commence-
ment, prosecution, defense, or appeal therein, of a civil or
criminal case without prepayment of fees and costs or secu-
rity. § 25-2301.01. An application to proceed IFP 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
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DORTCH v. CITY OF OMAHA
Cite as 26 Neb. Ct. App. 244
belief that he or she is entitled to redress. Id. Section
25-2301.02(1) sets forth that an application to proceed IFP
“shall be granted unless there is an objection that the party fil-
ing the application (a) has sufficient funds to pay costs, fees,
or security or (b) is asserting legal positions which are frivo-
lous or malicious.” An objection may be made by the court
on its own motion or on the motion of any interested person.
Id. “An evidentiary hearing shall be conducted on the objec-
tion unless the objection is by the court on its own motion
on the grounds that the applicant is asserting legal positions
which are frivolous or malicious.” Id. If no hearing is held,
the court shall provide a written statement of its reasons, find-
ings, and conclusions for denial of the applicant’s application
to proceed IFP which shall become a part of the record of the
proceeding. Id. See, also, Mumin v. Nebraska Dept. of Corr.
Servs., supra.
The district court, on its own motion and without an evi-
dentiary hearing, denied Dortch’s application to proceed IFP
on the basis that his petition was frivolous. The court did not
provide any additional reasons, findings, or conclusions for
that denial. Dortch’s pleading requests return of cash seized by
law enforcement based upon the theory of replevin. Although
he refers to a “[n]ebulous investigation,” he does not iden-
tify when the cash was seized, why the cash was seized, or
if charges have been filed against him. Dortch does not cite
to any statutory authority for his petition for return of his
seized cash.
We note that Neb. Rev. Stat. § 29-818 (Reissue 2016) pro-
vides that a party may apply to the court by replevin or other
writ for the return of property seized pursuant to a search war-
rant or validly seized without a warrant under certain condi-
tions. Specifically, § 29-818 provides:
Except for animals as provided in section 28-1012.01,
property seized under a search warrant or validly seized
without a warrant shall be safely kept by the officer seiz-
ing the same, unless otherwise directed by the judge or
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DORTCH v. CITY OF OMAHA
Cite as 26 Neb. Ct. App. 244
magistrate, and shall be so kept so long as necessary for
the purpose of being produced as evidence in any trial.
Property seized may not be taken from the officer having
it in custody by replevin or other writ so long as it is or
may be required as evidence in any trial, nor may it be
so taken in any event where a complaint has been filed in
connection with which the property was or may be used as
evidence, and the court in which such complaint was filed
shall have exclusive jurisdiction for disposition of the
property or funds and to determine rights therein, includ-
ing questions respecting the title, possession, control, and
disposition thereof. This section shall not preempt, and
shall not be construed to preempt, any ordinance of a city
of the metropolitan or primary class.
[3-5] Section 29-818 makes clear that if the matter in which
the property or funds is seized results in a charge, the court
in which such complaint was filed has exclusive jurisdiction
for disposition of the property or funds. See State v. Agee,
274 Neb. 445, 741 N.W.2d 161 (2007). That said, “While
the government is permitted to seize evidence for use in
investigation and trial, such property must be returned once
criminal proceedings have concluded, unless it is contraband
or subject to forfeiture.” Id. at 450, 741 N.W.2d at 166. The
proper procedure to obtain the return of seized property is to
apply to the court for its return. State v. Buttercase, 296 Neb.
304, 893 N.W.2d 430 (2017). We also note that there are vari-
ous forfeiture statutes which govern the custody and return
of seized property. For instance, Neb. Rev. Stat. § 28-431
(Reissue 2016) provides the procedure for the return or for-
feiture of seized property, including currency, when said prop-
erty is seized in connection with an alleged drug or narcot-
ics violation.
[6] Nebraska is a notice pleading state. “Under the liberal-
ized rules of notice pleading, a party is only required to set
forth a short and plain statement of the claim showing that
the pleader is entitled to relief.” Davio v. Nebraska Dept. of
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26 Nebraska A ppellate R eports
DORTCH v. CITY OF OMAHA
Cite as 26 Neb. Ct. App. 244
Health & Human Servs., 280 Neb. 263, 268, 786 N.W.2d 655,
661-62 (2010). Here, Dortch pled that his cash was illegally
seized by police. Dortch seeks return of the money.
[7] We cannot say that a civil replevin action is an improper
remedy for the return of seized property under all circum-
stances. For instance, an action in replevin may be available in
connection with property seized but never returned in connec-
tion with certain investigations which never result in a charge
being filed. Further, we note that in Peterson v. Houston, 284
Neb. 861, 866, 824 N.W.2d 26, 32 (2012), which held “pro-
spectively that when, pursuant to § 25-2301.02(1), a trial court
denies leave to proceed [IFP] on its own motion on the ground
that the party seeking leave is asserting legal positions which
are frivolous or malicious, its order shall include the court’s
reasons for such conclusion.” Because we cannot ascertain
from the pleading or the district court’s order why the district
court deemed this matter frivolous, we reverse the decision of
the district court and remand the cause for further proceedings
consistent with this opinion.
R eversed and remanded for
further proceedings.