Jones v. Jones

JONES v. JONES 	361
Cite as 284 Neb. 361
Palik will be subject to a 1-year probationary term during
which he will be supervised by an attorney to be selected by
the Relator. In addition, Palik is to comply with Neb. Ct. R.
§ 3-316 and is subject to contempt of this court if he does not.
Further, Palik is to pay the costs of this action in accordance
with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and
§ 3-310(P) and Neb. Ct. R. § 3-323(B) within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of suspension.
Javis arvell Jones, appellant, v.
valene m. Jones, appellee.
821 N.W.2d 211
Filed September 21, 2012. 	No. S-11-668.
1. Actions: Dismissal and Nonsuit. Dismissal of a civil action for lack of prosecu-
tion is addressed to the discretion of a trial court, whose ruling, in the absence of
an abuse of discretion, will be upheld on appeal.
2. Courts: Dismissal and Nonsuit. A district court has discretionary power to dis-
miss a case for want of prosecution, and such dismissal is also within the court’s
inherent power.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition.
4. Courts: Dismissal and Nonsuit. The power to dismiss for want of prosecution
is necessary in order to prevent undue delays in the disposition of pending cases
and to avoid congestion in the trial courts.
5. Public Officers and Employees: Prisoners: Courts. Prison officials must
ensure that inmates have adequate, effective, and meaningful access to the courts.
6. Constitutional Law: Trial: Prisoners. Prison inmates have no constitutional
right to be released from prison so that they may be present in person at the trial
of a civil court action.
Petition for further review from the Court of Appeals,
inbody, Chief Judge, and irwin and pirtle, Judges, on appeal
thereto from the District Court for Douglas County, w. mark
ashford, Judge. Judgment of Court of Appeals reversed, and
cause remanded with direction.
Javis Arvell Jones, pro se.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

362 	284 NEBRASKA REPORTS
No appearance for appellee.
heavican, c.J., wright, connolly, stephan, mccormack,
miller-lerman, and cassel, JJ.
cassel, J.
INTRODUCTION
The district court gave a pro se inmate notice of the
court’s intent to dismiss the inmate’s marital dissolution pro-
ceeding but identified two ways of avoiding dismissal. The
inmate timely performed one of the court’s specified actions.
Despite this compliance and without explanation, the court
dismissed the inmate’s complaint. The Nebraska Court of
Appeals affirmed, reasoning that because the prison previously
had denied the inmate transportation and telephone access to
the court, the inmate would be unable to attend any hearing
no matter how many motions he made. We granted further
review. Because (1) the district court abused its discretion in
dismissing the inmate’s complaint without explanation even
though the inmate did what the court instructed and (2) the
Court of Appeals erred in basing its decision on predictions of
future events, we reverse the judgment and remand the cause
with direction.
BACKGROUND
trial court proceedings
While imprisoned, Javis Arvell Jones sought to dissolve his
marriage to Valene M. Jones. We summarize the timeline of the
proceeding as follows:
• October 4, 2010: Javis files complaint for dissolution of mar-
riage (no children).
• October 13, 2010: Summons is personally served on Valene.
• November 10, 2010: Valene writes letter to judge asking for
“postponement.”
• December 2, 2010: Javis writes letter to court clerk, stating
that he had not heard of any response to his filing and inquir-
ing about “what stage the process is in at this time.”
• January 26, 2011: Javis writes letter to bailiff, stating that he
had been unsuccessful in obtaining clearance in order to call

JONES v. JONES 	363
Cite as 284 Neb. 361
for hearing date and that he would not be able to get clear-
ance to add court’s telephone number “until well after the
expiration date of [his] filing.”
• January 28, 2011: Javis writes another letter to bailiff.
• February 4, 2011: Javis writes letter to bailiff, stating that
prison will not transport him for March 4 hearing and asking
that teleconference hearing be scheduled instead.
• April 28, 2011: Javis files motion for default judgment.
• April 28, 2011: Javis writes letter to bailiff asking that tele-
conference hearing be scheduled on his motion for default
judgment.
• June 2, 2011: Court administrator issues “Notice of Intent
to Dismiss,” informing parties that within 30 days, they
must either submit proposed scheduling order or request that
scheduling conference be held in order to avoid dismissal.
• June 28, 2011: Javis files verified motion for pretrial sched-
uling conference, asking that his appearance for scheduling
conference be by teleconference.
• July 5, 2011: District court summarily dismisses complaint
for lack of prosecution.
We note that Valene’s November 2010 letter was the extent
of her participation in this case. We also observe that the record
does not show that the district court ever conducted a hearing
on Javis’ motion for default judgment or expressly made a rul-
ing disposing of the motion.
appeal
Javis timely appealed to the Court of Appeals, assigning that
the district court erred in (1) failing to schedule a hearing on
and disregarding his motion for default judgment, (2) failing to
schedule a hearing on and disregarding his motion for a pretrial
scheduling conference, and (3) dismissing his complaint for
lack of prosecution. Javis raised no constitutional argument or
challenge, either before the district court or before the Court
of Appeals.
The Court of Appeals affirmed via a memorandum opinion
filed on May 15, 2012. The court observed that there was no
bill of exceptions and limited its review to a consideration of
whether the record supported the district court’s judgment. In

364 	284 NEBRASKA REPORTS
doing so, the Court of Appeals focused on the dismissal of
Javis’ case. The court noted that “Javis was active in the case,”
but that the prison “denied Javis telephone access and trans-
portation to the court, and thus, no matter how many motions
Javis makes to the court, he will be unable to attend any hear-
ing either in open court or via teleconference.” Despite the
absence of any arguments based on constitutional claims, the
court extensively discussed the due process rights of prison
inmates. The Court of Appeals concluded that the district court
did not abuse its discretion by dismissing the complaint for
lack of prosecution and declined to address Javis’ other assign-
ments of error.
We granted in part Javis’ petition for further review, for
the limited purpose of reviewing the dismissal for lack of
prosecution, and ordered that the appeal be submitted without
oral argument.1
ASSIGNMENTS OF ERROR
On further review, Javis assigns the following three errors:
1. The Court of Appeals abused its discretion by mak-
ing an erroneous and unconstitutional assertion as key to
its affirmance of the abuses of discretion which comprises
the district court’s dismissal of [Javis’] case for lack of
prosecution. . . .
2. The Court of Appeals asserts erroneously that the
district court did not abuse its discretion by disregarding
[Javis’] motion for default judgment because “the court
cannot make a finding that the marriage is irretrievably
broken based upon pleadings alone.” . . .
3. As excuse for its affirmance of the district court’s
abuses of discretion inherent to denying [Javis] any rem-
edy by due course of law and justice administered, the
Court of Appeals erroneously offers as fact that [the
prison] would only have denied [Javis] telephone access
to appear at any requested teleconference hearings, had
such requests not been disregarded by the district court.
1 See Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008).

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Cite as 284 Neb. 361
STANDARD OF REVIEW
[1] Dismissal of a civil action for lack of prosecution is
addressed to the discretion of a trial court, whose ruling,
in the absence of an abuse of discretion, will be upheld
on appeal.2
ANALYSIS
[2] We limit our review to a consideration of the propriety
of the dismissal of the complaint for lack of prosecution. The
Court of Appeals correctly recited that a district court has dis-
cretionary power to dismiss a case for want of prosecution and
that such dismissal is also within the court’s inherent power.3
The Court of Appeals also correctly recognized that Javis had
been “active” in the case, that a notice of intent to dismiss
sent to Javis informed him that his case would be dismissed
for lack of prosecution unless he either submitted a proposed
scheduling order or requested a scheduling conference, and
that Javis timely filed a motion for a pretrial scheduling con-
ference. In our view, the district court abused its discretion
in dismissing Javis’ complaint for lack of prosecution when
Javis complied with one of the two options provided to him to
avoid dismissal.
[3,4] The district court gave no explanation for its sum-
mary dismissal despite Javis’ clear compliance with one of the
alternatives specified in the court’s notice. A judicial abuse of
discretion exists when reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for dispo-
sition.4 In the case before us, the court’s action was untenable
because it directly contradicted its own notice and was done
without any attempt to explain the contradiction. We have said
that the power to dismiss for want of prosecution is necessary
in order to prevent undue delays in the disposition of pending
2 Billups v. Jade, Inc., 240 Neb. 494, 482 N.W.2d 269 (1992).
3 See, Neb. Rev. Stat. § 25-1149 (Reissue 2008); Talkington v. Womens
Servs., 256 Neb. 2, 588 N.W.2d 790 (1999).
4 Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d
249 (2011).

366 	284 NEBRASKA REPORTS
cases and to avoid congestion in the trial courts.5 And we are
not here presented with a dismissal based upon a litigant’s fail-
ure to obey an order of the court.6 Rather, the district court’s
notice informed Javis that he could avoid dismissal by request-
ing a scheduling conference. He made the request, but the court
dismissed his case anyway and provided no explanation why it
did so. In doing so, the court abused its discretion.
[5,6] The Court of Appeals erred when it affirmed the
district court’s dismissal based upon its prediction that Javis
would be unable to appear or participate in any hearing. The
Court of Appeals should have focused on the actions of the
district court contained in the record rather than on predic-
tions about future events. As Javis points out, the record
reveals no ruling by the district court on his requests for a
teleconference hearing. Thus, the record does not demonstrate
that the prison would deny him the ability to participate in
a scheduled hearing via telephone. After all, prison offi-
cials must ensure that inmates have “adequate, effective, and
meaningful” access to the courts.7 But we again emphasize
that prison inmates have no constitutional right to be released
from prison so that they may be present in person at the trial
of a civil court action.8
CONCLUSION
On further review, we reverse the Court of Appeals’ affirm-
ance of the district court’s dismissal of Javis’ complaint for
lack of prosecution and remand the cause to the Court of
Appeals with direction to reverse the district court’s dismissal
of the complaint.
reversed and remanded with direction.
5 See Talkington v. Womens Servs., supra note 3.
6 See, Neb. Rev. Stat. § 25-601 (Reissue 2008); Christianson v. Educational
Serv. Unit No. 16, 243 Neb. 553, 501 N.W.2d 281 (1993).
7 See Bounds v. Smith, 430 U.S. 817, 822, 97 S. Ct. 1491, 52 L. Ed. 2d 72
(1977).
8 Wilson v. Wilson, 238 Neb. 219, 469 N.W.2d 750 (1991).