Jackson v. Rodriguez

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
Dennis C. Jackson, appellant, v.
Maria Rodriguez et al., appellees.
___ N.W.3d ___
Filed March 28, 2025. 	No. S-24-133.
1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
dictional issue which does not involve a factual dispute is a matter of
law which requires an appellate court to reach its conclusions indepen-
dent from a trial court.
2. Appeal and Error. Although an appellate court ordinarily considers
only those errors assigned and discussed in the briefs, the appellate court
may, at its option, notice plain error.
3. ____. Plain error is error plainly evident from the record and of such a
nature that to leave it uncorrected would result in damage to the integ-
rity, reputation, or fairness of the judicial process.
4. Affidavits: Appeal and Error. A district court’s denial of in forma pau-
peris status is reviewed de novo on the record based on the transcript of
the hearing or written statement of the court.
5. Agents: Counties: Fees. A clerk of the district court is an agent of the
county, is required to collect the fees due to his or her office, and has no
authority to extend credit.
6. Fees. It is not only the right but the duty of the clerk of the district court
to require the payment of fees in advance.
7. Statutes: Fees: Costs. Nebraska’s in forma pauperis statutes were
enacted to provide a mechanism to permit filings by persons who are
unable to pay the fees and costs.
8. Courts: Affidavits. Challenges to the ability of a defendant to proceed
in forma pauperis are to occur in the district court, and the district court
is charged with the responsibility of granting or denying a motion to
proceed in forma pauperis.
9. Fees: Costs. Upon the filing of an application in forma pauperis to
commence an action, Neb. Rev. Stat. § 25-2301.02 (Reissue 2016)
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:21 AM CDT

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
authorizes a court to (1) grant the application; (2) object to the applica-
tion on the basis that the applicant has sufficient funds to pay costs, fees,
or security, and thereafter conduct an evidentiary hearing before grant-
ing or denying the application; or (3) object to the application on the
basis that the proposed complaint or petition is asserting legal positions
that are frivolous or malicious and promptly file a written statement of
its reasons, findings, and conclusions for denial of the application.
10. Constitutional Law: Judgments. Except in those cases where the denial
of in forma pauperis status would deny a defendant his or her constitu-
tional right to appeal in a felony case, Neb. Rev. Stat. § 25-2301.02
(Reissue 2016) allows the court, on its own motion, to deny in forma
pauperis status on the basis that the legal positions asserted by the appli-
cant are frivolous or malicious, provided that the court issue a written
statement of its reasons, findings, and conclusions for denial.
11. 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.
12. 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.
13. Statutes: Appeal and Error. The right of appeal in Nebraska is purely
statutory, and unless a statute provides for an appeal from the decision
of a quasi-judicial tribunal, such right does not exist.
14. ____: ____. Neb. Rev. Stat. § 25-2301.02 (Reissue 2016) provides a
statutory right of interlocutory appellate review of a decision denying in
forma pauperis eligibility.
15. Jurisdiction: Affidavits: Appeal and Error. An appellate court obtains
jurisdiction over an appeal upon the timely filing of a notice of appeal
and a proper in forma pauperis application and affidavit, without literal
payment of the fees, costs, or security mentioned in Neb. Rev. Stat.
§ 25-2301.02(1) (Reissue 2016).
Appeal from the District Court for Johnson County, Ricky
A. Schreiner, Judge. Reversed and remanded.
Dennis C. Jackson, pro se.
No appearance by appellees.
Funke, C.J., Miller-Lerman, Cassel, Stacy, and Papik,
JJ.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
Cassel, J.
INTRODUCTION
Dennis C. Jackson, a prison inmate, sought judicial review
in the district court for Johnson County of an agency’s final
decision pursuant to the Administrative Procedure Act (APA). 1
Without explicitly ruling on Jackson’s initial application to
proceed in forma pauperis (IFP), 2 the court dismissed the
APA petition as untimely. Jackson appeals. Because the court
implicitly denied the application, the appeal vested jurisdic-
tion in this court to address that denial. Finding plain error
appearing in the record, we reverse the denial and remand the
cause with direction and for further proceedings consistent
with this opinion.
BACKGROUND
The record is deficient, and in this appeal, dates matter.
Because the district court did not explicitly rule upon Jackson’s
application to proceed IFP, service of process was never per-
fected upon the Nebraska Department of Correctional Services
(DCS). And because DCS was not served, the district court
never received—nor do we have—a certified record from DCS.
Rather, the recitation of events below relies upon Jackson’s fil-
ings, including purported copies of DCS documents, together
with the appellate transcript received from the district court.
Jackson 	allegedly 	assaulted 	another 	inmate 	while 	in 	a
prison near Tecumseh, Nebraska. The prison’s Institutional
Disciplinary Committee (IDC) imposed sanctions, and Jackson
appealed to the DCS Appeals Board (the board).
On December 13, 2023, the board entered a written deci-
sion upholding the IDC’s decision. The board’s decision was
“[p]rinted to [Jackson’s] institution” on December 18. Jackson
signed an “Inmate Appeal Board Notice Receipt” showing he
received it on December 20.
1 See Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2024).
2 See Neb. Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
The record suggests that on January 11, 2024, Jackson filed
in the district court an application to proceed IFP. No docu-
ments regarding this request appear in the appellate transcript,
nor were they requested in Jackson’s praecipe for transcript.
But on that date, Jackson, as a self-represented litigant, submit-
ted a petition for judicial review of the board’s decision, and
the petition was file stamped with that date by the clerk of the
district court.
On January 17, 2024, the district court entered an order
stating that it would consider Jackson’s application to proceed
IFP “once the requirements of [the January 17] order are met.”
That order required Jackson to file an amended petition setting
forth a short and plain statement of his claim. (The original
petition occupies 71 pages in the appellate transcript.) The
order “allowed 15 days to file [the] amended petition pursuant
to [the January 17] order.” (An envelope attached to one of
Jackson’s filings indicates that the order was received by the
prison mailroom on January 23.)
On February 5, 2024, Jackson filed an amended petition.
On that same date, which occurred before the expiration
of the 30-day deadline for service of summons, 3 the court
entered a written order finding Jackson’s petition was untimely
under § 84-917(2)(a)(i) and dismissing it for lack of subject
matter jurisdiction. That order said, “The challenged decision
occurred on November 20, 2023, and [Jackson] did not file his
[petition] until January 17, 2024.”
Jackson quarrels with two dates recited in the February 5,
2024, order. First, he contends that the November 2023 date
was actually the date of the IDC hearing. Second, he recites
the date of filing of his original petition as being on January
11, 2024.
On February 14, 2024 (9 days after the dismissal order),
Jackson filed a “Motion for Reconsideration and Reinstatement,”
generally arguing that the court incorrectly identified the
3 See § 84-917(2)(a)(i).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
pertinent dates in its order and that his petition was timely
filed. The court overruled the motion (without addressing the
application to proceed IFP in the district court).
On February 26, 2024, Jackson filed an appeal to the
Nebraska Court of Appeals. At the same time, Jackson filed
an affidavit and request to proceed IFP on the appeal from the
district court, along with supporting documentation. No ruling
on that second IFP motion appears in the appellate transcript
received from the district court.
In response to a notice of default in the Court of Appeals,
the Attorney General’s office sent a letter to the Clerk of the
Supreme Court and Court of Appeals stating that it “do[es] not
intend to appear in this case for the first time on appeal and
no briefs will be filed by our office for that reason.” The letter
explained that “this case did not advance to a stage in the dis-
trict court that required our office to enter an appearance. This
may be because the district court made a sua sponte decision
or denied [IFP] status or because a party failed to properly
provide service of process.”
We moved the appeal to our docket 4 to consider the merits
of the court’s timeliness determination under the APA—spe-
cifically, what constitutes the date of “service of the final deci-
sion by the agency” 5 in these circumstances: the date it was
“[p]rinted to” the prison or the date on which Jackson actually
received it. Jackson waived oral argument, 6 and, because no
brief had been filed on behalf of any other party, 7 his appeal
was submitted for decision.
After submission, we issued an order to show cause regard-
ing the absence of proof of service of process. Jackson
responded, admitting that summonses had not been served, but
directing the blame to the district court. Jackson asserts that
4 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
5 § 84-917(2)(a)(i).
6 See Neb. Ct. R. App. P. § 2-111(E)(6) (rev. 2022).
7 See § 2-111(E)(4).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
because the court deferred ruling on his application to proceed
IFP until the filing of the amended petition and then, after the
amended petition was filed, dismissed the petition without rul-
ing on the IFP motion, the “proceedings . . . never reached the
point to where [service was accomplished].”
ASSIGNMENT OF ERROR
Jackson assigns that “[t]he district court erred in dismissing
[Jackson’s] petition as untimely and in doing so violated . . .
§ 84-917(2)(a)(i).”
STANDARD OF REVIEW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a
trial court. 8
[2,3] Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. 9 Plain error is error
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. 10
[4] A district court’s denial of IFP status is reviewed de novo
on the record based on the transcript of the hearing or written
statement of the court. 11
ANALYSIS
Implicit Denial of Application
to Proceed IFP
[5,6] For well over a century, we have made it clear that
a clerk of the district court is an agent of the county, is
required to collect the fees due to his or her office, and has
8 Lancaster County v. Slezak, 317 Neb. 157, 9 N.W.3d 414 (2024).
9 Castillo v. Libert Land Holdings 4, 316 Neb. 287, 4 N.W.3d 377 (2024).
10 Id.
11 Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
no authority to extend credit. 12 Indeed, it is not only the right
but the duty of the clerk to require the payment of fees in
advance. 13
In order to file an APA proceeding to challenge the board’s
decision, Jackson ordinarily would have been required to pay
a filing fee before filing his petition. An APA proceeding com-
mences with the filing of a petition in the district court. 14 A
statute requires the court clerk to collect a filing fee. 15 But, by
means of an application to proceed IFP that was not contained
in the appellate transcript but was mentioned in the district
court’s first order, Jackson apparently claimed an inability to
pay the fee.
[7] Nebraska’s IFP statutes 16 were enacted to provide a
mechanism to permit filings by persons who are “unable to pay
the fees and costs.” 17 The statutes were first adopted after the
U.S. Supreme Court granted certiorari to review the constitu-
tionality of a Nebraska cost bond statute. 18
[8] Challenges to the ability of a defendant to proceed
IFP are to occur in the district court, and the district court is
charged with the responsibility of granting or denying a motion
to proceed IFP. 19 One of the IFP statutes contemplates that the
court “may authorize the commencement” of an action. 20 It
seems rudimentary that such authorization must occur before
the clerk is permitted to file a petition.
12 See, Boettcher v. Lancaster County, 74 Neb. 148, 103 N.W. 1075 (1905);
Sheibley v. Dixon County, 61 Neb. 409, 85 N.W. 399 (1901).
13 See id.
14 See § 84-917(2)(a)(i).
15 See Neb. Rev. Stat. § 33-106 (Cum. Supp. 2024).
16 See §§ 25-2301 to 25-2310.
17 § 25-2301.01.
18 See Huffman v. Boersen, 406 U.S. 337, 92 S. Ct. 1598, 32 L. Ed. 2d 107
(1972) (involving challenge to Neb. Rev. Stat. § 25-1914 (Reissue 1964)).
19 State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002).
20 § 25-2301.01.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
[9] Three courses were open to the district court. Upon
the filing of an application IFP to commence an action,
§ 25-2301.02 authorizes a court to (1) grant the application;
(2) object to the application on the basis that the applicant has
sufficient funds to pay costs, fees, or security, and thereafter
conduct an evidentiary hearing before granting or denying the
application; or (3) object to the application on the basis that
the proposed complaint or petition is asserting legal positions
that are frivolous or malicious and promptly file a written
statement of its reasons, findings, and conclusions for denial
of the application. 21
But here, the district court followed none of the statutory
paths. We know that the court did not grant the application,
because the court’s first order explicitly deferred ruling on the
application until the filing of the amended petition. By defer-
ring action, the court left both Jackson and the court clerk in
limbo. Jackson could not obtain the certified record from DCS
until his application was granted and summonses were issued.
The clerk was left without an order granting leave to proceed
IFP and potentially liable for an uncollected filing fee.
Then, when the court dismissed the petition without explic-
itly ruling on the application IFP, it compounded the error.
It appears from the documents available to us that the basis
of the dismissal—an untimely petition—was incorrect. If, as
Jackson’s petition appears to show, the board’s decision was
made on December 13, 2023, and given that the original peti-
tion in the district court was filed on January 11, 2024, the
proceeding was instituted within 30 days of DCS’ final deci-
sion. This calculation would not rely on a particular date when
service was accomplished. Based on these dates, it matters
not whether the decision was deemed to have been “served”
on the date it was memorialized (December 13), on the date
21 See § 25-2301.02(1). See, also, Cole v. Blum, 262 Neb. 1058, 637 N.W.2d
606 (2002).

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
it was “[p]rinted to” the prison (December 18), or on the date
Jackson signed a receipt (December 20).
Although the February 5, 2024, order did not rule explicitly,
it terminated the action and implicitly denied leave to proceed
IFP. The only basis discernible from the district court’s order
was timeliness.
Of the three courses available to the court on the initial
application to proceed IFP, only one could apply. We rule
out the first one, because we cannot read either of the court’s
orders as granting the application. Nor is there any indication
that the court believed that Jackson had “sufficient funds”
to pay the fees. This leaves only the third option—purported
assertion of frivolous or malicious legal positions.
[10,11] Long ago, we held:
Except in those cases where the denial of [IFP] status
“would deny a defendant his or her constitutional right
to appeal in a felony case,” § 25-2301.02 allows the
court “on its own motion” to deny [IFP] 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.” 22
As we then explained, a frivolous legal position is one wholly
without merit, that is, without rational argument based on the
law or on the evidence. 23
Two questions follow from this implicit denial of IFP status.
First, do we have jurisdiction of the appeal? Second, given
Jackson’s assignment of error addressing only timeliness, does
plain error appear in the record? We address each in turn.
Jurisdiction of Appeal
From Implicit Denial
[12] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
22 Cole v. Blum, supra note 21, 262 Neb. at 1061, 637 N.W.2d at 609.
23 Id.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
jurisdiction over the matter before it. 24 Where a lower court
lacks subject matter jurisdiction to adjudicate the merits of
a claim, issue, or question, an appellate court also lacks the
power to determine the merits of the claim, issue, or question
presented to the lower court. 25
[13] Appeal statutes establish jurisdictional prerequisites.
The right of appeal in Nebraska is purely statutory, and unless
a statute provides for an appeal from the decision of a quasi-
judicial tribunal, such right does not exist. 26 When a statute
confers authority on the courts to review administrative deci-
sions, the requirements of the statute are mandatory and must
be complied with before the court acquires jurisdiction. 27
The filing of the petition and the service of summons are
the two actions necessary to establish the jurisdiction of the
district court to review the final decision of an administra-
tive agency under the APA. 28 Here, a petition was submitted
along with an application to proceed IFP. But no service was
accomplished. Service of summons in the manner required by
§ 84-917 is a prerequisite to the exercise by the district court
of its jurisdiction over the subject matter on an appeal from an
adverse decision of an administrative agency. 29 The absence
of service would suggest that the district court never acquired
subject matter jurisdiction.
[14,15] But here, another statute prescribes an order of oper-
ations based on the denial of the application to proceed IFP.
Section 25-2301.02 provides a statutory right of interlocutory
24 In re Estate of Weeder, ante p. 393, 16 N.W.3d 137 (2025).
25 Id.
26 Perkins Cty. Bd. of Equal. v. Mid America Agri Prods., 317 Neb. 1, 8
N.W.3d 716 (2024).
27 Id.
28 J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
29 Perkins Cty. Bd. of Equal. v. Mid America Agri Prods., supra note 26.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
appellate review of a decision denying IFP eligibility. 30 An
appellate court obtains jurisdiction over an appeal upon the
timely filing of a notice of appeal and a proper IFP applica-
tion and affidavit, without literal payment of the fees, costs, or
security mentioned in § 25-2301.02(1). 31
Both requirements for an interlocutory appeal were satis-
fied. On February 5, 2024, the district court implicitly denied
Jackson’s application to commence the APA proceeding IFP.
On February 26, Jackson filed his notice of appeal and a proper
application and affidavit to proceed IFP on appeal. The fil-
ings occurred within 30 days after the final order. 32 We have
jurisdiction of Jackson’s interlocutory appeal from the implicit
denial of his original application to proceed IFP.
Plain Error Appears in Record
As noted above, a district court’s denial of IFP status is
reviewed de novo on the record based on the transcript of the
hearing or written statement of the court. 33 We ordinarily con-
sider only those errors assigned and discussed in the briefs. 34
Jackson did not assign error to the denial of his first applica-
tion to proceed IFP.
Nonetheless, under the circumstances here, that denial was
plainly erroneous. First, it circumvented the statutory pro-
cedure, which would have presented an agency record and
enabled service of process within 30 days. Second, even rely-
ing solely on Jackson’s initial petition for review (which we
agree was the antithesis of a short and plain statement), the
reasoning of the district court’s denial was untenable. It was
no less untenable regarding the amended petition. Neither the
original nor the amended petition supported a finding that
30 Smith v. Wedekind, 302 Neb. 387, 923 N.W.2d 392 (2019).
31 Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
32 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2024).
33 Mumin v. Frakes, supra note 11.
34 See Castillo v. Libert Land Holdings 4, supra note 9.

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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
“[t]he challenged decision occurred on November 20, 2023,
and [Jackson] did not file his [petition] until January 17, 2024.”
Jackson’s petitions were neither frivolous nor malicious.
The denial of Jackson’s initial application to proceed IFP,
coupled with the apparent misunderstanding regarding the
dates of DCS’ final decision and the filing of the petition,
erroneously deprived Jackson of his statutory right to judicial
review. Leaving it uncorrected would result in damage to the
integrity, reputation, or fairness of the judicial process. We
therefore reverse the denial and remand the cause with direc-
tion to grant Jackson’s initial application to proceed IFP and
for further proceedings consistent with this opinion.
We are aware that in Dewey v. Nebraska Dept. of Corr.
Servs., 35 the Court of Appeals addressed an application to pro-
ceed IFP at the commencement of an APA review proceeding.
In doing so and explicitly acknowledging the distinction, the
court relied to some degree upon this court’s earlier decision
in Haynes v. Nebraska Dept. of Corr. Servs., 36 which addressed
an application to proceed IFP on appeal. Other than to high-
light that distinction, we make no comment upon the decision
in Dewey.
CONCLUSION
As set forth in the analysis, we conclude the following:
• The district court erred in deferring ruling upon, and later
implicitly denying, Jackson’s initial application to proceed
IFP. Under the circumstances here, the denial was plainly
erroneous.
• At the outset, the court should have employed one of the three
statutory paths available to it.
35 Dewey v. Nebraska Dept. of Corr. Servs., 33 Neb. App. 483, ___ N.W.3d
___ (2025).
36 Haynes v. Nebraska Dept. of Corr. Servs., 314 Neb. 771, 993 N.W.2d 97
(2023).

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JACKSON v. RODRIGUEZ
Cite as 318 Neb. 657
We therefore reverse the denial and remand the cause with
direction to grant the initial application to proceed IFP and for
further proceedings consistent with this opinion.
Reversed and remanded.
Freudenberg, J., not participating.