Dewey v. Nebraska Dept. of Corr. Servs.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
DEWEY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 33 Neb. App. 483
Michael Dewey, appellant, v. Nebraska Department
of Correctional Services, appellee.
___ N.W.3d ___
Filed February 25, 2025. 	No. A-24-111.
1. 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.
2. Affidavits: Judgments. If an in forma pauperis application is filed,
the court has the statutory authority and duty to grant or deny the
application.
3. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Reversed and remanded for further
proceedings.
Michael Dewey, pro se.
No appearance by appellee.
Riedmann, 	Chief 	Judge, 	and 	Bishop 	and 	Arterburn,
Judges.
Arterburn, Judge.
INTRODUCTION
Michael Dewey, an inmate in the custody of the Nebraska
Department of Correctional Services (DCS), was sanctioned
for two rule violations while incarcerated. Dewey filed a peti-
tion seeking judicial review of his disciplinary sanction in the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:29 AM CDT

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
DEWEY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 33 Neb. App. 483
district court for Lancaster County. Dewey also filed a motion
to proceed in forma pauperis and an affidavit of poverty in
support of his motion. Before ruling on Dewey’s motion,
the court ordered Dewey to provide a certified copy of his
inmate account within 20 days of its order. Dewey failed to
comply. Consequently, the court closed the case without rul-
ing on Dewey’s in forma pauperis application. For the reasons
set forth below, we find that the district court abandoned its
statutory duty to rule on Dewey’s application. We reverse the
district court’s order closing the case and remand the cause
for further proceedings.
BACKGROUND
Our record contains only a transcript from the district
court. Accordingly, we rely on Dewey’s petition to summarize
the DCS proceedings below. While incarcerated, Dewey was
charged with two DCS rule violations: drug or intoxicant abuse
and violation of regulations. The disciplinary committee found
Dewey guilty of both violations and imposed as punishment 30
days’ room restriction, 30 days’ loss of good time, and 60 days’
visit restriction. Dewey appealed to the DCS appeals board,
which upheld the disciplinary committee’s decision.
On December 18, 2023, pursuant to Neb. Rev. Stat. § 84-917
(Cum. Supp. 2024), Dewey filed his petition for judicial review
in the district court. He also filed a motion to proceed in
forma pauperis and an affidavit in support of his motion. On
December 20, the court issued an order instructing Dewey to
file a certified copy of his inmate account. The order stated,
“If the Certificate is not filed within . . . 20 days, this case will
stand dismissed.”
On January 17, 2024, the court issued an order closing
the case due to Dewey’s failure to timely provide a copy of
his inmate account. The State of Nebraska never entered an
appearance in the district court. On January 22, a certified
copy of Dewey’s inmate account was filed. On February 13,
Dewey filed three documents. The first document was titled
“Amended Notice of Appeal,” indicating his appeal to this

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
DEWEY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 33 Neb. App. 483
court. The record does not contain any prior notices of appeal.
Dewey also filed a motion to proceed in forma pauperis on
appeal to this court, which was granted by the district court.
Finally, Dewey filed a motion to vacate the district court’s order
closing the case. The district court determined that it lacked
jurisdiction to address that motion due to Dewey’s appeal.
The State has not appeared on appeal other than to send a
letter indicating its waiver of appearance.
ASSIGNMENTS OF ERROR
Dewey assigns that the district court erred in (1) denying his
motion to proceed in forma pauperis and (2) not granting him
an evidentiary hearing on his motion to vacate.
STANDARD OF REVIEW
[1] A district court’s denial of in forma pauperis status is
reviewed de novo on the record based on the transcript of the
hearing or written statement of the court. Sabino v. Ozuna,
303 Neb. 318, 928 N.W.2d 778 (2019).
ANALYSIS
Motion to Proceed In Forma Pauperis.
Dewey asserts that the district court erred when it denied
his motion to proceed in forma pauperis. Neb. Rev. Stat.
§ 25-2301.01 (Reissue 2016) provides:
Any 	county 	or 	state 	court, 	except 	the 	Nebraska
Workers’ Compensation Court, may authorize the com-
mencement, prosecution, defense, or appeal therein, of a
civil or criminal case in forma pauperis. An application
to proceed in forma pauperis 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
belief that he or she is entitled to redress.
Under Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2016),
an application to proceed in forma pauperis shall be granted
unless there is an objection that the party filing the application

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
DEWEY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 33 Neb. App. 483
(a) has sufficient funds to pay costs, fees, or security or (b)
is asserting legal positions which are frivolous or malicious.
Section 25-2301.02(1) also provides that the objection to the
application shall be made within 30 days after the filing of
the application or at any time if the ground for the objection
is that the initial application was fraudulent. Such objection
may be made by the court on its own motion or on the motion
of any interested person and must specifically set forth the
grounds of the objection under § 25-2301.02(1).
Section 25-2301.02(1) also states that an evidentiary hear-
ing shall be conducted on the objection 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. If no hearing is held, the court shall provide a
written statement of its reasons, findings, and conclusions
for denial of the application which shall become a part of the
record. Id. Importantly, if an objection is sustained, the party
filing the application shall have 30 days after the ruling or
issuance of the statement to proceed with an action or appeal
upon payment of fees, costs, or security notwithstanding the
subsequent expiration of any statute of limitations or deadline
for appeal. Id.
The wrinkle in this case is that the district court never ruled
on Dewey’s application to proceed in forma pauperis. Instead,
the court entered an order that deferred its ruling on Dewey’s
application and gave Dewey 20 days to submit a certified
copy of his inmate account. When he failed to do so, the court
closed the case.
In Haynes v. Nebraska Dept. of Corr. Servs., 314 Neb.
771, 993 N.W.2d 97 (2023), an inmate was sanctioned for
drug use while in prison and sought judicial review of his
disciplinary sanction. The district court considered the merits
of the petition and found that the DCS appeals board did not
err in upholding the disciplinary committee’s decision. The
inmate subsequently filed a notice of appeal, accompanied by
a motion and affidavit for leave to proceed in forma pauperis.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
DEWEY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 33 Neb. App. 483
The district court deferred ruling on the inmate’s motion until
it received a certified copy of his inmate account. The court
warned the inmate that if the document were not filed within
30 days, the motion would be denied and the case would be
dismissed. The Nebraska Supreme Court’s record did not
include an order of the district court granting or denying the
inmate’s in forma pauperis request. Consequently, DCS ques-
tioned whether the Supreme Court had jurisdiction.
[2] The Supreme Court found that it had jurisdiction of
the appeal, even though the record did not include an order
granting or denying the inmate’s request. The Supreme Court
determined that the inmate perfected his appeal when he timely
filed his notice of appeal and application and affidavit to pro-
ceed in forma pauperis. The Supreme Court then went on to
find the following:
Though the district court had the statutory authority to
grant or deny [the inmate’s] in forma pauperis applica-
tion, we are unaware of any authority the district court
had to dismiss [the inmate’s] appeal. With that being
said, by not ruling on the application, the district court
functionally abandoned its statutory duty to determine the
validity of [the inmate’s] affidavit.
Id. at 779, 993 N.W.2d at 103.
Although the procedural posture in this case differs some-
what from the one in Haynes v. Nebraska Dept. of Corr.
Servs., supra, we find the Supreme Court’s instructions on
in 	forma 	pauperis 	applications 	and 	rulings 	enlightening.
Applying those principles here, we find that the district court
did not have the authority to close Dewey’s case based solely
on his failure to timely file a certified copy of his inmate
account. Section 25-2301.02(1) does not provide the court
with such power. Instead, § 25-2301.02(1) states that an in
forma pauperis application shall be granted unless there is an
objection. Section 25-2301.02(1) also states that if there is an
objection, an evidentiary hearing shall be conducted unless

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
DEWEY v. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 33 Neb. App. 483
the objection is by the court and asserts that the applicant’s
legal positions are frivolous or malicious.
In this case, the district court deferred its ruling on Dewey’s
application and ordered Dewey to provide a certified copy of
his inmate account. Whether that order qualifies as an objec-
tion to Dewey’s application is unclear. But even if we were
to interpret the order as an objection, the court nonetheless
failed to hold an evidentiary hearing in accordance with
§ 25-2301.02(1). The court also failed to definitively rule on
Dewey’s application as required by the statute. Had the court
done so and denied the application, Dewey was to be given
30 days to pay the required fees in order to proceed with his
petition for judicial review. Dewey was deprived of the oppor-
tunity to pay when the court closed the case without ruling
on the application. Thus, for all these reasons, we find that
the court functionally abandoned its statutory duty to deter-
mine the validity of Dewey’s affidavit and rule on Dewey’s
in forma pauperis application. We therefore remand the cause
back to the district court to rule on Dewey’s motion to pro-
ceed in forma pauperis in accordance with § 25-2301.02.
Motion to Vacate.
[3] Having found that the district court erred in closing
Dewey’s case, we need not consider Dewey’s other assigned
error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and con-
troversy before it. In re Interest of Jordon B., 316 Neb. 974, 7
N.W.3d 894 (2024).
CONCLUSION
Because the district court failed to rule on Dewey’s motion
to proceed in forma pauperis, we reverse the court’s order dis-
missing the case and remand the cause for further proceedings
consistent with this opinion.
Reversed and remanded for
further proceedings.