Jackson v. Rodriguez: Nebraska Supreme Court Requires Pre‑Filing Resolution of In Forma Pauperis Requests; Implicit Denials Are Immediately Appealable

Citation: 318 Neb. 657 (Neb. Mar. 28, 2025)

Court: Supreme Court of Nebraska

Authoring Justice: Cassel, J. (Freudenberg, J., not participating)

Introduction

In Jackson v. Rodriguez, the Nebraska Supreme Court addressed a recurring and often overlooked procedural problem: what happens when a district court defers ruling on a litigant’s request to proceed in forma pauperis (IFP), then dismisses the case without ever deciding that request. The Court held that such a dismissal amounts to an implicit denial of IFP status, which is immediately appealable under Nebraska’s IFP statute. It further held that the district court committed plain error by bypassing the statutory IFP framework and by misapprehending the timeliness of the prisoner’s Administrative Procedure Act (APA) petition.

The case arose from a prison disciplinary appeal. Dennis C. Jackson, an incarcerated and self-represented litigant, sought judicial review of a Nebraska Department of Correctional Services (DCS) Appeals Board decision under the APA. He submitted an IFP application and a petition for review. The district court deferred ruling on IFP, then dismissed for untimeliness without ever deciding the IFP request. On appeal, the Nebraska Supreme Court reversed, holding that the trial court’s course of action violated the statutory scheme governing IFP applications, and that the implicit denial of IFP was plainly erroneous.

Summary of the Opinion

• The district court’s failure to decide Jackson’s IFP application before dismissing his APA petition constituted an implicit denial of IFP status.
• An implicit denial of IFP is immediately appealable under Neb. Rev. Stat. § 25-2301.02; appellate jurisdiction is perfected upon timely notice of appeal and a proper IFP application and affidavit for the appeal, without payment of fees.
• The district court committed plain error by (a) not following § 25-2301.02’s mandated pathways for IFP determinations and (b) erroneously deeming Jackson’s petition untimely.
• The Supreme Court reversed and remanded with directions to grant Jackson’s initial IFP application and proceed consistent with the opinion.
• The Court did not decide the broader question it initially flagged when moving the case to its docket—namely, what counts as “service of the final decision by the agency” under § 84-917(2)(a)(i) in the prison discipline context—because the IFP error resolved the appeal.

Background and Procedural Timeline

• December 13, 2023: DCS Appeals Board issues its final decision upholding discipline.
• December 18, 2023: Decision “[p]rinted to” Jackson’s institution; December 20: Jackson signs a receipt acknowledging receipt.
• January 11, 2024: Jackson submits an IFP application and a petition for judicial review to the district court; the clerk file-stamps the petition that day.
• January 17, 2024: The district court orders Jackson to amend his petition within 15 days and expressly defers ruling on IFP “once the requirements of [the] order are met.”
• February 5, 2024: Before the 30-day service period lapses, Jackson files an amended petition; the court dismisses for lack of subject matter jurisdiction, stating the petition is untimely under § 84-917(2)(a)(i). The order recites November 20, 2023, as the “challenged decision” date and January 17, 2024, as the filing date.
• February 14, 2024: Jackson moves for reconsideration, arguing timeliness and date errors. The district court overrules the motion without addressing IFP.
• February 26, 2024: Jackson files a notice of appeal and an IFP application for the appeal. The Attorney General’s office declines to appear, noting the case never advanced to a stage requiring its participation.
• Nebraska Supreme Court transfers the case to its docket, later issues an order to show cause about service of process (none had occurred), and ultimately resolves the appeal on the IFP issue.

Analysis

Precedents and Authorities Cited

• IFP framework and review:
  • Neb. Rev. Stat. §§ 25-2301 to 25-2310 (Reissue 2016): Nebraska’s IFP statutes, enacted to allow filings by those “unable to pay the fees and costs.”
  • § 25-2301.02: Authorizes courts to (1) grant IFP; (2) object and hold a hearing if the applicant has funds; or (3) object and deny if the claims are frivolous or malicious, but only by promptly issuing written reasons, findings, and conclusions.
  • Cole v. Blum, 262 Neb. 1058, 637 N.W.2d 606 (2002): Confirms courts may deny IFP on their own motion as frivolous or malicious, but must issue written reasons; defines “frivolous” as wholly without merit.
  • Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017): Denials of IFP are reviewed de novo on the record.
• Appellate jurisdiction for IFP denials:
  • § 25-2301.02: Provides a statutory right to interlocutory appellate review of decisions denying IFP eligibility.
  • Smith v. Wedekind, 302 Neb. 387, 923 N.W.2d 392 (2019): Confirms interlocutory review rights.
  • Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004): Appellate jurisdiction vests on timely notice of appeal and a proper IFP affidavit—without payment of fees.
• APA jurisdictional prerequisites:
  • Neb. Rev. Stat. § 84-917(2)(a)(i): APA judicial review is initiated by filing a petition; service of summons is required within 30 days; both filing and service are mandatory to invoke district court jurisdiction.
  • J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893 (2017) and Perkins Cty. Bd. of Equal. v. Mid America Agri Prods., 317 Neb. 1, 8 N.W.3d 716 (2024): Reinforce that APA filing and service requirements are jurisdictional.
• Clerk’s duty to collect fees and the no-credit rule:
  • Boettcher v. Lancaster County, 74 Neb. 148, 103 N.W. 1075 (1905) and Sheibley v. Dixon County, 61 Neb. 409, 85 N.W. 399 (1901): A clerk is an agent of the county with the duty to collect fees in advance and no authority to extend credit.
  • Neb. Rev. Stat. § 33-106: Filing fees statute.
• Jurisdiction and plain error:
  • Lancaster County v. Slezak, 317 Neb. 157, 9 N.W.3d 414 (2024): Jurisdictional issues are reviewed independently as matters of law.
  • Castillo v. Libert Land Holdings 4, 316 Neb. 287, 4 N.W.3d 377 (2024): Defines plain error as error plainly evident whose correction is necessary to preserve integrity, reputation, or fairness of the judicial process.
  • In re Estate of Weeder, 318 Neb. 393, 16 N.W.3d 137 (2025): Confirms the court’s duty to examine its jurisdiction.
• Context:
  • Huffman v. Boersen, 406 U.S. 337 (1972): U.S. Supreme Court’s review of a Nebraska cost-bond statute prompted adoption of the IFP statutes—a historical backdrop for ensuring access to courts.
  • Haynes v. Nebraska Dept. of Corr. Servs., 314 Neb. 771, 993 N.W.2d 97 (2023): Addressed IFP on appeal. The Court of Appeals’ Dewey v. Nebraska Dept. of Corr. Servs., 33 Neb. App. 483 (2025), discussed IFP at the commencement of an APA case. The Supreme Court here notes but does not opine on Dewey.

Legal Reasoning

1. IFP must be decided before the case moves forward: The Court underscored a foundational sequence: a clerk cannot accept a filing without the fee, and has no authority to extend credit. For those unable to pay, the IFP statutes provide the mechanism to commence an action. The court “may authorize the commencement” only by following § 25-2301.02’s prescribed routes: grant, object-and-hear (ability to pay), or object-and-deny as frivolous/malicious with a written statement of reasons. Deferring a decision left both the litigant and the clerk in limbo and blocked service and record preparation that are essential to APA review.
2. The district court’s dismissal was an implicit denial of IFP status: Because the court neither granted IFP, nor held a hearing or issued written reasons denying IFP as frivolous/malicious, its dismissal functioned as an implicit denial. The only discernible basis was “untimeliness,” but the dates in the record showed the petition was submitted within 30 days of the agency’s final decision (even under the earliest of the dates the court might consider: decision date, print-to-prison date, or inmate-receipt date). The untimeliness rationale could not sustain a denial of IFP as frivolous, given that “frivolous” means wholly without merit.
3. Appellate jurisdiction exists for implicit IFP denials, even if the district court lacked subject matter jurisdiction over the underlying APA case: The Court made an important jurisdictional distinction. While APA jurisdiction in the district court requires both filing and service of summons, § 25-2301.02 separately authorizes interlocutory appellate review of IFP denials. Under Glass v. Kenney, appellate jurisdiction is perfected by timely notice of appeal with a proper IFP affidavit, without fee payment. Jackson satisfied both requirements; thus, the Supreme Court had jurisdiction to review the implicit IFP denial.
4. Plain error justified reversal and a directive to grant IFP: Although Jackson did not assign error to the IFP denial (he challenged only timeliness), the Supreme Court exercised its discretion to notice plain error. The statutory procedure was bypassed, and the misstatement of key dates suggested a fundamentally flawed basis for treating the petition as frivolous. The Court reversed and remanded with instructions to grant Jackson’s IFP application and proceed under the APA.

Impact and Practical Consequences

• For trial judges: Decide IFP requests at the outset. Do not defer and then dismiss without ruling. If denying as frivolous or malicious, you must promptly issue a written statement of reasons, findings, and conclusions. If you believe the applicant can pay, object and hold an evidentiary hearing before deciding.
• For clerks of the district court: You cannot file a case unless fees are collected or the court authorizes IFP. The opinion reiterates the longstanding “no-credit” rule and makes clear that authorization to commence must precede filing.
• For litigants (especially incarcerated or indigent litigants): An implicit denial of IFP (e.g., when the court dismisses without ruling) is immediately appealable. File a timely notice of appeal and an IFP affidavit for the appeal to vest appellate jurisdiction without paying fees.
• For APA practice: This decision guards against a procedural cul-de-sac where IFP deferral prevents service and record preparation, which then becomes the basis for dismissal. It restores the correct order of operations: resolve IFP, then proceed to service and record assembly, and only then adjudicate jurisdictional and merits questions.
• For the law of frivolousness: Denying IFP on frivolousness grounds requires a rational basis in law or evidence. Misapprehension of dates or statutory timeliness does not render a petition “wholly without merit.” Absent the required written findings, a denial risks reversal—potentially as plain error.
• Unresolved issue signaled, not decided: The Court flagged but did not decide what constitutes “service of the final decision by the agency” in prison-discipline APA cases (print-to-prison versus actual receipt). That question remains open for another day.

Complex Concepts Simplified

• In forma pauperis (IFP): Permission to start or pursue a case without paying court fees because the party is indigent. In Nebraska, § 25-2301.02 governs how courts must handle IFP applications.
• Implicit denial of IFP: When a court never explicitly rules on IFP but takes action (like dismissing the case) that makes clear it is not allowing the case to proceed without fees. Such an implicit denial is treated as a denial for appeal purposes.
• Interlocutory appeal: An appeal taken before the case is finally resolved in the trial court. Nebraska law allows an interlocutory appeal from the denial of IFP status.
• Plain error: An obvious error apparent from the record that, if uncorrected, would harm the integrity or fairness of the judicial process. Appellate courts may correct plain error even if the party did not specifically assign it.
• Subject matter jurisdiction vs. appellate jurisdiction: The district court’s power to hear an APA case depends on statutory prerequisites (filing and service). Separately, the Supreme Court’s power to review an IFP denial arises from a different statute that authorizes interlocutory review and allows jurisdiction to vest without fee payment.
• APA petition timeliness and service: To obtain judicial review of an agency decision under § 84-917, a petition must be timely filed and service of summons must occur within 30 days. Both are mandatory to invoke district court jurisdiction. The “service of the final decision by the agency” question (what event starts the clock) was not resolved in this case.

Practice Notes

• Order of operations matters: For indigent filers, courts must decide IFP first. Only then can filing be completed, summons issued, and the agency record prepared. Skipping or deferring IFP disrupts the statutory scheme and risks reversible error.
• Written findings are not optional when denying IFP as frivolous/malicious: § 25-2301.02 requires a written statement of reasons, findings, and conclusions. Failure to provide one can be fatal, particularly where the record suggests the legal position is at least debatable.
• Clerks should decline to file without fee or order: The opinion reiterates that clerks have “no authority to extend credit” and a duty to collect fees in advance. If an IFP application is pending, hold the filing until the court authorizes proceeding IFP.

Conclusion

Jackson v. Rodriguez sets a clear procedural rule: Nebraska trial courts must address IFP applications at the outset using the three pathways in § 25-2301.02—grant, object and hold a hearing on ability to pay, or deny as frivolous/malicious with written reasons. Dismissing a case without ruling on IFP is an implicit denial that is immediately appealable. The Supreme Court’s application of plain error underscores that courts cannot bypass the IFP framework, especially where the underlying timeliness rationale is unsound. On remand, the district court is directed to grant IFP and proceed with APA review as the statutes contemplate.

The decision materially strengthens access to judicial review for indigent litigants, clarifies the duties of clerks and trial courts, and reaffirms the statutory mechanisms by which Nebraska’s courts ensure that meritorious claims are not blocked at the courthouse door by procedural missteps. While the Court left unresolved the precise triggering event for “service of the final decision by the agency” under the APA in prison-discipline cases, it supplied essential guidance on the proper sequencing and standards for IFP determinations—guidance that will shape trial court practice across Nebraska.