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Compliance with Court Order Cannot Support Dismissal of Lack of Prosecution

Compliance with Court Order Cannot Support Dismissal of Lack of Prosecution


The Nebraska Supreme Court has reversed the dismissal of a prisoner’s civil action for lack of prosecution. In doing so, the court held the district court abused its discretion by dismissing the action without explanation although the prisoner had done what the court instructed. It also held the Appellate court erred by basing its affirmation on predictions of future events.


Nebraska prisoner Javis A. Jones filed a petition to dissolve his marriage. As the Court of Appeals noted, Jones was “active” in the case. In response to the District Court’s notice of intent to dismiss unless he either submit a proposed scheduling order or requested a scheduling conference, Jones timely filed a motion for pretrial scheduling conference.


Despite complying with one of the two options given him, the District Court dismissed the action without explanation. The Supreme Court explained that judicial abuse of discretion exist 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. Here, the court’s action was untenable because its action directly contradicted its own notice and was done without any attempt to explain the contradiction.


On appeal, the Appellate Court affirmed based upon its prediction that Jones would be unable to appear or participate in any hearing. That was error, and the court should have focused on the District Court’s actions in the record rather than predicting future events. Jones pointed out that the District Court failed to rule upon his motion for a teleconference hearing, and the record does not demonstrate prison officials would deny him such participation. “After all, prison officials must ensure that inmate have ‘adequate, effective, and meaningful’ access to the courts,” wrote the Supreme court. The court emphasized prisoners do not have a constitutional right to be physically present at a civil trial.


The Appellate court’s affirmance and the district court’s dismissal were reversed. See: Jones v. Jones, 821 N.W.2d 211 (Neb. 2012).

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Related legal case

Jones v. Jones