Castonguay v. Retelsdorf

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291 Nebraska reports
CASTONGUAY v. RETELSDORF
Cite as 291 Neb. 220
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
paul CastoNguay, appellaNt, v. leigh aNN
retelsdorf et al ., appellees .
865 N.W.2d 91
Filed June 26, 2015. 	No. S-14-292.
1. Actions: Records: Appeal and Error. 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 the written statement of the court.
2. Statutes. When a statute specifically provides for exceptions, items not
excluded are covered by the statute.
3. Courts. The courts are not at liberty to engraft on Neb. Rev. Stat.
§ 25-2301.02 (Reissue 2008) any additional requirements for proceeding
in forma pauperis.
4. Venue. Filing in the improper venue does not make the legal position
asserted by the plaintiff frivolous or malicious for purposes of the in
forma pauperis statute, Neb. Rev. Stat. § 25-2301.02 (Reissue 2008).
5. Actions: Words and Phrases. A frivolous legal position pursuant
to Neb. Rev. Stat. § 25-2301.02 (Reissue 2008) is one wholly with-
out merit, that is, without rational argument based on the law or on
the evidence.
6. Venue. Venue is not jurisdictional and is not grounds for dismissal of
the suit.
7. Venue: Waiver. The right of a defendant to be sued in a particular
county or district is a mere personal privilege which the defendant
may waive.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
stephaNie 	f. 	staCy, 	Judge. 	Reversed 	and 	remanded 	with
directions.
Paul Castonguay, pro se.
Douglas J. Peterson, Attorney General, and Blake E. Johnson
for appellees.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:30 AM CST

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CASTONGUAY v. RETELSDORF
Cite as 291 Neb. 220
heaviCaN, C.J., Wright, C oNNolly, stephaN, MCC orMaCk ,
and M iller-lerMaN, JJ.
MCC orMaCk , J.
NATURE OF CASE
The issue presented is whether a trial court’s sua sponte
objection to venue is a proper basis under Neb. Rev. Stat.
§ 	25-2301.02 	(Reissue 	2008) 	for 	denying 	in 	forma 	pau-
peris status.
BACKGROUND
Paul 	Castonguay 	was 	convicted 	in 	Douglas 	County,
Nebraska, pursuant to a plea, of first degree sexual assault.
He subsequently filed a pro se complaint in Lancaster County,
Nebraska, alleging an action under 42 U.S.C. § 1983 (2012).
The complaint was brought against prosecutors, public defend-
ers, and two attorneys whose capacity in the underlying crimi-
nal action is unclear from the complaint. Castonguay alleged
that the defendants withheld exculpatory DNA evidence, and
that the assistant attorney general lied about the existence of
the DNA evidence in response to a request for discovery filed
by Castonguay. Castonguay sought money damages. The com-
plaint does not make clear whether the defendants are being
sued in their official or individual capacities. The DNA report
attached to the complaint indicates no male DNA was found
on the victim.
Castonguay moved for leave to proceed in forma pauperis.
He attached to his motion an affidavit of poverty and a certi-
fication of the Nebraska Department of Correctional Services
concerning his institutional account transactions. The district
court, acting sua sponte, objected that venue was not proper
in Lancaster County. On that basis, the court also objected sua
sponte to the motion to proceed in forma pauperis. The court
made “no comments on the merits of the lawsuit.” After a hear-
ing, the court denied Castonguay’s motion to proceed in forma
pauperis. The court reasoned that the complaint contained no
allegations suggesting venue was proper in Lancaster County.
The court opined that if Castonguay wished to proceed with

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CASTONGUAY v. RETELSDORF
Cite as 291 Neb. 220
the action in forma pauperis, he should make such a request in
Douglas County. Castonguay appeals.
ASSIGNMENTS OF ERROR
Castonguay asserts, consolidated and restated, that the dis-
trict court erred in denying him in forma pauperis status.
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 the written statement of the court.1
ANALYSIS
There was no objection that Castonguay had sufficient funds
to pay the costs of his action. There was no objection that the
legal position taken in the action was frivolous or malicious.
Rather, the district court denied Castonguay’s motion to pro-
ceed in forma pauperis on its sua sponte objection that the
complaint alleged no facts indicating that Lancaster County
was the proper venue for Castonguay’s action. We agree with
Castonguay that the court erred in denying in forma pauperis
status on that basis.
[2,3] Section 25-2301.02(1) states that an application to
proceed in forma pauperis “shall be granted unless there is an
objection that the party filing the application (a) has sufficient
funds . . . or (b) is asserting legal positions which are frivo-
lous or malicious.” When a statute specifically provides for
exceptions, items not excluded are covered by the statute.2 The
courts are not at liberty to engraft on § 25-2301.02 any addi-
tional requirements for proceeding in forma pauperis.3
1 § 25-2301.02(2); Tyler v. Nebraska Dept. of Corr. Servs., 13 Neb. App.
795, 701 N.W.2d 847 (2005).
2 Conroy v. Keith Cty. Bd. of Equal., 288 Neb. 196, 846 N.W.2d 634 (2014);
Chapin v. Neuhoff Broad.-Grand Island, Inc., 268 Neb. 520, 684 N.W.2d
588 (2004).
3 See, e.g., Estate of McElwee v. Omaha Transit Auth., 266 Neb. 317, 664
N.W.2d 461 (2003). See, also, Tyler v. City of Milwaukee, 740 F.2d 580
(7th Cir. 1984).

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CASTONGUAY v. RETELSDORF
Cite as 291 Neb. 220
In Tyler v. Natvig,4 the Nebraska Court of Appeals accord-
ingly held that illegibility was not a proper basis for denying
the plaintiff in forma pauperis status. The court explained
that being prevented by illegibility from determining whether
the complaint was frivolous or malicious “does not fulfill the
requirement of § 25-2301.02 that the court find that the com-
plaint was actually frivolous or malicious as a prerequisite to
denying the application.”5 The district court was free to pursue
other avenues to address the illegibility of the complaint, such
as striking the complaint pursuant to Neb. Ct. R. § 6-1503
and holding the application to proceed in forma pauperis in
abeyance until the applicant provided a legible complaint. But
the court could not address this issue via a denial of in forma
pauperis status.
[4] Although 	the 	district 	court 	never 	expressly 	found
Castonguay was asserting a frivolous or malicious legal posi-
tion, the State asserts that the complaint’s failure to allege
facts supporting Lancaster County as the proper venue is
equivalent to asserting a frivolous or malicious legal position.
We disagree. Just as illegibility does not make the alleged
legal position “frivolous” or “malicious” for purposes of
§ 25-2301.02, we hold that filing in the improper venue does
not make the legal position asserted by the plaintiff frivolous
or malicious.
[5-7] “A frivolous legal position pursuant to § 25-2301.02
is one wholly without merit, that is, without rational argument
based on the law or on the evidence.”6 Venue, as expressly
stated by the venue statute7 and emphasized by our case law,
is not jurisdictional and is not grounds for dismissal of the
suit.8 “‘[T]he right of a defendant to be sued in a particular
4 Tyler v. Natvig, 17 Neb. App. 358, 762 N.W.2d 621 (2009).
5 Id. at 360, 762 N.W.2d at 623.
6 Id. See, also, Cole v. Blum, 262 Neb. 1058, 637 N.W.2d 606 (2002).
7 Neb. Rev. Stat. § 25-403.01 (Reissue 2008).
8 See Blitzkie v. State, 228 Neb. 409, 422 N.W.2d 773 (1988).

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CASTONGUAY v. RETELSDORF
Cite as 291 Neb. 220
county or district is a mere personal privilege which [the
defendant] may waive.’”9 Indeed, because venue is a waivable
personal privilege, it is not clear that it is a matter that can be
objected to by a court sua sponte.10
The legal position alleged in a complaint is not “wholly
without merit” simply because the alleged facts indicate that
the defendant may—but may not—ask for a change of venue.
This is especially true because, even if the defendant asks for
a change of venue, the lawsuit will continue on the merits. The
underlying merits of the legal position taken in the complaint
will not be affected by the objection to venue; they will sim-
ply be decided by a different court. Improper venue is thus
in contrast to cases wherein an affirmative defense apparent
from the complaint constitutes an absolute jurisdictional bar
or otherwise wholly disposes of the merits of the suit in the
defendant’s favor.11
We observe that the Third Circuit has specifically rejected
the notion that venue can be grounds for denying in forma
pauperis status under similar statutory language.12 The courts
of the Third Circuit have stated that in the absence of any
statutory authority to deny in forma pauperis status for lack
of venue, it is inappropriate for the trial court to dispose of
the case sua sponte on an objection to the complaint that
would be waived if not raised by the defendant in a timely
manner.13 Even if raised, these courts note, there would be a
possibility of transferring the case to a district where venue
9 Id. at 421, 422 N.W.2d at 780.
10 See, e.g., 14D Charles Alan Wright et al., Federal Practice and Procedure
§ 3826 (4th ed. 2013).
11 See, Trujillo v. Williams, 465 F.3d 1210 (10th Cir. 2006); Yellen v. Cooper,
828 F.2d 1471 (10th Cir. 1987); Sanders v. United States, 760 F.2d 869
(8th Cir. 1985).
12 Sinwell v. Shapp, 536 F.2d 15 (3d Cir. 1976); Fiorani v. Chrysler Group,
510 Fed. Appx. 109 (3d Cir. 2013); Crawford v. Frimel, 197 Fed. Appx.
144 (3d Cir. 2006).
13 See id.

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would be proper, rather than dismissing the complaint with-
out prejudice. And “[t]he denial of leave to proceed in forma
pauperis would hardly seem to be a suitable vehicle for such
a determination.”14 The State points to no case law hold-
ing differently.
The district court for Lancaster County, whether or not
the proper venue for Castonguay’s action, had subject matter
jurisdiction over the complaint.15 Unless and until the action
is transferred to another venue, the district court for Lancaster
County has the power and the duty to determine the merits of
any motions before it. This includes Castonguay’s motion to
proceed in forma pauperis.
The statute governing in forma pauperis status does not
allow the court to deny the plaintiff’s application on the
grounds of improper venue. Rather, the exceptions to granting
in forma pauperis status are limited to objections based on (1)
sufficient funds or (2) the plaintiff’s asserting legal positions
which are frivolous or malicious. There is no allegation here
that Castonguay had sufficient funds. The court did not deter-
mine that the complaint was frivolous or malicious, and we
reject the State’s argument that improper venue is tantamount
to asserting a frivolous or malicious legal position.
CONCLUSION
Because § 25-2301.02 does not permit denial of in forma
pauperis status based on a sua sponte objection to venue, the
district court erred in denying Castonguay in forma pauperis
status on that basis. We reverse the judgment and remand the
cause with directions to proceed in a manner consistent with
this opinion.
reversed aNd reMaNded With direCtioNs .
Cassel, J., not participating.
14 Sinwell v. Shapp, supra note 12, 536 F.2d at 19.
15 See, e.g., Blitzkie v. State, supra note 8.