Otis v. Berge et al

Filing 77

ORDER : IT IS ORDERED THAT:1.The Court certifies that Otiss appeal is not taken in good faith.2.Otiss motion for in forma pauperis status on appeal [Docket No. 76] is DENIED.(Written Opinion) Signed by Judge Joan N. Ericksen on July 18, 2011. (slf)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
William H. Otis,
Plaintiff,
v.

Civil No. 10-2155 (JNE/JJK)
ORDER

Harold A. Berge, Rose M. Berge, Cindy
Lou Berge, Philip R. Burkholder, Steven
Corson d/b/a Corson Law Office, and
Others,
Defendants.
Adopting a Report and Recommendation, the Court granted the motions to dismiss of
Harold A. Berge, Rose M. Berge, Cindy Lou Berge, and Steven Corson on December 23, 2010.
At that time, the Berges’ crossclaim and William Otis’s claims against Philip R. Burkholder were
still pending. On January 18, 2011, Otis filed a notice of appeal that was mistakenly filed with
the United States Court of Appeals for the Federal Circuit. The Federal Circuit returned the
notice of appeal to the Clerk of Court. On March 9, 2011, the Clerk of Court sent the appeal to
the United States Court of Appeals for the Eighth Circuit. In a Report and Recommendation
issued approximately one month later, the magistrate judge recommended that Burkholder’s
motion for summary judgment be granted. The Court adopted that Report and Recommendation
on May 23, 2011. Eight days later, the Court entered judgment dismissing this action with
prejudice and dismissing the Berges’ crossclaim as moot. On June 14, 2011, the Eighth Circuit
ordered Otis to show cause why his appeal should not be dismissed for failure to prosecute. One
month later, Otis moved for in forma pauperis status on appeal, and the Eighth Circuit forwarded
the motion to this Court for a ruling. For the reasons set forth below, the Court denies Otis’s
motion for in forma pauperis status on appeal.

1

To qualify for in forma pauperis status on appeal, a litigant who appeals from a judgment
in a civil action must submit information that demonstrates the litigant’s inability to pay, or give
security for, the appellate filing fees. 28 U.S.C. § 1915(a)(1) (2006). Even if the litigant is
financially eligible to proceed in forma pauperis on appeal, the litigant may not appeal in forma
pauperis if the district court “certifies in writing that [the appeal] is not taken in good faith.” Id.
§ 1915(a)(3). Good faith in this context is judged by an objective standard rather than the
subjective beliefs of the appellant. Coppedge v. United States, 369 U.S. 438, 445 (1962). To
determine whether an appeal is taken in good faith, a court must decide whether the claims to be
decided on appeal are factually or legally frivolous. Id. An appeal is frivolous, and therefore
cannot be taken in good faith, “where it lacks an arguable basis either in law or in fact.” Neitzke
v. Williams, 490 U.S. 319, 325 (1989).
Here, Otis’s notice of appeal was premature, and it is not effective from the subsequently
entered judgment. See Dieser v. Cont’l Cas. Co., 440 F.3d 920, 923-26 & n.4 (8th Cir. 2006).
Otis’s appeal is frivolous. The Court denies his motion for in forma pauperis status on appeal.
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

The Court certifies that Otis’s appeal is not taken in good faith.

2.

Otis’s motion for in forma pauperis status on appeal [Docket No. 76] is
DENIED.

Dated: July 18, 2011
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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