Germalic v. Gage

Filing 20

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Appeal in forma pauperis (filing no. 17 ) is granted. The Clerk of the court shall provide the Court of Appeals with a copy of this Memorandum and Order. Plaintiff's Motion for an Ext ension of Time to file a motion for reconsideration (filing no. 13 ) and a Motion to Continue for the Purpose of Appeal (filing no. 15 ) are denied as moot. Ordered by Judge Richard G. Kopf. (Copy mailed to pro se party and sent electronically to the Circuit)(GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA JAMES GERMALIC, Plaintiff, v. JOHN GALE, Defendant. ) ) ) ) ) ) ) ) ) 4:08CV3223

MEMORANDUM AND ORDER

This matter is before the court on Plaintiff's Motion for Leave to Appeal in forma pauperis. (Filing No. 17.) Also pending is Plaintiff's Motion for an Extension of Time to file a motion for reconsideration (filing no. 13), and Motion to Continue for the Purpose of Appeal (filing no. 15). I. LEAVE TO APPEAL IN FORMA PAUPERIS On September 2, 2009, the court dismissed Plaintiff's claims without prejudice and entered judgment against Plaintiff. (Filing Nos. 11 and 12.) Plaintiff filed a timely Notice of Appeal of the court's Judgment. (Filing No. 16.) Plaintiff is a nonprisoner and has not previously been granted leave to proceed in forma pauperis ("IFP") in this matter. As set forth in Federal Rule of Appellate Procedure 24(a)(1): Except as stated in Rule 24(a)(3), a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that: (A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for

fees and costs; (B) (C) claims an entitlement to redress; and states the issues that the party intends to present on appeal.

Fed. R. App. P. 24(a)(1). The court has carefully reviewed the record. Plaintiff has filed an Affidavit to proceed without payment of fees that declares he is entitled to the relief sought in his Complaint. (Filing No. 17 at CM/ECF pp. 1-2.) Therefore, Plaintiff's Motion for Leave to Appeal IFP is granted. II. REMAINING MOTIONS Plaintiff also filed a Motion for an Extension of Time to file a motion for reconsideration (filing no. 13), and a Motion to Continue for the Purpose of Appeal (filing no. 15). However, Plaintiff's October 2, 2009 Notice of Appeal renders these Motions moot. IT IS THEREFORE ORDERED that: 1. is granted Plaintiff's Motion for Leave to Appeal in forma pauperis (filing no. 17)

2. The Clerk of the court shall provide the Court of Appeals with a copy of this Memorandum and Order. 3. Plaintiff's Motion for an Extension of Time to file a motion for reconsideration (filing no. 13) and a Motion to Continue for the Purpose of Appeal (filing no. 15) are denied as moot.

November 25, 2009.

BY THE COURT: Richard G. Kopf United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.