Brooks v. Lincoln Police Department et al

Filing 11

MEMORANDUM AND ORDER regarding: Notice of Appeal to USCA 8 filed by Clinton Brooks, Jr. Plaintiff shall have until December 2, 2011, to submit an affidavit to show excusable neglect or good cause for failing to file a timely notice of appeal. If Pla intiff fails to submit such an affidavit by December 2, 2011, Plaintiff's appeal will not be processed. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for affidavit on December 2, 2011. Ordered by Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CLINTON BROOKS JR.,

)
)
Plaintiff,
)
)
v.
)
)
LINCOLN POLICE DEPARTMENT, )
OFFICER SCHMIDT, #1610, In their )
individual capacities, OFFICER
)
HITE, #1643, In their individual
)
capacities, and OFFICER
)
PICKERING, #1425, In their
)
individual capacities,
)
)
Defendants.
)

4:11CV3114

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion for Leave to Appeal In
Forma Pauperis (“IFP”). (Filing No. 9.) On September 29, 2011, the court dismissed
Plaintiff’s claims without prejudice and entered Judgment against him. (Filing Nos.
6 and 7.) On October 31, 2011, Plaintiff a Notice of Appeal (filing no. 8) and the
pending Motion for Leave to Appeal IFP (filing no. 9).
Federal Rule of Appellate Procedure 4(a)(1) requires that the notice of appeal
in a civil case be filed within thirty days after the judgment or order appealed from is
entered. “A timely notice of appeal is both mandatory and jurisdictional.” Burgs v.
Johnson County, Iowa, 79 F.3d 701, 702 (8th Cir 1996). Plaintiff did not file his
Notice of Appeal until October 31, 2011, 32 days after the entry of judgment against
him. (Filing No. 8.) Accordingly, Plaintiff’s Notice of Appeal is untimely. However,
on the court’s own motion, Plaintiff shall have until December 2, 2011, to file an
affidavit to show excusable neglect or good cause for failing to file a timely notice of
appeal. If Plaintiff fails to submit such an affidavit, Plaintiff’s appeal will not be
processed.

IT IS THEREFORE ORDERED that:
1.

Plaintiff shall have until December 2, 2011, to submit an affidavit to

show excusable neglect or good cause for failing to file a timely notice of appeal. If
Plaintiff fails to submit such an affidavit by December 2, 2011, Plaintiff’s appeal will
not be processed.
2.

The Clerk of the court is directed to set a pro se case management

deadline in this case using the following text: Check for affidavit on December 2,
2011.
DATED this 2nd day of November, 2011.
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.
2