Brooks v. Lincoln Police Department et al

Filing 13

MEMORANDUM AND ORDER that Plaintiff's Notice of Appeal is deemed timely filed. Plaintiff's Motion for Leave to Appeal in forma pauperis 9 is granted. The Clerk of the court is directed to forward a copy of this Memorandum and Order to the Eighth Circuit Court of Appeals. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed) (JSF)

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

)
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Plaintiff,
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v.
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LINCOLN POLICE DEPARTMENT, )
OFFICER SCHMIDT, #1610, In their )
individual capacities, OFFICER
)
HITE, #1643, In their individual
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capacities, and OFFICER
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PICKERING, #1425, In their
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individual capacities,
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Defendants.
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4:11CV3114

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal (filing no. 8) and
Motion for Leave to Appeal In Forma Pauperis (filing no. 9). The court dismissed
Plaintiff’s claims in this matter on September 29, 2011. (Filing Nos. 6 and 7.) On
October 31, 2011, Plaintiff filed his Notice of Appeal. (Filing No. 8.) Therefore, 32
days elapsed between the court’s Judgment and the filing of Plaintiff’s Notice of
Appeal.
Federal Rule of Appellate Procedure 4 (“Rule 4”) governs the time in which a
notice of appeal must be filed. As set forth in Rule 4, a notice of appeal “must be filed
with the district clerk within 30 days after the judgment or order appealed from is
entered.” Fed. R. App. P. 4(a)(1)(A). This time limit is mandatory and jurisdictional,
and failure to file a timely notice of appeal deprives an appellate court of jurisdiction.
See, e.g., Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 462-64 (8th Cir. 2000)
(citations omitted). However, Rule 4 permits an extension of time in which to file an
appeal if (1) such extension is requested within the “extension period,” i.e., within 30
days after expiration of the appeal deadline; and (2) regardless of the “extension
period,” the appellant shows excusable neglect or good cause for the delayed filing of

the appeal. Fed. R. App. P. 4(a)(5)(A).
In this matter, Plaintiff did not seek an extension of the time in which to file a
notice of appeal. Regardless, an extension under Rule 4 would still be appropriate,
provided that the requisite showing of excusable neglect or good cause has been made.
The Eighth Circuit has clarified “excusable neglect” as follows:
[T]he determination ... is at bottom an equitable one, taking account of
all relevant circumstances surrounding the party’s omission. ... [T]hose
circumstances ... include the danger of prejudice to the [non-moving
party], the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good
faith.
Lowry, 211 F.3d at 462 (citation and quotation omitted).
Here, the reasons set forth by Plaintiff for his failure to timely file are his
extensive health problems. (Filing No. 12.) The court finds that Plaintiff has shown
good cause for his failure to timely file his Notice of Appeal and his appeal is deemed
timely filed.
Also pending is Plaintiff’s Motion for Leave to Appeal In Forma Pauperis.
(Filing No. 9.) Plaintiff is not a prisoner and has previously been granted leave to
proceed IFP in this matter. (Filing No. 5.)
As set forth in Federal Rule of Appellate Procedure 24(a)(3):
(a) Leave to Proceed in Forma Pauperis ....
(3) Prior Approval. A party who was permitted to proceed
in forma pauperis in the district-court action, or who was determined to
be financially unable to obtain an adequate defense in a criminal case,
may proceed on appeal in forma pauperis without further authorization,
unless the district court – before or after the notice of appeal is filed–
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certifies that the appeal is not taken in good faith or finds that the party
is not otherwise entitled to proceed in forma pauperis. In that event, the
district court must state in writing its reasons for the certification or
finding.
The court finds that because Plaintiff proceeded IFP in the district court, he may
now “proceed on appeal in forma pauperis without further authorization.”
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Notice of Appeal is deemed timely filed.

2.

Plaintiff’s Motion for Leave to Appeal In Forma Pauperis (filing no. 9)

is granted.
3.

The Clerk of the court is directed to forward a copy of this Memorandum

and Order to the Eighth Circuit Court of Appeals.
DATED this 9th day of January, 2012.
BY THE COURT:
Richard G. Kopf
United States District Judge

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