Swift v. Larmie et al

Filing 12

MEMORANDUM AND ORDER- Plaintiff may not proceed on appeal in forma pauperis. The clerk's office is directed to provide a copy of this Memorandum and Order to the Eighth Circuit Court of Appeals. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party and as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT,
Plaintiff,
v.
MEGAN LARMIE, and PAULETTE
MERRELL,
Defendants.

)
)
)
)
)
)
)
)
)
)

4:14CV3185

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Charles Swift’s (“Plaintiff”) notice
of appeal (Filing No. 10). The notice of appeal was not accompanied by the appellate
filing fee. The court finds that pursuant to 28 U.S.C. § 1915(a)(3), Plaintiff may not
take this appeal in forma pauperis. See Henderson v. Norris, 129 F.3d 481, 485 (8th
Cir. 1997).
A litigant seeking to appeal a judgment must either pay the required filing fees,
see Fed. R. App. P. 3(e), or proceed in forma pauperis pursuant to § 1915(a). Section
1915(a)(3) provides that “[a]n appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.” An appellant demonstrates
good faith by seeking appellate review of any issue that is not frivolous. Coppedge v.
United States, 369 U.S. 438, 445 (1962); Ellis v. United States, 356 U.S. 674, 674
(1958).
An appeal is frivolous where none of the legal points are arguable on their
merits—when the result is obvious or the appellant’s argument is wholly without merit.
See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Misischia v. St. John’s Mercy
Health Sys., 457 F.3d 800, 806 (8th Cir. 2006). And while such a finding should be
made only in extreme cases, it is proper when a party attempts to appeal from an order
that is clearly not appealable. See Cohen v. Curtis Publ’g Co., 333 F.2d 974, 978-79
(8th Cir. 1964).

The order from which Plaintiff is attempting to appeal—the court’s order on
initial review (Filing No. 9) dated December 12, 2014—is clearly not appealable. The
undersigned judge determined in that order that Plaintiff’s Complaint, in which he
sought only monetary relief, failed to state a claim upon which relief can be granted.
The court allowed Plaintiff 30 days in which to file an amended complaint. The order
is not appealable because it neither qualifies as a “final decision[]” capable of appeal
under 28 U.S.C. § 1291 nor comes within the narrow class of appealable interlocutory
orders under § 1292(a)(1).
Plaintiff was permitted to proceed in forma pauperis in this matter. Therefore,
he could proceed on appeal in forma pauperis without further authorization, unless the
court certifies that the appeal is not taken in good faith or finds that he is not otherwise
entitled to proceed in forma pauperis. Fed. R. App. 24(a)(3). Because Plaintiff is
attempting to appeal from an order that is not appealable, the court certifies that the
appeal is not taken in good faith.
IT IS THEREFORE ORDERED that:
1.

Plaintiff may not proceed on appeal in forma pauperis.

2.
The clerk’s office is directed to provide a copy of this Memorandum and
Order to the Eighth Circuit Court of Appeals.

2

DATED this 29th day of December, 2014.
BY THE COURT:
s/ John M. Gerrard
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.

3