Clark v. State of Nebraska et al

Filing 16

MEMORANDUM AND ORDER - IT IS ORDERED that: Plaintiff's Notice of Appeal (Filing No. 12 ) was not timely filed. Plaintiff's Motion for Leave to Appeal in Forma Pauperis (Filing No. 13 ) is denied. Plaintiff's Motion (Filing No. 15 ) is denied. The clerk of the court is directed to send a copy of this order to the Eighth Circuit Court of Appeals. Ordered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH W. CLARK,
Plaintiff,
v.
STATE OF NEBRASKA, et al.,
Defendants.

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4:14CV3192

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal (Filing No. 12) and
Motion for Leave to Proceed in Forma Pauperis on Appeal (Filing No. 13). The Notice
of Appeal was filed 33 days after the court entered its judgment in this case. Also
pending is Plaintiff’s Motion (Filing No. 15) seeking reconsideration of the judgment
entered in this case.
Federal Rule of Appellate Procedure 4(a)(1)(A) sets forth that a notice of appeal
in a civil case must be filed within 30 days of the entry of judgment. This requirement
is both “mandatory and jurisdictional.” Burgs v. Johnson Cnty., Iowa, 79 F.3d 701, 702
(8th Cir. 1996). A district court may extend the time to file a notice of appeal if a party
moves for an extension of time and shows excusable neglect or good cause, provided that
the party moves for the extension of time within 30 days of the expiration of the 30-day
period set out in Rule 4(a)(1)(A). Fed. R. App. P. 4(a)(5)(A)(ii). In addition, if a party
files one of the post-judgment motions listed in Rule (a)(4)(A), the time to file the appeal
runs from the entry of the order disposing of the motion. Fed. R. App. P. 4(a)(4)(A). An
untimely notice of appeal cannot serve as a motion for extension of time to file an appeal.
Burgs, 79 F.3d at 702.
Here, the court entered a final judgment dismissing this case on May 7, 2015.
Plaintiff filed his Notice of Appeal 33 days later. He did not file any post-judgment
motions that would extend the time to file a notice of appeal. In addition, he did not
move to extend the time to file a notice of appeal. Accordingly, the court finds Plaintiff
did not file a timely notice of appeal. For this reason, the court certifies Plaintiff’s appeal

is not taken in good faith and he is not entitled to proceed in forma pauperis on appeal.
See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial
court certifies in writing that it is not taken in good faith.”).
With respect to Plaintiff’s Motion (Filing No. 15) seeking reconsideration of the
judgment entered in this case, the court will deny the motion. The court dismissed this
case because Plaintiff failed to prosecute it diligently and failed to comply with this
court’s orders. Plaintiff offered no reason for why the court should reconsider its order
of dismissal.
IT IS ORDERED that:
1.
2.
is denied.
3.

Plaintiff’s Notice of Appeal (Filing No. 12) was not timely filed.
Plaintiff’s Motion for Leave to Appeal in Forma Pauperis (Filing No. 13)

Plaintiff’s Motion (Filing No. 15) is denied.

4.
The clerk of the court is directed to send a copy of this order to the Eighth
Circuit Court of Appeals.
DATED this 3rd day of August, 2015.
BY THE COURT:

s/ Joseph F. Bataillon
Senior 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.

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