Akins v. Albers et al

Filing 10

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)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMAR AKINS,
Plaintiff,
v.
BARB ALBERS, LYNN QUIZNER,
ROD CONFER, and NEBRASKA
EQUAL EMPLOYEERENT
OPPORTUNITY COMMISSION,
Defendants.

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4:14CV3235

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Samar Akins’s (“Plaintiff”) Notice
of Appeal (Filing No. 8). The notice 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.
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. 7) dated April 15, 2015—is clearly not appealable. The
court determined Plaintiff’s factually unsupported and conclusory allegations set forth
in his Complaint were insufficient to state a claim for relief. The court ordered
Plaintiff 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).
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.
DATED this 29th day of April, 2015.
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.

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