Webb v. State of Nebraska et al

Filing 101

MEMORANDUM AND ORDER that Plaintiff may not proceed on appeal in forma pauperis regarding Interlocutory Appeal 99 .Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(ADB).

4:21-cv-03031-RGK-PRSE Doc # 101 Filed: 05/09/22 Page 1 of 3 - Page ID # 493

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
YOHAN WEBB,
Plaintiff,

4:21CV3031

vs.
MATTHEW FRANKEN, (Investigator,
LPD); LINCOLN JOURNAL STAR
NEWSPAPER,
Owner
&
Editor
Unknown by Name;
10/11 NEWS
(KOLN/KGIN), MELISSA C. RIPLEY,
#1331,
LPD
Officer;
BRETT
WHEELER, Lancaster County Jail
Correctional Officer; KAI AKESON,
Lancaster County Jail Correctional
Officer; SCOTT LENGEL, Lancaster
County Jail Correctional Officer;
WESTON VOCK, Lancaster County Jail
Correctional Officer; BEN MURPHY,
Lancaster County Jail Correctional
Officer; CARLY LOBEDA, Lancaster
County Jail Correctional Officer; JON
OTT, Lancaster County Jail Correctional
Officer; MATTHEW DAAKE, Lancaster
County Jail Correctional Officer;
BRADLEY
JOHNSON,
Lancaster
County Jail Correctional Officer;
JOSEPH ANDERSON, Lancaster County
Jail Correctional Officer; RICK GRAY,
Lancaster County Jail Correctional
Officer;
STEPHEN
JOHNSON,
Lancaster County Jail Correctional
Officer; ADAM BASSINGER, Lancaster
County Jail Correctional Officer;
ANDREW HOLSING, Lancaster County
Jail Correctional Officer; JESSICA
HOUSEMAN, Lancaster County Jail

MEMORANDUM AND ORDER

4:21-cv-03031-RGK-PRSE Doc # 101 Filed: 05/09/22 Page 2 of 3 - Page ID # 494

Correctional
Officer;
MCCOY,
Lancaster
Correctional Officer;
DONNELLY, Lancaster
Correctional Officer;

COURTNEY
County
Jail
and JARED
County Jail

Defendants.
This matter is before the court on Plaintiff’s Notice of Appeal (filing 99) and
a memorandum from the Clerk of the Court requesting a ruling as to Plaintiff’s
authorization to proceed in forma pauperis on appeal (filing 100). For the reasons
set forth below, 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 when none of the legal points are arguable on their
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
(filing 93) granting Defendant Ripley’s Motion for Extension of Time to Answer
dated April 27, 2022—is clearly not appealable. The order does not qualify as a
“final decision[]” capable of appeal under 28 U.S.C. § 1291. In addition, the order
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4:21-cv-03031-RGK-PRSE Doc # 101 Filed: 05/09/22 Page 3 of 3 - Page ID # 495

does not fall within the narrow class of appealable interlocutory orders under §
1292(a).
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 Plaintiff may not proceed on appeal in
forma pauperis.
Dated this 9th day of May, 2022.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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