Securities and Exchange Commission v Behrens, et al

Filing 384

MEMORANDUM AND ORDER regarding Notice of Appeal filing 380 . The defendant is not entitled to proceed in forma pauperis on appeal. 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 Judge John M. Gerrard. (Copy mailed to pro se party; sent electronically to the Court of Appeals)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SECURITIES AND EXCHANGE
COMMISSION,
8:08-CV-13
Plaintiff,
vs.

MEMORANDUM AND ORDER

BRYAN S. BEHRENS, et al.,
Defendants.
This matter is before the Court on a notice of appeal (filing 380) filed by
pro se defendant Bryan S. Behrens. The notice of appeal was not accompanied
by the appellate filing fee. Filing 381. Furthermore, the Court finds, pursuant
to 28 U.S.C. § 1915(a)(3), that the defendant 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). But § 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 indigent
appellant should be allowed to proceed in forma pauperis unless the issues
raised are so frivolous that the appeal would be dismissed in the case of a
non-indigent litigant. Coppedge, 369 U.S. at 447; Ellis, 356 U.S. at 675.
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 the defendant is attempting to appeal in this
case, the Court's Memorandum and Order of November 19, 2013 (filing 374)
is clearly not appealable. That order denied a motion (filing 373) that was
purportedly brought under Fed. R. Civ. P. 60(b)(4) to collaterally attack the
defendant's criminal conviction in a separate proceeding. For the reasons

explained in the Court's previous memorandum and order (filing 374), the
defendant cannot use Rule 60(b) to attack his criminal conviction. And more
to the point, there is no "final judgment, order, or proceeding" in this civil
case that is subject to relief under to Rule 60(b), and the Court cannot
entertain a Rule 60(b) motion filed before the entry of a final judgment.
Hawks v. J.P. Morgan Chase Bank, 591 F.3d 1043, 1051 n.5 (8th Cir. 2010);
Sanders v. Clemco Indus., 862 F.2d 161, 168 n.12 (8th Cir. 1988). Therefore,
the Court's order of November 19 cannot be a ruling on a Rule 60(b) motion
for purposes of establishing appellate jurisdiction. See St. Mary's Health
Center v. Bowen, 821 F.2d 493, 498-99 (8th Cir. 1987).
In short, the Court's order of November 19, 2013, is not appealable.1
See id. Because the defendant is attempting to appeal a clearly nonappealable order, the appeal is frivolous and not taken in good faith. See
Cohen, 333 F.2d at 978-79.
IT IS ORDERED:
1.

The defendant is not entitled to proceed in forma pauperis
on appeal.

2.

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 19th day of December, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

The Court notes, for the benefit of the other parties to this case, that the defendant's
notice of appeal from a non-appealable order does not divest the Court of jurisdiction to
proceed in the meantime. See United States v. Grabinski, 674 F.2d 677, 679 (8th Cir. 1982).
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