Wilson et al v. Bruning et al

Filing 34

MEMORANDUM AND ORDER that the clerk's office shall not process Plaintiff Gracy Sedlak's appeal. Plaintiff Gracy Sedlak 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 Senior Judge Richard G. Kopf. (Copies mailed as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAROLD B. WILSON, and GRACY
S. SEDLAK,
Plaintiffs,
v.
FRANK HOPKINS,
Defendant.

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8:13CV130

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff Gracy Sedlak’s (“Plaintiff”) Notice
of Appeal, which includes a request to proceed in forma pauperis on appeal. (Filing
No. 32.)
On November 7, 2013, the court conducted an initial review of Plaintiffs’
Complaint. (Filing No. 20.) The court determined that Plaintiffs’ claim that Article I,
§ 29 of the Nebraska Constitution violates the Equal Protection Clause of the United
States Constitution was foreclosed by the Eighth Circuit Court of Appeals’ opinion in
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). Accordingly,
the court dismissed Plaintiffs’ claim that they are being “denied the right to marry the
person of [their] choosing” in violation of the Equal Protection Clause of the United
States Constitution. (Filing No. 20 at CM/ECF p. 7.) The court allowed Plaintiffs to
file an amended complaint on other claims. (Id.)
Approximately eight months later, on July 11, 2014, Plaintiff Gracy Sedlak filed
a notice of appeal. (Filing No. 32.) The notice of appeal is expressly taken from the
court’s order dismissing Plaintiffs’ claim that Article I, § 29 is unconstitutional. As set
forth in Rule 4, a notice of appeal “must be filed with the district clerk within 30 days
after the judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). This
time limit is mandatory and jurisdictional, and failure to file a timely notice of appeal
deprives an appellate court of jurisdiction. See, e.g., Lowry v. McDonnell Douglas
Corp., 211 F.3d 457, 462-64 (8th Cir. 2000) (citations omitted).

Plaintiff’s notice of appeal is obviously untimely. In addition, it is filed more
than 30 days after the 30-day appeal period expired, meaning that the court’s authority
under Fed. R. App. P. 4(a)(5) to extend the time to file a notice of appeal for “excusable
neglect or good cause” has also expired.
Plaintiff was permitted to proceed in forma pauperis in this matter. Therefore,
she 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 she is not otherwise
entitled to proceed in forma pauperis. Fed. R. App. 24(a)(3). Because Plaintiff’s notice
of appeal is untimely, the court certifies that the appeal is not taken in good faith and
denies her request to proceed in forma pauperis on appeal.
IT IS THEREFORE ORDERED that:
1.

The clerk’s office shall not process Plaintiff Gracy Sedlak’s appeal.

2.

Plaintiff Gracy Sedlak may not proceed on appeal in forma pauperis.

3.
The clerk’s office is directed to provide a copy of this Memorandum and
Order to the Eighth Circuit Court of Appeals.
DATED this 15th day of July, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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