Leon v. State of Nebraska et al

Filing 37

MEMORANDUM AND ORDER- The Notice of Appeal was not timely filed. Petitioner will not be allowed to proceed in forma pauperis on appeal. 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 Lyle E. Strom. (Copy mailed to pro se party and USCA as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IRA R. LEON,

)
)
Petitioner,
)
)
v.
)
)
STATE OF NEBRASKA, and SCOTT )
FRAKES, Director of the
)
Nebraska Department of
)
Corrections,
)
)
Respondents.
)
______________________________)

8:14CV16

MEMORANDUM AND ORDER

This matter is before the Court on petitioner’s Notice
of Appeal (Filing No. 34), which was filed 45 days after the
Court entered judgment 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.
both “mandatory and jurisdictional.”

This requirement is

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 July 6, 2015.
on August 20, 2015.

Petitioner filed his Notice of Appeal

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 petitioner did not file a

timely notice of appeal.
IT IS ORDERED that the Notice of Appeal was not timely
filed.

Petitioner will not be allowed to proceed in forma

pauperis on appeal.

The clerk of the court is directed to send a

copy of this order to the Eighth Circuit Court of Appeals.
DATED this 7th day of October, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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