Diamantopoulos v. Nebraska Govenor et al

Filing 17

MEMORANDUM AND ORDER- Plaintiff is not entitled to proceed IFP on appeal and the appeal is dismissed. The Clerk's office is directed to forward a copy of this Memorandum and Order to the parties and to the Eighth Circuit Court of Appeals. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GEORGIOS N.
DIAMANTOPOULOS,
Plaintiff,
v.
NEBRASKA GOVENOR,
NEBRASKA ATTORNEY
GENERAL, KATIE BENSON,
County Attorney, Douglas County
Deputy Attorney, and PORT OF
IMMIGRATION NEW YORK,
Defendants.

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8:14CV35

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Notice of Appeal, filed on April
28, 2014. (Filing No. 14.) Plaintiff did not submit a Motion for Leave to Proceed in
Forma Pauperis (“IFP”) on Appeal, and did not pay the $455.00 appellate filing fee.
(See Docket Sheet.) The court has carefully reviewed the record and finds that
Plaintiff may not proceed IFP on appeal.
Under the provisions of 28 U.S.C. § 1915(g), a prisoner may not proceed IFP
in a civil action, or appeal a judgment in a civil action, if the prisoner has, on three or
more occasions, while incarcerated, brought an action or appeal in federal court that
was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted. 28 U.S.C. §1915(g). An exception is made for
prisoners who are under imminent danger of serious physical injury. Id.
The following three cases or appeals brought by Plaintiff were dismissed
because they failed to state a claim upon which relief may be granted or because they

were frivolous: Rehbein v. Nelson, et al.,1 No. 4:95CV3157 (D. Neb.), dismissed as
frivolous on August 18, 1995; Diamantopoulos v. Dir. of Corrs., et al., No.
4:05CV3097 (D. Neb.), dismissed for failure to state a claim on May 13, 2005;
Diamantopoulos v. State of Nebraska, et al., No. 8:07CV31 (D. Neb.), dismissed for
failure to state a claim on October 14, 2008.
Here, Plaintiff has not shown that he faces any danger or physical injury. Thus,
he is not permitted to proceed IFP in this court and he is not entitled to proceed IFP
on appeal.
IT IS THEREFORE ORDERED that:
1.
Plaintiff is not entitled to proceed IFP on appeal and the appeal is
dismissed.
2.
The clerk’s office is directed to forward a copy of this Memorandum and
Order to the parties and to the Eighth Circuit Court of Appeals.
DATED this 14th day of May, 2014.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

1

Diamantopoulos is also known as Cary Nelson Rehbein. See Nebraska
D ep ar tmen t of Correctio n al S er v ices , I n mate L o cator , a t
http://dcs-inmatesearch.ne.gov/Corrections/InmateDisplayServlet?DcsId=35084 (last
visited March 3, 2014) (See also Filing No. 1 at CM/ECF p. 7 (inmate number
35084).)
2