Bolar v. Hunter et al

Filing 14

ORDER regarding Notice of Appeal to USCA 10 filed by Shelia M. Bolar. 1. Plaintiff may proceed in forma pauperis on appeal. 2. The court finds that the Notice of Appeal was not timely filed and that Plaintiff has not made a sufficient showing o f excusable neglect or good cause to permit the granting of an extension of time. 3. The clerk's office shall provide the Eighth Circuit Court of Appeals with a copy of this order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHELIA M. BOLAR,
Plaintiff,

8:17CV72

vs.
JOSEPH HUNTER, et al.,

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on Plaintiff’s Notice of Appeal (Filing No.
10), filed on June 21, 2017. Plaintiff appeals from the court’s May 4, 2017,
Judgment (Filing No. 9) and Memorandum and Order (Filing No. 8), in which the
court dismissed this matter without prejudice.
Plaintiff was previously granted leave to proceed in forma pauperis in this
matter (Filing No. 7). As set forth in Federal Rule of Appellate Procedure 24(a)(3):
A party who was permitted to proceed in forma pauperis in the
district-court action, or who was determined to be financially unable
to obtain an adequate defense in a criminal case, may proceed on
appeal in forma pauperis without further authorization, unless:
(A) the district court--before or after the notice of appeal is
filed--certifies that the appeal is not taken in good faith or finds
that the party is not otherwise entitled to proceed in forma
pauperis and states in writing its reasons for the certification or
finding . . . .
The court finds that because Plaintiff proceeded IFP in the district court, she may
now proceed on appeal in forma pauperis without further authorization.

Pursuant to Fed. R. App. P. 4(a)(1)(A), Plaintiff had 30 days after entry of
the Judgment, or until June 5, 2017, to file the Notice of Appeal. Plaintiff states in
the Notice of the Appeal that she did not receive the court’s mailing until after that
date, and that she then tried mailing the Notice of Appeal twice without success
from the main post office in Omaha. This unverified statement is not credible, nor
is it consistent with what Plaintiff previously told the clerk of the court on June 7,
2017, when she phoned to say that she had mailed the Notice of Appeal two weeks
earlier and indicated she would bring her copy to the clerk the next day. (See
Docket Sheet entry.)
The court finds that Plaintiff has not made a sufficient showing of excusable
neglect or good cause for an extension of time under Fed. R. App. P. 4(a)(5)(A)(ii).
In all other respects, however, the appeal appears to be taken in good faith.
IT IS THEREFORE ORDERED that:
1.

Plaintiff may proceed in forma pauperis on appeal.

2.
The court finds that the Notice of Appeal was not timely filed and that
Plaintiff has not made a sufficient showing of excusable neglect or good cause to
permit the granting of an extension of time.
3.
The clerk’s office shall provide the Eighth Circuit Court of Appeals
with a copy of this order.
Dated this 23rd day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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