Swift v. Williams

Filing 13

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Motion for Leave to Appeal in Forma Pauperis (Filing No. 12 , Part 2) is denied. The clerk of the court 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. (Copy mailed to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT,
Plaintiff,

8:17CV331

vs.
ANGIE WILLIAMS, (Nebr. Family
Cooperitive);

MEMORANDUM
AND ORDER

Defendant.
This matter is before the court on Plaintiff’s Notice of Appeal (Filing No.
12, Part 1) and Motion for Leave to Appeal in Forma Pauperis (Filing No. 12, Part
2). For the reasons set forth below, the court finds that pursuant to 28 U.S.C. §
1915(a)(3), Plaintiff may not take this appeal in forma pauperis.
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 28 U.S.C. §
1915(a). Section 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.” See
also Fed. R. App. P. 24(a)(3) (stating that a party permitted to proceed in forma
pauperis in the district court may do so on appeal without further authorization
unless the district court . . . certifies that the appeal is not taken in good faith . . .
and states in writing its reasons for the certification”). 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 appeal is frivolous when none of the legal points are arguable on their
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 Plaintiff is attempting to appeal—the court’s order on
initial review (Filing No. 11) dated December 8, 2017—is clearly not appealable.
The order does not qualify as a final decision capable of appeal under 28 U.S.C. §
1291. In addition, the order does not fall within the narrow class of appealable
interlocutory orders under § 1292(a).
Because Plaintiff is attempting to appeal from an order that is not
appealable, the court certifies that the appeal is not taken in good faith. Plaintiff
may challenge this determination in the Eighth Circuit Court of Appeals.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Motion for Leave to Appeal in Forma Pauperis (Filing No.
12, Part 2) is denied.
2.
The clerk of the court is directed to provide a copy of this
Memorandum and Order to the Eighth Circuit Court of Appeals.

Dated this 13th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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