Gardner v. State of Nebraska

Filing 179

ORDER - IT IS THEREFORE ORDERED that: Petitioner may not proceed on appeal in forma pauperis. This matter is closed, and Petitioner should refrain from filing any further frivolous 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
JUSTIN GARDNER,
Petitioner,

8:18CV46

vs.
ORDER
STATE OF NEBRASKA,
Respondent.

This matter is before the court on the Notice of Appeal (filing 177) filed by
Petitioner on June 2, 2022, and a memorandum from the Clerk of the Court
requesting a ruling as to Petitioner’s authorization to proceed in forma pauperis
(“IFP”) on appeal (filing 178). Petitioner seeks to appeal the court’s April 12, 2022
Memorandum and Order (filing 170) denying him leave to proceed IFP on his
previous appeal which is presently pending in the Eighth Circuit Court of Appeals.
Petitioner cannot appeal this court’s denial of leave to proceed IFP on
appeal. Rather, Petitioner should file a motion to proceed IFP in the Court of
Appeals, which the Court of Appeals specifically directed him to do. (Filings 174
& 176.) See Fed. R. App. P. 24(a)(5) (“A party may file a motion to proceed on
appeal in forma pauperis in the court of appeals within 30 days after service of the
notice [of the district court’s denial].”). Additionally, Petitioner has already
pursued an interlocutory appeal, direct appeal, and his ninth appeal is presently
pending. Accordingly, I certify that this appeal is frivolous and not taken in good
faith, and Petitioner may not proceed in forma pauperis on appeal. See Fed. R.
App. P. 24(a)(3) and 28 U.S.C. § 1915(a)(3).
IT IS THEREFORE ORDERED that: Petitioner may not proceed on appeal
in forma pauperis. This matter is closed, and Petitioner should refrain from filing
any further frivolous appeals.

Dated this 8th day of June, 2022.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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