Jones v. Barr

Filing 55

MEMORANDUM AND ORDER Petitioner may not proceed on appeal in forma pauperis. Member Cases: 8:20-cv-00081-JFB-PRSE, 8:20-cv-00275-JFB-PRSEOrdered by Senior Judge Joseph F. Bataillon. (Copy mailed to pro se party)(LRM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARVEL JONES,
Petitioner,

8:20CV81

vs.
MEMORANDUM AND ORDER
DON WHITMIRE,
Respondent.

MARVEL JONES,
Petitioner,

8:20CV275

vs.
MEMORANDUM AND ORDER
DON WHITMIRE,
Respondent.

These consolidated cases are before the Court on what is construed as
Petitioner’s Notice of Appeal, Filing No. 52, Case No. 8:20CV81; Filing No. 53, Case
No. 8:20CV275, and a memorandum from the Clerk of the Court requesting a ruling as
to Petitioner’s authorization to proceed in forma pauperis on appeal, Filing No. 54, Case
No. 8:20CV81; Filing No. 55, Case No. 8:20CV275. The Notice of Appeal was filed
more than a year after the Court entered its 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. This requirement is
both “mandatory and jurisdictional.” 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 30day 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 4(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 12, 2022.
Petitioner filed his Notice of Appeal 479 days later. 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. Because Petitioner’s appeal is
grossly untimely, the Court certifies Petitioner’s appeal is not taken in good faith and he
is not entitled to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a)(3) (“An
appeal may not be taken in forma pauperis if the trial court certifies in writing that it is
not taken in good faith.”).
IT IS ORDERED that: Petitioner may not proceed on appeal in forma pauperis.

Dated this 14th day of November, 2023.

BY THE COURT:

Joseph F. Bataillon
Senior United States District Judge

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