Alia v. Mobil

Filing 10

MEMORANDUM AND ORDER - Plaintiff's Motion for Leave to Appeal in Forma Pauperis, Filing No. 9 , is denied Ordered by Senior Judge John M. Gerrard. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SAMUEL M. ALIA,
Petitioner,

8:24CV489

vs.
MEMORANDUM AND ORDER
MICHEAL MOBIL,
Respondent.
This matter is before the Court on a Notice of Appeal, Filing No. 8, and
Motion for Leave to Appeal in Forma Pauperis, Filing No. 9, filed by Plaintiff
Samuel M. Alia (“Plaintiff”). 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 §
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.” 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 granting Plaintiff leave to proceed in forma pauperis and notifying him
the next step in his case is for this Court to perform an initial review of his
Complaint pursuant to 28 U.S.C. § 1915(e), Filing No. 7, dated January 7,
2025—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.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to
Appeal in Forma Pauperis, Filing No. 9, is denied.
Dated this 10th day of March, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge

2