Litschewski v. Kaemingk et al

Filing 21

ORDER denying 16 Motion to Extend ; denying as moot 18 Motion for Leave to Proceed in forma pauperis. Signed by U.S. District Judge Roberto A. Lange on 1/17/18. (DJP)

BLED
UNITED STATES DISTRICT COURT

JAN 1 7 2018
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

RICHARD LITSCHEWSKI,

1:17-CV-01023-RAL

Plaintiff,
vs.

DENNIS

KAEMINGK, SECRETARY

CORRECTION

OF

STATE

OF

OF

SOUTH

ORDER DENYING MOTION FOR
EXTENSION OF TIME TO FILE A NOTICE
OF APPEAL AND DENYING MOTION

FOR LEAVE OT PROCEED IN FORMA

DAKOTA, INDIVIDUAL AND OFFICIAL

CAPACITY;
WARDEN

AND
AT

ROBERT

MIKE

PRISON, INDIVIDUAL
CAPACITY;

DURFEE

AND

PAUPERIS

DOOLEY,
STATE

OFFICIAL

Defendants.

Plaintiff Richard Litschewski, a former inmate of the Mike Durfee State Prison in

Springfield, South Dakota, brought this aetion ehallenging his state court sexual assault
eonvictions, the ealculation of his sentence length/release date, or the eonditions of his

eonfinement. Doe. 1. On November 27, 2017, this Court filed an Opinion and Order Screening
Case and Ruling on Pending Motions and an aeeompanying Judgment of Dismissal. Docs. 9, 10.
On December 26, 2017, Plaintiff Riehard Litsehewski filed a motion for extension of

time to file notice of appeal and for a eourt appointed attorney. Doc. 16. Litschewski claims he
needs an extension in order research and prepare an appeal.
Federal Rule of Appellate Procedure 4(a)(5)(A) states:

The distriet eourt may extend the time to file a notiee of appeal if:
(i) a party so moves no later than 30 days after the time preseribed by this
Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days
after the time prescribed by this Rule 4(a) expires, that party shows excusable
neglect or good cause.

Rule 4(a)(1)(A) states that a notice of appeal "must be filed with the district clerk within 30 days
after the judgment or order appealed from is entered."

Litschewski's motion for extension was filed on December 26, 2017. Doc. 16. Thus, he
satisfied the first prong of Rule 4(a)(5). Litschewski must next show that the reason he is entitled

to an extension is because of "excusable neglect or good cause." Gibbons v. United States, 317

F.3d 852, 853 (8th Cir. 2003). Upon review of his motion, Litschewski does not show that "good
cause" warrants an extension, nor does he show any "excusable neglect." The reason he wants an

extension is so he can review ease law that is not provided to him by the prison and decide
whether he should appeal. Doc. 16. This reason is insufficient to warrant an extension.

Litschewski also requested this court appoint him counsel on appeal. Doe. 16. This Court
has no authority to appoint counsel to parties before other courts.

On January 16, 2018, Litschewski moved to appeal without prepayment of fees. Doc. 18.
The notice of appeal filed by Litschewski has been transmitted to the United States Court of

Appeals for the Eighth Circuit, Doe. 20, which frequently looks to the district court to rule on in

forma pauperis motions. Under Federal Rule of Appellate Procedure 24, "A party who was
permitted to proceed in forma pauperis in the district-court action . . . may proceed on appeal in
forma pauperis without further authorization[.]" This court granted Litschewski's motion to
proceed without prepayment of fees. Doe. 9. Therefore, Litschewski may proceed on appeal in
forma pauperis without ftirther authorization from this court. Since that time, however,
Litschewski was released from prison. According to his declaration after release, Litschewski's
only source ofincome is monthly veterans disability payments of $139.00. Doc. 18. Litschewski
appears to be indigent. Accordingly it is.

ORDERED that Plaintiffs motion for leave to proceed in forma pauperis on appeal, Doc.
18, is moot because he may proceed without further authorization, and to the extent that it
somehow is not moot, is granted. It is further

ORDERED that Litsehewski's motion for extension of time to appeal and for a court
appointed attorney. Doc. 16, is denied.

DATED this

day of January, 2018.
BY THE COURT:

ROBERTO A. LANGE

UNITED STATES DISTRICT JUDGE