Evans v. Mosaic ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA BERNIECE EVANS, Plaintiff, 8:20CV153 vs. MEMORANDUM MOSAIC, AND ORDER Defendant. This matter is before the court on Plaintiff’s Notice of Appeal (Filing 13) and Motion for Leave to Appeal in Forma Pauperis (Filing 14). 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 on initial review (Filing 12) dated May 6, 2021—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 14) is denied. DATED this 4th day of June, 2021. BY THE COURT: Richard GY Ae YA Richard G. Kopf Senior United States District Judge