United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Michael Wiseley, appearing pro se, brought this action
pursuant to 42 U.S.C. § 1983. (Docket 1). The court
granted plaintiff leave to proceed in forma pauperis but
dismissed his complaint for failure to state a claim upon
which relief could be granted. (Docket 12). Plaintiff sent
the court a letter moving for an extension of his appeal
deadline and asking the court to accept his letter as a
notice of appeal. (Docket 15). He also moved for leave to
proceed on appeal in forma pauperis. (Docket 16). He filed
the required prisoner trust account report. (Docket 17). The
court grants plaintiff an extension of time to appeal and
treats his letter as a notice of appeal, but denies him leave
to proceed on appeal in forma pauperis.
Motion to Extend Appeal Deadline
letter, plaintiff stated he “realize[s] this is a bit
past the deadline for appeal however [he] was waiting
on” a prisoner trust account report. (Docket 15). He
also stated he “was never actually sent Notice of
Appeal motion papers for this file[.]” Id. He
asks the court to accept his letter and his motion for leave
to proceed on appeal in forma pauperis as his notice of
appeal. Id. He further asks the court to accept the
documents “as tardy due to waiting on institution
paperwork[.]” Id. The court construes
plaintiff's letter as a motion to extend his appeal
deadline and a notice of appeal.
court entered judgment in favor of defendants on September
10, 2019. (Docket 13). Plaintiff had 30 days to file a notice
of appeal. Fed. R. App. P. 4(a)(1)(A). Plaintiff's
deadline to appeal was October 11, 2019. Plaintiff's
letter was dated October 15 and was filed on October 18.
(Docket 15). Federal Rule of Appellate Procedure 4(a)(5)
allows a plaintiff to seek an extension of time in which to
appeal within 30 days after the appeal deadline.
Plaintiff's motion for an extension is timely.
court may extend the time to file a notice of appeal if the
movant “shows excusable neglect or good cause.”
Fed. R. App. P. 4(a)(5)(A)(ii).
[The United States Court of Appeals for the Eighth Circuit]
consider[s] four factors in determining whether excusable
neglect or good cause for an extension exists: (1) the danger
of prejudice to the non-moving party; (2) the length of delay
and its potential impact on judicial proceedings; (3) the
reason for the delay, including whether it was within the
reasonable control of the movant; and (4) whether the movant
acted in good faith.
Treasurer, Trustees of Drury Indus., Inc. Health Care Plan
& Tr. v. Goding, 692 F.3d 888, 893 (8th Cir. 2012). Of
these factors, the reason for the delay is the most critical.
Id. These factors weigh in favor of granting an
first factor, there is no prejudice to the non-moving party
because the court did not permit plaintiff to serve his
complaint on the named defendants. The second factor weighs
in favor of an extension because plaintiff contacted the
court promptly after his appeal deadline passed, creating
little delay. Plaintiff's reason for delay is
meritorious. The court originally mailed its judgment and a
prisoner appeal packet to the Winner City Jail in Winner,
South Dakota. However, plaintiff was moved from the Winner
City Jail to the Pennington County Jail in Rapid City, South
Dakota, requiring the court to resend the documents to
plaintiff again. This address mix-up created the delay.
Finally, plaintiff acted in good faith in seeking the
extension, as evidenced by his prompt letter to the court
after the appeal deadline passed.
court finds plaintiff met his burden to justify an extension
of time to appeal the court's judgment. Under Rule
4(a)(5), the court is permitted only to grant an extension
lasting “30 days after the prescribed time or 14 days
after the date when the order granting the motion is entered,
whichever is later.” Fed. R. App. P. 4(a)(5)(C). Here,
the later date works out to November 27, 2019.
court construes plaintiff's letter as a notice of appeal.
In the letter, Plaintiff asks the court to accept his
documents as a notice of appeal. (Docket 15). While
plaintiff's letter does not meet the requirements of Rule
3(c) describing the necessary contents of a notice of appeal,
the notice “may not be dismissed for informality of
form or title of the notice of appeal, or for failure to name
a party whose intent to appeal is otherwise clear from the
notice.” Fed. R. App. P. 3(c)(4). Plaintiff's
letter clearly expresses his intent to appeal the court's
judgment. The court will accordingly direct the Clerk of
Court to treat the letter as a notice of appeal and transmit
it to the Eighth Circuit.
Motion to Proceed in Forma Pauperis on Appeal
process for seeking leave to proceed in forma pauperis on
appeal as a prisoner is remarkably complex. It is governed by
both 28 U.S.C. § 1915 and Federal Rule of Appellate
Procedure 24. Section 1915 requires a prisoner to file
“an affidavit that includes a statement of all
assets” and that “shall state the nature of the .
. . appeal” along with a prisoner trust account report.
28 U.S.C. §§ 1915(a)(1), (2). Section 1915 further
requires the court to determine if the appeal is taken in
“good faith.” Id. at § 1915(a)(3).
“Good faith in this context is judged by an objective
standard and not by the subjective beliefs of the
appellant.” Maddox v. Chisago Cty. Sheriff Office, No.
10-CV-2133, 2010 WL 3119393, at *2 (D. Minn. Aug. 5, 2010)
(citing Coppedge v. United States, 369 U.S. 438, 444-45
(1962)). In determining whether an appeal is taken in good
faith, the court must decide “whether the claims to be
decided on appeal are factually or legally ...