Jones v. Herian ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA MARVEL JONES, Plaintiff, 8:20–CV–365 vs. ORDER GRANTING LEAVE TO KATHY HERIAN, ET AL., in their individual PROCEED IN FORMA PAUPERIS ON capacities only, APPEAL Defendants. This Court terminated the above-captioned case on March 30, 2023, after issuing an Order adverse to pro se Plaintiff Marvel Jones. See Filing 116; Filing 117. Jones subsequently filed a Notice of Appeal on April 24, 2023. Filing 118. This matter is now before the Court for a determination as to whether Jones may proceed in forma pauperis on appeal. Filing 119.1 Federal Rule of Appellate Procedure 24(a) leaves it to the district court to determine if a litigant may appeal in forma pauperis. See Fed. R. App. P. 24(a)(1). If the party wishing to proceed in forma pauperis was already permitted to do so in the district-court action, that party requires no further authorization to appeal in forma pauperis unless the appeal is not taken in good faith, the party is not otherwise entitled to proceed in forma pauperis, or a statute provides otherwise. See Fed. R. App. P. 24(a)(3)(A)–(B). Jones was previously allowed to proceed in forma pauperis before this Court, Filing 7, and the exceptions under Rule 24(a)(3) do not apply. Accordingly, 1The Court notes that the memorandum from the Clerks’ Office to the undersigned Judge describes Jones as a “prisoner” and references the Prison Litigation Reform Act. See Filing 119. As Judge Kopf noted when he initially granted Jones permission to proceed in forma pauperis before this Court, Jones “is not a prisoner within the meaning of the PLRA.” Filing 7 at 5 n.1. Jones is a civilly committed sex offender at the Norfolk Regional Center. Filing 116 at 1. See Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001); see also Reed v. Clarke, No. 4:04CV3168, 2005 WL 1075092, at *1 (D. Neb. May 5, 2005) (“The Prison Litigation Reform Act (‘PLRA’) does not apply to persons in custody pursuant to the Mental Health Commitment Act, as the definition of ‘prisoner’ in the PLRA does not include a person involuntarily committed for reasons of mental health”). IT IS ORDERED: Jones is permitted to appeal in forma pauperis. Dated this 24th day of April, 2023. BY THE COURT: Brian C. Buescher United States District Judge