Larson v. Minnesota Sex Offender Program, the et al

Filing 49

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL 42 . (Written Opinion) Signed by Judge John R. Tunheim on 1/19/2023. (KKM)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
HOLLIS J. LARSON,
Civil. No. 13-1074 (JRT/DJF)
Plaintiff,
v.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS ON
APPEAL

THE MINNESOTA SEX OFFENDER
PROGRAM et al.,
Defendants.

Hollis J. Larson, MSOP, 1111 Highway 73, Moose Lake, MN 55767, pro se
plaintiff.
Plaintiff Hollis J. Larson sued the Minnesota Sex Offender Program alleging various
forms of maltreatment. Larson requested the appointment of counsel, and a magistrate
judge denied the request. Larson seeks to appeal the denial directly to the Eighth Circuit
Court of Appeals and has requested permission from the Court to do so in forma pauperis
(“IFP”).

Because an appeal directly to the Eighth Circuit cannot be taken on a

nondispositive matter such as the Magistrate Judge Order, the Court must deny the
request for IFP status.
BACKGROUND
Plaintiff Hollis J. Larson is civilly committed under the Minnesota Sex Offender
Program (“MSOP”). Pursuant to 42 U.S.C. § 1983, Larson is suing the MSOP and its staff
for various forms of maltreatment at the facility. (See Compl. at 3, 42–46, May 6, 2013,

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Docket No. 1.) Larsons’s case was stayed pending the disposition of Karsjens v. Minnesota
Department of Human Services et al., No. 11-3659, because Larson was part of the class
represented in that case.1 After the final decision in Karsjens v. Harpstead, No. 11-3659,
2022 WL 542467 (D. Minn. Feb. 23, 2022), Larson noticed his intent to prosecute his claims.
(Notice of Intent to Prosecute, July 13, 2022, Docket No. 19.) The stay was lifted on
October 3, 2022. (Order Lifting Stay at 24–25, Oct. 3, 2022, Docket No. 24.) Larson moved
for the appointment of counsel. (Mot. Appoint Counsel, July 13, 2022, Docket No. 20.)
Magistrate Judge Dulce J. Foster determined that Larson’s Amended Complaint
alleges a colorable basis for relief and granted Larson’s application to proceed in forma
pauperis in the District Court action. (See Order Den. Appointment of Counsel at 3, Dec.
1, 2022, Docket No. 32.) In the same order, the Magistrate Judge denied Larson’s Motion
to Appoint Counsel. (Id. at 4.) Larson has appealed the denial of appointment of counsel
to the Eighth Circuit and requests this Court to grant permission to proceed in forma
pauperis on appeal. (Mot. Appeal In Forma Pauperis, Dec. 15, 2022, Docket No. 42.) The
Court will therefore consider his present application for IFP status.
DISCUSSION
A litigant who seeks to be excused from paying the filing fee for an appeal in a
federal case may apply for IFP status under 28 U.S.C. § 1915. The in forma pauperis

1(See

Am. Order at 13, May 17, 2013, Docket No. 7; 2nd Am. Order at 20–21, Oct. 27, 2014,
Docket No. 11; 3rd Am. Order at 23, Aug. 20, 2015, Docket No. 12; 4th Am. Order at 31, June 30,
2017, Docket No. 13; 5th Am. Order at 24–25, Dec. 20, 2018, Docket No. 16.)

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statute has been applied to prisoner and non-prisoner cases alike. See Nichole K. v.
Commissioner of Social Security, No. 19-1662, 2019 WL 3037087, at *1, n.1 (D. Minn. July
11, 2019). To qualify for IFP status, the litigant must demonstrate that they cannot afford
to pay the full filing fee. 28 U.S.C. § 1915(a)(1).
A party that seeks to proceed in forma pauperis on appeal must file a motion in
district court. Fed. R. App. P. 24(a)(1). The “prior approval” clause allows a party that was
permitted to proceed in forma pauperis in the district court action to proceed in forma
pauperis on appeal without further authorization. Fed. R. App. P. 24(a)(3). However,
Larson may not proceed in forma pauperis if the Court determines his “appeal is not taken
in good faith.” Fed. R. App. P. 24; 28 U.S.C. § 1915(a)(3).
An appeal is taken in good faith when the party seeking review presents objectively
nonfrivolous issues. Coppedge v. United States, 369 U.S. 438, 444–45 (1962). Claims that
lack an arguable basis in either law or fact are frivolous. Neitzke v. Williams, 490 U.S. 319,
325 (1989). Here, the Court determines that Larson’s appeal is legally frivolous because
the Magistrate Judge’s order may not be appealed directly to the Eighth Circuit Court of
Appeals.
Magistrate judges may hear and determine certain pretrial matters under the
Federal Magistrate Judges Act. 28 U.S.C. § 636(b)(1)(A); accord D. Minn. LR 72.1(a)(2).
However, a magistrate judge’s decision pursuant to § 636 is not a final order and initial
review rests with the district court, unless the parties have “explicitly and unambiguously

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consented to the magistrate judge’s jurisdiction under 28 U.S.C. § 636(c).” LeGear v.
Thalacker, 46 F.3d 36, 37 (8th Cir. 1995). Both the Federal Rules of Civil Procedure and
this district’s local rules address how an order of a magistrate judge may be challenged if
consent has not been given. See Fed. R. Civ. P. 72; D. Minn. LR 72.2(a). Denial of
appointment of counsel is a nondispositive matter, which must be appealed within 14
days after being served with a copy to the district judge assigned to the case. See Hollie
v. Essentia Health Moose Lake Clinic, No. 22-314, 2022 WL 2817107, at *1 (D. Minn. July
19, 2022) (finding that a ruling on a motion for the appointment of counsel is
nondispositive); Fed. R. Civ. P. 72(a); D. Minn. LR 72.2(a)(1). Therefore, the proper course
is for Larson to appeal the Magistrate Judge’s order to this Court, not to the Eighth Circuit.
Since the appeal is legally frivolous, it cannot be considered in good faith. See
Slangal v. Cassel, 962 F. Supp. 1214, 1216–17 (D. Neb. 1997) (finding an action legally
frivolous in part because there was no plausible jurisdiction). Accordingly, the Court must
deny Larson’s IFP application. The Court encourages Larson to appeal the Magistrate
Judge’s Order to this Court if he seeks review of the denial of his motion for appointment
of counsel.2

2

Though technically the deadline for such an objection is fourteen days after the filing of
the Magistrate Judge’s order, and has passed, the Court will consider any future objection filed
by Larson on this matter timely if it is received by the Court within fourteen days of the date of
this Order, because Larson attempted to appeal this matter within the fourteen-day deadline.
Fed. R. Civ. P. 72(a); D. Minn. LR 72.2(a)(1).

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Larson’s Application for Leave to Proceed In Forma Pauperis on
Appeal [Docket No. 42] is DENIED.

DATED: January 19, 2023
at Minneapolis, Minnesota.

JOHN R. TUNHEIM
United States District Judge

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