Herzog v. State of Nebraska

Filing 10

MEMORANDUM AND ORDER- Plaintiff's Motion for Leave to Proceed IFP (Filing No. 2 ) is provisionally granted. Plaintiff is not required to pay the filing fee in this matter. The Clerk of the court is directed to send a copy of this Memorandum and Order to the appropriate officials at the Norfolk Regional Center. Ordered by Judge Laurie Smith Camp. (Copy to pro se party and Copies mailed as directed)(GJG)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA ANDREW A. HERZOG, Plaintiff, v. STATE OF NEBRASKA, et, al, Defendant. ) ) ) ) ) ) ) ) ) CASE NO. 8:10CV112 MEMORANDUM AND ORDER This matter is before the court on Plaintiff's Motion for Leave to Proceed In Forma Pauperis ("IFP"). (Filing No. 2.) Upon review of the record in this case, the court finds that Plaintiff is financially eligible to proceed IFP, and the court will presume that Plaintiff is not a prisoner for the purposes of the Prison Litigation Reform Act ("PLRA"). The term "prisoner" under the PLRA "means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001)(citing 28 U.S.C. 1915(h)). A person involuntarily committed as a mental patient, and not as a result of a criminal conviction, is not a "prisoner" for the purposes of the PLRA. Id.; see also Jackson v. Johnson, 475 F.3d 261, 266 (5th Cir. 2007); Willis v. Smith, No. C04-4012MW B, 2005 WL 550528, *9 (N.D. Iowa 2005). The record does not disclose whether Plaintiff's current commitment to the Norfolk Regional Center arises from any criminal conviction. However, to facilitate a more expeditious resolution of this case, the court will presume that Plaintiff is residing at the Norfolk Regional Center as a patient and not as the result of a criminal conviction. Upon review of the record, Plaintiff's Motion for Leave to Proceed IFP is granted, and Plaintiff is relieved from payment of the filing fee in this matter. IT IS THEREFORE ORDERED that: 1. Plaintiff's Motion for Leave to Proceed IFP (Filing No. 2) is provisionally granted. Plaintiff is not required to pay the filing fee in this matter; and The Clerk of the court is directed to send a copy of this Memorandum and Order to the appropriate officials at the Norfolk Regional Center. 2. DATED this 14th day of April, 2010. BY THE COURT: s/Laurie Smith Camp United States District Judge *This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?