United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT UNITED STATES DISTRICT JUDGE.
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On May 11, 2017, the report of the Magistrate Judge
(Dkt. #82) was entered containing proposed findings of fact
and recommendations that Plaintiff Bennie P. Washington's
pro se Motion to Proceed in Forma Pauperis (Dkt.
#78) and Affidavit Accompanying Motion for Permission to
Appeal in Forma Pauperis (Dkt. #81) be denied. Having
received the report of the Magistrate Judge (Dkt. #82),
having considered each of Plaintiff's timely filed
objections (Dkt. #85), and having conducted a de novo review,
the Court is of the opinion that the findings and conclusions
of the Magistrate Judge are correct, and the Court hereby
adopts the Magistrate Judge's report (Dkt. #82) as the
findings and conclusions of the Court.
underlying lawsuit relates to her employment with Plano
Independent School District (Dkt. #55). In connection
therewith, Plaintiff alleged claims for “breach of code
of conduct, disrespectfulness, Civil Rights and
Discrimination, breach of contract, and the hiding of a
previous litigation case, ” related to several
interactions with several of her prior coworkers (Dkt. #55 at
2). On December 10, 2016, the report and recommendation of
the Magistrate Judge was entered containing proposed findings
of fact and recommendation that Defendants Plano ISD,
Assistant Superintendent Kary Cooper, and Plano Independent
School District Board of Trustees' (collectively, the
“Defendants”) Motion to Dismiss (Dkt. #56) and
Motion for Summary Judgment (Dkt. #60) be granted. On January
9, 2017, the Court adopted the report and recommendation of
the Magistrate Judge (Dkt. #75). Following such disposition,
the case was closed. Plaintiff subsequently filed a Notice of
Appeal (Dkt. #77). Plaintiff's Notice of Appeal does not
specifically identify any issue and/or order which Plaintiff
seeks to challenge; Plaintiff indicated she seeks to appeal
from “All Doc.” (Dkt. 77 at 1). The Fifth Circuit
has opened an appellate case number for Plaintiff's suit,
USCA number 17-40371. On April 7, 2017, Plaintiff filed a
Motion to Proceed in Forma Pauperis (on appeal) (Dkt. #78).
On April 14, 2017, the Court advised Plaintiff that her
Motion contained insufficient information for the Court to
rule, and ordered Plaintiff to complete Federal Rule of
Appellate Procedure Form 4 (Dkt. #79). Plaintiff thereafter
submitted the requested form (Dkt. #81); however, Plaintiff
did not complete the “My issues on appeal are:”
section of the form and has not otherwise stated in any of
her filings the issues she intends to present on appeal.
11, 2017, the report of the Magistrate Judge was entered
containing proposed findings of fact and recommendations that
Plaintiff's Motion to Proceed in Forma Pauperis be
denied. Specifically, the Magistrate Judge found that
Plaintiff's Affidavit Accompanying Motion for Permission
to Appeal in Forma Pauperis failed to: (1) establish that
Plaintiff lacks the financial resources to prosecute an
appeal; or (2) identify the issues she intends to present on
appeal. Subsequently, on May 22, 2017, Plaintiff filed her
Adjustion [sic] Report (Dkt. #85), which the Court construes
as objections to the Magistrate Judge's recommendation.
Also on May 22, 2017, Plaintiff filed a Motion for Discovery
(Dkt. #84). The Court addresses both Plaintiff's
Objection and Motion for Discovery herein.
Plaintiff's Objection to the Magistrate Judge's
Report and Recommendation
the law, a party who files timely written objections to a
magistrate judge's report and recommendation is entitled
to a de novo determination of those findings or
recommendations to which the party specifically objects. 28
U.S.C. § 636(b)(1)(c); Fed.R.Civ.P. 72(b)(2)-(3).
Plaintiff objects to the Magistrate Judge's “ruling
on [Plaintiff] having to pay for the appeall [sic].”
Plaintiff's objection is directed at the Magistrate
Judge's finding regarding Plaintiff's financial
standards governing in forma pauperis motions are
set forth in 28 U.S.C. § 1915(a). The motion must state
“the nature of the action, defense or appeal and
affiant's belief that he is entitled to redress.”
28 U.S.C. § 1915(a); see also Fed. R. App. P.
24(a)(1) (“The party must attach an affidavit that: (A)
shows in the detail prescribed by Form 4 of the Appendix of
Forms the party's inability to pay or to give security
for fees and costs; (B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on
appeal.”). Title 28 U.S.C. § 1915(a)(3) further
states that the district court may deny leave to proceed
in forma pauperis if an appeal is not taken in
“good faith” (i.e., if the appeal fails to
present a non-frivolous issue). Cay v. Estelle, 789
F.2d 318, 326 (5th Cir. 1986).
appeal is taken in good faith if it presents an arguable
issue on the merits or factual basis for the claim and
therefore is not frivolous. Coppedge v. United
States, 369 U.S. 438, 445 (1962); Howard v.
King, 707 F.2d 215, 219 (5th Cir. 1983). To that end, a
movant must demonstrate the existence of a non-frivolous
issue for appeal. See also Payne v. Lynaugh, 843
F.2d 177, 178 (5th Cir. 1988). If the district court cannot
discern the existence of any non-frivolous issue on appeal,
then an appeal is not taken in “good faith” and
the movant's petition to appeal in forma pauperis must be
denied. Howard, 707 F.2d at 220 (citation omitted).
The district court should consider any pleadings and motions
of a pro se litigant under less stringent standards
than those applicable to licensed attorneys. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Notwithstanding,
although pro se briefs must be liberally construed,
even pro se litigants must brief arguments in order
to preserve them. Yohey v. Collins, 985 F.2d 222,
222-25 (5th Cir. 1993).
submitted an Affidavit in support of her Motion as required
by Federal Rule of Appellate Procedure 24. Based on
Plaintiff's Affidavit Accompanying Motion for Permission
to Appeal in Forma Pauperis (Dkt. #81), the Magistrate Judge
evaluated Plaintiff's indigency and found that Plaintiff
possessed the financial resources to prosecute an appeal.
Even if the District Court reversed such finding,
Plaintiff's Motion must still be denied under the present
circumstances. Plaintiff has wholly failed to identify the
issues she intends to present on appeal in any of her
filings, including specifically her Federal Rule of Appellate
Procedure Form 4. Plaintiff has an obligation to demonstrate
that her requested appeal raises non-frivolous issues. The
Court cannot discern, and Plaintiff has not identified, any
non-frivolous issues for appeal (Dkts. #77-78; Dkt. #81).
Thus, the Court adopts the recommendation of the Magistrate
Motion for Discovery
May 22, 2017, Plaintiff filed a Motion for Discovery (Dkt.
#84) after entry of a final judgment and the case was closed.
Plaintiff's Motion states, in its entirety, “1. I
am requesting for a copy of discovery for this case”
[Dkt. 84 at 1]. To the extent Plaintiff seeks copies of
discovery propounded between the Parties, such request must
be denied because discovery documents are not contained in
the Court's file. See United States v. Williams,
No. 3:08-CR-72(01) RM, 2010 WL 1980092, at *1 (N.D. Ind. May
18, 2010) (finding that pro se defendant's
request for “copies of discovery documents” must
be denied because those documents were not contained in the
court's file). To the extent Plaintiff's Motion for
Discovery seeks free copies of discovery documents in the
Court's record, such relief must also be denied. Even in
the context of a criminal prosecution, where a person's
liberty is at stake, the law is clear that a plaintiff is not
entitled to free copies of transcripts and/or the record
merely because he or she is indigent. See Harless v.
United States, 329 F.2d 397, 398-99 (5th Cir. 1964)
(“The statutory right to proceed in forma pauperis does
not include the right to obtain copies of court orders,
indictments, and transcript of record, without payment
therefor, for use in proposed or prospective
litigation.”); Bonner v. Henderson, 517 ...