Sherri Lowe v. Wellcare Health Plans Inc., et al

Filing

Case: 09-11062

Document: 00511200047

Page: 1

Date Filed: 08/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11062 S u m m a r y Calendar August 10, 2010 Lyle W. Cayce Clerk

S H E R R I R. LOWE, P la in t if f ­ A p p e lla n t , v. W E L L C A R E HEALTH PLANS INC.; IRVING GILBERT, D e fe n d a n t s ­ A p p e lle e s .

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:09-CV-806

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* S h e r r i R. Lowe filed a complaint against Wellcare Health Plans, Inc. and I r v in g Gilbert seeking to recover money allegedly due her for services rendered a s a supplemental insurance salesperson. Upon the magistrate judge's (MJ) r e c o m m e n d a t io n , the district court dismissed the complaint. The district court d e n ie d Lowe leave to proceed in forma pauperis (IFP) after certifying that her a p p e a l was not taken in good faith. Lowe has challenged that certification by

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-11062

Document: 00511200047 Page: 2 No. 09-11062

Date Filed: 08/10/2010

m o v in g this court for leave to proceed IFP on appeal. See Baugh v. Taylor, 117 F .3 d 197, 202 (5th Cir. 1997). L o w e maintains that her complaint should not have been dismissed w it h o u t service upon the defendants. Further, she asserts that, once she was g r a n t e d IFP status in the district court, she was entitled to a trial and the a p p o in tm e n t of counsel. Lowe is incorrect. A district court may dismiss an IFP c o m p la in t "at any time" if it is determined that the action is frivolous, malicious, o r fails to state a claim. 28 U.S.C. § 1915(e)(2). A review of the record in this case reveals that the MJ acted within his a u t h o r it y when he screened Lowe's case, denied the appointment of counsel, and m a d e recommendations regarding the case. See 28 U.S.C. § 636(b)(1)(A), (B). However, it was the district court that dismissed Lowe's complaint. Lowe argues t h a t she never received a copy of the MJ's report and recommendation. We a c c e p t this argument as true for the purposes of this appeal and conclude that a n y such error is harmless as Lowe has not shown any prejudice from the lack o f receipt of that report. See McGill v. Goff, 17 F.3d 729, 731-32 (5th Cir. 1994); B r a x to n v. Estelle, 641 F.2d 392, 397 (5th Cir. 1981). L o w e also maintains that because she was allowed to proceed IFP in the d is t r ic t court she should not require authorization to proceed IFP on appeal. Such authorization is required, however, because the district court certified that h e r appeal was not taken in good faith. FED. R. APP. P. 24(a)(3)(A). L o w e has not shown that she will raise a nonfrivolous issue on appeal. The instant appeal is without arguable merit and is thus frivolous. Accordingly, L o w e 's IFP motion is DENIED. See Howard v. King, 707 F.2d 215, 219-20 (5th C ir . 1983). Her appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh, 1 1 7 F.3d at 202 n.24.

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