Timothy Chatmon v. West Texas Counseling & Rehab, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [15-11239 Dismissed as Frivolous] Judge: EHJ , Judge: JES , Judge: JLD Mandate pull date is 05/23/2017; denying motion to proceed IFP filed by Appellant Mr. Timothy Chatmon [8105946-2] [15-11239]

Case: 15-11239

Document: 00513976710

Page: 1

Date Filed: 05/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-11239
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
May 2, 2017
Lyle W. Cayce
Clerk

TIMOTHY CHATMON,
Plaintiff-Appellant
v.

WEST TEXAS COUNSELING & REHABILITATION; DR. JUAN GARCIA;
IVAN GARCIA; TONYA MCKINZEY,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-945
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Timothy Chatmon seeks leave to proceed in forma pauperis (IFP) on
appeal from the Federal Rule of Civil Procedure 12(b)(6) dismissal of his
complaint alleging breach of contract and violations of Title VII of the Civil
Rights Act (Title VII) and the Americans with Disability Act (ADA). By moving
to proceed IFP, Chatmon is challenging the district court’s certification that

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Our inquiry into a litigant’s good faith “is limited to whether
the appeal involves legal points arguable on their merits (and therefore not
frivolous).”

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal

quotation marks and citation omitted).
This court reviews a Rule 12(b)(6) dismissal de novo, “accepting all wellpleaded facts as true and viewing those facts in the light most favorable to the
plaintiffs.”

Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (internal

quotation marks and citation omitted). “Factual allegations must be enough
to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570).
In its dismissal of Chatmon’s complaint, the district court found that
Chatmon failed to allege facts necessary to state claims upon which relief could
be granted.

The district court determined, inter alia, (1) that Chatmon’s

allegations did not indicate that his employment was anything other than atwill employment; (2) that Chatmon neither specified his actual disability nor
alleged how his request not to work on Saturdays was reasonably related to
his disability; and (3) that Chatmon did not allege that before deciding to
terminate Chatmon’s employment, West Texas knew that Chatmon requested
off work on December 24, 2012 for religious reasons.
On appeal, Chatmon does not identify, challenge, or refute any of these
conclusions by the district court. Although this court applies “less stringent
standards to parties proceeding pro se than to parties represented by counsel”
and liberally construes the briefs of pro se litigants, pro se parties must still

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brief the issues and reasonably comply with the requirements of Federal Rule
of Appellate Procedure 28. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995);
see Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). By failing to identify
any error in the district court’s analysis that his complaint failed to state a
claim upon which relief could be granted, Chatmon has abandoned on appeal
any argument against this determination. See Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Additionally, Chatmon’s assertion that the district court erred when it
denied his motion for discovery is without merit. See Southwestern Bell Tel.,
LP v. City of Houston, 529 F.3d 257, 263 (5th Cir. 2008) (parties not entitled to
discovery prior to district court’s Rule 12(b)(6) ruling).

Furthermore, the

district court did not abuse its discretion when it denied Chatmon’s motions
for appointment of counsel as Chatmon’s claims were not complex and his
allegations failed to show a probability of success on his claims. See 28 U.S.C.
§ 1915(e)(1); 42 U.S.C. § 2000(e)-5(f)(1); Salmon v. Corpus Christi Indep. Sch.
Dist., 911 F.2d 1165, 1166 (5th Cir. 1990); Gonzalez v. Carlin, 907 F.2d 573,
579–80 (5th Cir. 1990); Ulmer v. Chancellor, 691 F.2d 209, 212–13 (5th Cir.
1982).
Thus, Chatmon has failed to show that he will raise a nonfrivolous issue
on appeal. See Howard, 707 F.2d at 220. Accordingly, his IFP motion is
DENIED. Additionally, because this appeal is frivolous, it is DISMISSED.
5TH CIR. R. 42.2.

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