Jones v. The United States Postal Service
Filing
53
ORDER entered DENYING 49 MOTION for Continuance of Transcript Deadlines, DENYING 52 MOTION for Leave to Appeal in forma pauperis, DENYING 41 MOTION for Leave to Appeal.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FELICIA NICOLE JONES,
Plaintiff,
vs.
UNITED STATES POSTAL SERVICE,
Defendants.
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CIVIL ACTION NO. H-11-566
ORDER
Felicia Jones moves for leave to proceed in forma pauperis on appeal, without prepayment
of fees. (Docket Entries No. 41, 52).1 Jones seeks reinstatement and $100 million in damages for
her 1999 termination from her postal service job and her inability to be rehired in 2000. After a
formal hearing on these claims in 2003, the Administrative Judge found that Jones had failed to
establish a prima facie case of race, sex, physical disability, or retaliation discrimination and that
the postal service had articulated legitimate reasons for its actions based on problems with her work
performance. Jones appealed to the U.S. Equal Employment Opportunity Commission’s Office of
Federal Operations, which affirmed the AJ’s decision in February 2004. Jones was informed that
she had 90 days to file a civil action. In November 2008, she filed another informal complaint with
the USPS’s EEO Field Operations, based on the same allegations. Despite being told that she could
not proceed in that fashion, she filed a Notice of Appeal/Petition to the Commission in January and
in June 2009. The Commission responded on August 12, 2009 that it “does not process civil
1
This court construes Jones’s “Motion to Appeal,” filed on June 27, 2011 (Docket Entry No. 41), as a motion for leave
to appeal in forma pauperis.
1
actions” and directed her to the United States District Court’s website. In September 2009, Jones
filed an employment discrimination suit in the United States District Court, Southern District of
Texas, Case Number 4:09-mc-00465, raising the same allegations originally contained in her July
14, 2000 formal complaint of discrimination. The judge denied in forma pauperis status.
Jones filed this case almost two years later, raising the same allegations. After a hearing, this
court dismissed the case because it is time-barred. Jones now seeks to appeal in forma pauperis.
Rule 24 of the Federal Rules of Appellate Procedure provides:
A party who was permitted to proceed in forma pauperis in the
district-court action, . . . may proceed on appeal in forma pauperis
without further authorization, unless:
(A) the district court–before or after the notice of appeal is
filed–certifies that the appeal is not taken in good faith or finds that
the party is not otherwise entitled to proceed in forma pauperis and
states its reasons for the certification or finding.
FED. R. APP. P. 24(a)(3) (emphasis added). In deciding whether to grant a party leave to appeal in
forma pauperis, a district court considers whether the party “seeks appellate review of any issue ‘not
frivolous.’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted). Finding that
appeal would be frivolous, this court certifies that the appeal is not taken in good faith and that Jones
should not be allowed to proceed on appeal in forma pauperis. Her motions, Docket Entries No.
41 and 52, are denied. If Jones disagrees with this court’s denial of her motion to proceed on appeal
in forma pauperis and the finding that the appeal is frivolous, she may petition the Fifth Circuit for
a review of the decision.2
2
Jones has filed her appellate brief in this court. (Docket Entry 50). Because this court cannot grant appellate relief,
Jones must file her brief with the Court of Appeals for the Fifth Circuit.
2
Jones also seeks a copy of the transcript at government expense. Because Jones has not
identified a nonfrivolous issue for appeal or set forth factual allegations and legal arguments to
demonstrate that she will raise nonfrivolous issues on appeal, her IFP motion has been denied. She
is not entitled to transcripts at government expense because she has not been granted leave to
proceed IFP and she has not shown why she needs the transcript. See 28 U.S.C. § 753(f); Harvey
v. Andrist, 754 F.2d 569, 571 (5th Cir.1985). Accordingly, her motion for transcripts at government
expense and for extension of transcript deadlines, (Docket Entry No. 44, 49), is also denied.
SIGNED on September 6, 2011, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge
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