Silver v. Toyota Motor Manufacturing, Texas, Inc.

Filing 18

REPORT AND RECOMMENDATIONS re 12 Motion to proceed In Forma Pauperis on Appeal filed by Frederick Omoyuma Silver. The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a filing user with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Signed by Judge Elizabeth S. Chestney. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
FREDERICK OMOYUMA SILVER,
Plaintiff,
vs.
TOYOTA MOTOR MANUFACTURING,
TEXAS, INC., (TMMTX);
Defendant.

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SA-19-MC-01397-DAE

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge David A. Ezra:
This Report and Recommendation concerns Plaintiff’s Application to Proceed In Forma
Pauperis on Appeal [#12]. This motion was referred to the undersigned on March 5, 2020. The
undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, it is recommended that Plaintiff’s motion be denied.
I. Analysis
On April 18, 2019, Plaintiff was enjoined from filing any civil suit in the San Antonio
Division of the Western District of Texas without first seeking leave and obtaining permission
from a district judge in this district. See Silver v. Bemporad, No. 19-cv-284-XR (Doc. #15). On
February 28, 2020, the District Court adopted the undersigned’s report and recommendation and
denied Plaintiff’s motion to file a new civil action [#10]. Plaintiff filed his notice of appeal of
that order on March 3, 2020, along with his motion to proceed in forma pauperis (“IFP”) in that
appeal.
The process of seeking leave to proceed IFP on appeal is governed by Rule 24 of the
Federal Rules of Appellate Procedure and 28 U.S.C. § 1915(a)(3). According to Rule 24, a party
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to a district court action who desires to proceed IFP on appeal must file a motion in the district
court.1 Fed. R. App. P. 24(a). The movant is required to attach an affidavit to the motion that:
shows in detail the movant’s inability to pay the appeal costs and fees; claims an entitlement to
redress; and states the issues the movant intends to present on appeal. Id. at 24(a)(1).
Section 1915(a)(3) provides that “[a]n appeal may not be taken in forma pauperis if the
trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). An
appeal is taken in good faith under Section 1915(a)(3) if a litigant seeks appellate review of any
issue that is not frivolous. Howard v. King, 107 F.2d 215, 220 (5th Cir. 1983). Accordingly, in
addition to demonstrating that his financial condition qualifies him to proceed under the IFP
statue, a movant must also demonstrate that his appeal involves nonfrivolous issues. Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982).
The affidavit Plaintiff filed with the Court explained his inability to pay the costs
associated with his appeal. But the affidavit did not inform the Court of the issues Plaintiff
intends to appeal or why he is entitled to redress. The undersigned therefore issued a show cause
order on March 9, 2020, directing Plaintiff to demonstrate a nonfrivolous basis for his appeal. In
response to the Order, Plaintiff filed a Motion to Set a Hearing Date [#15], requesting a hearing
to review this case. Plaintiff also filed two additional responses to the Order [#16, #17], in which
Plaintiff states that he believes Defendant breached its contract with Plaintiff when Plaintiff did

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The undersigned notes that Plaintiff did not seek to proceed IFP in the underlying
district court action, as this case was a miscellaneous case opened to determine whether Plaintiff
would be permitted to file a civil action in this Court. Therefore, the provisions of Rule 24(a)(3),
which permits a party already obtaining IFP status to proceed on appeal “without further
authorization,” do not apply.

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not receive benefits from his fully vested 401(k) retirement plan upon the termination of his
employment.
The undersigned will recommend that Plaintiff’s motion to proceed IFP on appeal be
denied. The only matter currently before the Court is whether Plaintiff’s motion to proceed
without paying court costs on appeal should be granted. Rule 24(a) requires Plaintiff establish a
non-frivolous basis for his appeal, along with indigency, to be allowed to proceed without paying
the cost of filing an appeal with the Fifth Circuit. Plaintiff states that he is appealing the District
Court’s order adopting the undersigned’s report and recommendation with respect to his claim
against Defendant for the improper withholding of his retirement funds. The undersigned and
the District Court both agreed that Plaintiff’s proposed Complaint did not include sufficient
allegations to state a plausible claim under ERISA for the improper withholding of his retirement
funds. Plaintiff now states that the claim is for breach of contract. The undersigned reiterates
that based on the proposed Complaint before the Court, Plaintiff’s claim under ERISA or for
breach of contract is not supported by sufficient allegations. Accordingly, Plaintiff has not
advanced a nonfrivolous basis for his appeal and should not be permitted to proceed IFP on
appeal. The denial of Plaintiff’s motion to proceed IFP on appeal does not bar Plaintiff from
pursuing his appeal. If Plaintiff desires to appeal the District Court’s Order, he should simply be
required to pay the costs associated with the appeal.
II. Conclusion and Recommendation
Having considered the record before the Court, the undersigned recommends that
Plaintiff’s Application to Proceed In Forma Pauperis on Appeal [#12] be DENIED.

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undersigned will leave the Motion to Set a Hearing Date [#15] pending for the District Court’s
disposition, as the hearing is requested before Judge Ezra.

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III. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified
mail, return receipt requested. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file
the objections with the Clerk of Court and serve the objections on all other parties. A party filing
objections must specifically identify those findings, conclusions or recommendations to which
objections are being made and the basis for such objections; the district court need not consider
frivolous, conclusive or general objections. A party’s failure to file written objections to the
proposed findings, conclusions and recommendations contained in this report shall bar the party
from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985);
Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file
timely written objections to the proposed findings, conclusions and recommendations contained
in this report and recommendation shall bar the aggrieved party, except upon grounds of plain
error, from attacking on appeal the un-objected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996) (en banc).
SIGNED this 25th day of March, 2020.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE
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