Esquivel v. Kendrick et al

Filing 75

ORDER GRANTING 74 Motion to proceed In Forma Pauperis on Appeal. Signed by Judge Elizabeth S. Chestney. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ROBERT J. ESQUIVEL,
Plaintiff,
vs.
LOGAN EASTBURN, DPS, TROOPER
#14720; RYAN BIBBY, DPS, TROOPER
#14593; NICHOLAS WINGATE, DPS,
TROOPER #13157; AND TEXAS
HIGHWAY PATROL DEPARTMENT OF
PUBLIC SAFETY,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§

SA-20-CV-00377-OLG

ORDER
This order concerns Plaintiff’s Pro Se Motion for Permission to Proceed In Forma
Pauperis on Appeal [#74], which was referred to the undersigned for disposition pursuant to
Western District of Texas Local Rule CV-72 and Appendix C on November 9, 2022. The
undersigned has authority to enter this order pursuant to 28 U.S.C. § 636(b)(1)(A). For the
reasons set forth below, the Court will grant the motion.
The standards governing in forma pauperis motions are set forth in 28 U.S.C. § 1915(a).
In connection with requests to proceed in forma pauperis on appeal, 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). Section 1915 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). 28 U.S.C. § 1915(a)(3). An appeal is taken

1

in good faith if it presents an arguable issue on the merits and therefore is not frivolous.
Crawford v. Child Protective Servs., 834 Fed. App’x 100, 100 (5th Cir. 2021) (per curiam).
Plaintiff was previously granted leave to proceed in forma pauperis in this case.
Accordingly, Rule 24(a)(3) of the Federal Rules of Appellate Procedure also applies, which
provides that “[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 . . . the
district court . . . 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 in writing its reasons for the
certification or finding.” Fed. R. App. P. 24(a)(3).
Because Plaintiff was previously afforded in forma pauperis status, he is not required to
seek authorization of the Court before proceeding in forma pauperis on appeal. However,
because Plaintiff filed a motion, the Court has considered it. Plaintiff has provided the Court
with a financial affidavit indicating that although he is employed, his monthly expenses exceed
his income. (Mtn. [#74].) Additionally, Plaintiff’s Notice of Appeal apprises the Court of the
orders and issues he is seeking to appeal, specifically the Court’s three dispositive orders on
Defendants’ motions to dismiss and motions for summary judgment. (Report & Rec. [#22],
Order Adopting Report & Rec. [#27]; Report & Rec. [#35], Order Adopting Report & Rec.
[#44]; Report & Rec. [#63], Order Adopting Report & Rec. [#72].)
The Court finds that Plaintiff does not have the financial means to pay the filing fee on
appeal. Additionally, Plaintiff has informed the Court of the subject of his appeal. Finally, the
Court finds that Plaintiff’s appeal is taken in good faith. The Court will therefore grant the
motion.

2

IT IS HEREBY ORDERED that Plaintiff’s Application to Proceed In Forma Pauperis
on Appeal [#12] is GRANTED.
SIGNED this 18th day of November, 2022.

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

3