Robinson v. Grocers Supply

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DARRYL ROBINSON,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-62
GROCERS SUPPLY,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Plaintiff Darryl Robinson’s (“Plaintiff”)
Application to Proceed in District Court without Prepaying Fees or Costs (ECF
No. 31), which the Court construes as a motion to proceed in forma pauperis
(“IFP”) 	on 	appeal. 	For 	the 	reasons 	below, 	the 	Court 	RECOMMENDS
Plaintiff’s motion (id.) be DENIED.
I. 	Background
On December 2, 2025, the Undersigned entered a Memorandum and
Recommendation recommending Defendant’s Motion to Dismiss be granted
and Plaintiff’s case be dismissed with prejudice. (ECF No. 28). 	No objections
were filed. 	On February 20, 2026, the District Judge entered an Order
1 On April 29, 2025, this case was referred to the Undersigned for all purposes
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF
No. 24).
United States District Court
Southern District of Texas
ENTERED
March 25, 2026
Nathan Ochsner, Clerk
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adopting 	the 	Memorandum and 	Recommendation, 	thereby 	dismissing 	all
claims in this action. 	(ECF No. 29). 	Plaintiff filed his IFP motion (ECF No.
31) and Notice of Appeal of the Court’s Order2 (ECF No. 30) on March 20, 2026.
II. 	Legal Standard
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 to a district court action who desires to proceed
IFP on appeal must file a motion in the district court.3 	F ED. R. A PP . 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.
2 “In a civil case, a notice of appeal encompasses the final judgment, whether or not
that judgment is set out in a separate document under Federal Rule of Civil Procedure 58, if
the notice designates: (A) an order that adjudicates all remaining claims and the rights and
liabilities of all remaining parties; or (B) an order described in Rule 4(a)(4)(A).” FED . R. APP.
P. 3(c)(5).
3 The Undersigned notes that Plaintiff did not seek to proceed IFP in the underlying
district court action. 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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Howard v. King, 707 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.” 	Marsh v. U.S. Bank, N.A. as Tr. to LaSalle Bank Nat’l
Ass’n, No. 17-cv-00847, 2018 WL 5733193, at *1 (W.D. Tex. Sep. 24, 2018),
report and recommendation adopted, No. 17-cv-847, 2018 WL 7283277 (W.D.
Tex. Nov. 6, 2018) (citing Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982)).
III. 	Discussion
Plaintiff’s application to proceed IFP on appeal demonstrates that he
likely lacks the financial resources to prepay the costs of appeal. (ECF No. 31).
Plaintiff states that his only source of income is approximately $2,777 per
month in worker’s compensation benefits, and that he has approximately $200
in cash or savings, monthly expenses of approximately $2,400, and multiple
dependents. 	(ECF No. 31 at 1–2). 	The Court finds these representations are
sufficient to suggest financial eligibility for IFP status.
However, financial eligibility alone is insufficient. 	As discussed above,
Plaintiff must also demonstrate that his appeal is taken in good faith—that is,
it at least raises one non-frivolous issue. 28 U.S.C. § 1915(a)(3); Howard, 707
F.2d at 220 (“‘Good faith’ is demonstrated when a party seeks appellate review
of any issue ‘not frivolous.’”).
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Here, Plaintiff has failed to identify any issue he intends to raise on
appeal. 	His Notice of Appeal merely states he seeks to appeal “the District
Court’s decision,” and he attaches the docket sheet and the District Judge’s
Order 	adopting 	the 	Memorandum 	and 	Recommendation. 	(ECF 	No. 	30).
Plaintiff provides no explanation of the basis for his appeal, nor does he
identify any alleged error in the Court’s analysis. This failure alone warrants
denial of Plaintiff’s request to proceed IFP on appeal. 	See Marsh, 2018 WL
5733193, at *1–2 (recommending denial of IFP status where plaintiffs failed to
identify issues for appeal or demonstrate entitlement to relief).
Additionally, even construing Plaintiff’s filings liberally, the record does
not reflect the existence of any non-frivolous issue for appeal. 	As set forth in
the Court’s prior Memorandum and Recommendation, Plaintiff’s claims were
dismissed with prejudice because they were time-barred under Title VII’s
ninety-day limitations period. 	(ECF No. 28). 	The Court concluded that
Plaintiff received his right-to-sue notice on October 7, 2024, and that his
complaint—filed on January 7, 2025—was untimely. (Id. at 9–11). The Court
further determined that Plaintiff failed to allege any facts that would support
equitable tolling of the limitations period. (Id. at 11–12). Plaintiff did not file
objections to the Memorandum and Recommendation. The District Judge then
adopted the Court’s findings after reviewing for plain error. (ECF No. 29).
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In light of this record, any appeal would be based on arguments that
have already been considered and rejected or that are foreclosed by well-
established law regarding the strict enforcement of Title VII’s filing deadline.
See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 379–80 (5th Cir. 2002)
(“This requirement to file a lawsuit within the ninety-day limitation period is
strictly construed. . . . [Plaintiff] therefore had until January 4, 2001 to file his
complaint. Because [Plaintiff] did not file his complaint until January 5, 2001,
one day beyond the ninety-day period, the district court properly dismissed his
claims as untimely.”). 	Plaintiff has not identified, and the Court cannot
discern, any non-frivolous basis to challenge the dismissal.
Accordingly, the Court concludes that Plaintiff’s appeal is not taken in
good faith under § 1915(a)(3).
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS that the District
Court certify that Plaintiff’s appeal is not taken in good faith and DENY
Plaintiff’s motion to proceed IFP on appeal (ECF No. 31). If Plaintiff wishes to
proceed with his appeal, Plaintiff may either pay the filing fee or submit a
motion in the court of appeals pursuant to F ED. R. A PP . P. 24(a)(5).4
4 The Federal Rules of Appellate Procedure and the Fifth Circuit Rules are available
on 	the 	Fifth 	Circuit 	website 	under 	the 	“Rules 	& 	Procedures” 	tab, 	at
https://www.ca5.uscourts.gov/. 	Plaintiff is encouraged to consult the Rules in advance of
future filings.
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The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on March 25, 2026.
Richard W. Bennett
United States Magistrate Judge
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