Greene et al v. MV Transportation

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CEDRIC GREENE AND
VALERIE STEPHEN,
Plaintiffs,
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v. 	CIVIL ACTION NO. 4:26-cv-2445
MV TRANSPORTATION,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending 	before 	the 	Court1 is 	Plaintiffs 	Cedric 	Greene 	and 	Valerie
Stephen’s (“Plaintiffs”) Motion for Leave to Appeal In Forma Pauperis (“IFP”)
(ECF No. 17). 	For the reasons below, the Court RECOMMENDS Plaintiffs’
motion (id.) be DENIED.
I. 	Background
On March 25, 2025, Plaintiffs filed a Petition for Leave to Proceed and
Demand Relief (ECF No. 1). Plaintiffs’ filing begins by stating that “the cause
of action didn’t occur within the boundaries of the venue’s geographical area.”
(Id. at 2). Plaintiffs acknowledge that they both live outside of Texas. (Id.). In
fact, one of the plaintiffs states he is “listed as a bad faith litigant in the Dallas
1 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. 5).
United States District Court
Southern District of Texas
ENTERED
July 15, 2026
Nathan Ochsner, Clerk
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federal venue.” (Id.). Plaintiffs explain that they intended to pursue this case
in Arkansas but that it was transferred to California, where it was ultimately
dismissed. 	(Id. at 2, 12). 	Plaintiffs do not provide information regarding the
factual background of their case or their causes of action.
On April 17, 2026, the Undersigned recommended the case be dismissed
without prejudice for lack of subject matter jurisdiction because Plaintiffs’
filing fails to establish a basis for federal subject matter jurisdiction under
either 28 U.S.C. § 1331 governing federal question jurisdiction or 28 U.S.C. §
1333 governing diversity of citizenship jurisdiction. (ECF No. 9 at 3). On June
1, 2026, the District Judge adopted the Undersigned’s Memorandum and
Recommendation. (ECF No. 11). A Final Judgment was entered the same day.
(ECF No. 12).
On June 22, 2026, Plaintiffs filed a Notice of Appeal. 	(ECF No. 13).
Plaintiffs have now filed the instant motion to proceed IFP on appeal. 	(ECF
No. 17).
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
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IFP on appeal must file a motion in the district court.2 	FED. 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.
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)).
2 The Undersigned notes that Plaintiffs did not 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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III. 	Discussion
Plaintiffs’ application to proceed IFP on appeal demonstrates that they
likely lack the financial resources to prepay the costs of appeal. (ECF No. 17).
Plaintiffs state they have no source of income, one of them receives monthly
welfare cash benefits and SNAP benefits, and that they have no money in cash
or savings. 	(Id. 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,
Plaintiffs must also demonstrate that their 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.’”).
Here, Plaintiffs have failed to comply with Federal Rule of Appellate
Procedure 24(a)(1), which requires Plaintiffs to attach an affidavit to their
motion that “claims an entitlement to redress” and “states the issues that the
party intends to present on appeal.” 	However, in Plaintiffs’ Notice of Appeal,
it states “the Plaintiff’s [sic] asked for a venue change of the civil matter for
just cause basis, but the Houston Division didn’t wish to compromise. 	That’s
the basis of the Plaintiff’s [sic] appeal request . . . .” (ECF No. 13 at 2).
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In light of this, the Court does not believe Plaintiffs’ arguments would
have merit or impact the outcome of this case. 	See Badaiki v. Cameron Int’l
Corp., No. 4:19-cv-371, 2021 WL 12301122, at *2 (S.D. Tex. Dec. 20, 2021)
(finding an appeal of issues that the Court has no reason to believe have merit
or would impact the outcome of the case are frivolous). As such, Plaintiffs have
not 	identified, 	and 	the 	Court 	cannot 	discern, 	any 	non-frivolous 	basis 	to
challenge the dismissal. See Braud v. Cain, 354 F. App’x 72, 73 (5th Cir. 2009)
(dismissing an appeal as frivolous where plaintiff repeats claims that formed
the basis of his complaint without identifying a new basis or argument for
defendant’s liability); see also Garcia v. Filley, No. 21-10614, 2022 WL 622332,
at *1 (5th Cir. Mar. 3, 2022) (“In his IFP pleadings, Garcia merely repeats his
claims 	that 	the 	defendant-judge 	is 	corrupt 	and 	biased; 	he 	does 	not
meaningfully challenge the district court’s reasons for the dismissal of his
complaint or its certification that his appeal would not be in good faith.”).
Accordingly, the Court concludes that Plaintiffs’ 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 Plaintiffs’ appeal is not taken in good faith and DENY
Plaintiffs’ motion to proceed IFP on appeal (ECF No. 17). If Plaintiffs wish to
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proceed with their appeal, Plaintiffs may either pay the filing fee or submit a
motion in the court of appeals pursuant to FED. R. A PP . P. 24(a)(5).3
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 July 15, 2026.
Richard W. Bennett
United States Magistrate Judge
3 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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