Garcia-Perez v. Masters et al

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Case 7:23-cv-00137
Document 42 Filed 12/08/25 in TXSD
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United States District Court Southern District of Texas
ENTERED December 08, 2025 Nathan Ochsner, Clerk
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION
ABEL GARCIA-PEREZ,
Plaintiff,
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VS.
§ CIVIL ACTION NO. 7:23-CV-137
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JAIME MASTERS, et al.,
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Defendants.
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REPORT AND RECOMMENDATION
Plaintiff Abel Garcia-Perez, a state prisoner proceeding pro se, initiated this civil action against Defendants alleging various violations of his civil rights, pursuant to 42 U.S.C. § 1983. Plaintiff's claims have been denied, and this civil case has been closed. Plaintiff now seeks to appeal the dismissal of his case, and pending before the Court is his application to proceed on appeal in forma pauperis. (Docket No. 40.)
As discussed below, because the undersigned finds that Plaintiff's appeal is not taken in good faith, it is recommended that his application to proceed in forma pauperis on appeal be denied.
I. ANALYSIS
As noted, on April 21, 2023, Plaintiff initiated this action seeking to assert various civil rights claims pursuant to 42 U.S.C. § 1983. (Docket No. 1.) Plaintiff alleges that the defendants violated his civil rights by unlawfully incarcerating him, coercing his stepdaughters to make an outcry of abuse against him, separating his family, and wrongfully prosecuting him. (Id. at 4-6.) He further alleges that the defendants have "willingly and intentionally cause[d] severe physical,
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO
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Case 7:23-cv-00137 Document 42 Filed 12/08/25 in TXSD
psychological, and emotional trauma" to him.1 (Id. at 7.) However, after referral from the District Court, the undersigned entered a report recommending the denial of all of Plaintiff's claims, as well as the dismissal of this civil action. (Docket No. 32.)
"In both prisoner and nonprisoner litigation, a district court may deny a motion for leave to appeal IFP by certifying that the appeal is not taken in good faith and by providing written reasons for the certification." Champluvier v. Couch, 309 F. App'x 902, 903 (5th Cir. 2009) (citing Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997)). "Usually, a district court certified that an appeal was not taken in good faith when the underlying claims of the IFP plaintiff were entirely frivolous and had no possibility of success." Baugh, 117 F.3d at 201-02. The determination of whether good faith exists "is limited to whether the appeal involves legal points arguable on the merits (and therefore not frivolous)." United States v. Moore, 858 F. App'x 172, 172 (5th Cir. 2021) (per curiam) (quoting Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted)). A district court has discretion in deciding whether to grant or deny a request to proceed IFP. See Williams v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982) (per curiam) (citing Green v. Estelle, 649 F.2d 298, 302 (5th Cir. 1981)).
Just as in Champluvier, Plaintiff's "arguments are [largely] conclusional." See Champluvier, 309 F. App'x at 903. In fact, as the undersigned's report assessing Plaintiff's various claims makes clear, his allegations "are legally baseless, factually hollow, and/or wholly frivolous." (See Docket No. 32, at 2, 8-26.) Plaintiff did not object to the factual findings or legal conclusions in the report. Rather, he complains that he did not have "proper and adequate assistance of counsel to assist him
1 The undersigned provided a more thorough summary of the background in this case in the previous report, filed on September 3, 2025. (See Docket No. 32.)
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Case 7:23-cv-00137
Document 42 Filed 12/08/25 in TXSD
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in his case." (Docket No. 37.) In addition, he faults his legal short-comings in this case to the following circumstances of his incarceration:
· "he has been kept under lock-down";
· he is "unable to purchase stamped envelopes or writing material";
· he "has been on medical chain."
(Id.) He further asserts that he was not "afforded adequate extension of time to respond to the magistrate's recommendations." (Id.) To be clear, Plaintiff did not request an extension of time to respond to the report. Perhaps more importantly, Plaintiff makes no argument-and the undersigned has found none-that his purported appeal is taken in good faith, or that he has any non-frivolous issues to further litigate in this action.
Accordingly, it is recommended that the District Court deny Plaintiff's application to proceed on appeal in forma pauperis.2
II. CONCLUSION
For the foregoing reasons, the undersigned respectfully recommends that Plaintiff's application to proceed in forma pauperis on appeal (Docket No. 40) be DENIED.
NOTICE
The Clerk shall send a copy of this Report and Recommendation to the parties, who have fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file timely written
2 Of course, this recommendation does not prevent Plaintiff from seeking leave to appeal in forma pauperis directly from the Fifth Circuit Court of Appeals. See Champluvier, 309 F. App'x at 903 (the Fifth Circuit considered Plaintiff's "motion for leave to proceed IFP on appeal" after the district court denied it finding that the appeal was not taken in good faith); see also Baugh, 117 F.3d at 202 (the Fifth Circuit explaining the procedure for challenging a certification decision). Should Plaintiff choose this path, he must do so "within the time prescribed by Rule 4" of the Federal Rules of Appellate Procedure. Baugh, 117 F.3d at 202.
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Case 7:23-cv-00137 Document 42 Filed 12/08/25in TXSD Page 4of4

objections shall bar an aggrieved party from receiving a de novo review by the District Court on
an issue covered in this Report and, except upon grounds of plain error, from attacking on appeal
the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

DONE at McAllen, Texas on December 8, 2025.

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Nadia S. Medrano
UNITED STATES MAGISTRATE JUDGE