Reser v. Martin et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JAMES MICHAEL RESER,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:25-CV-00123
JAMIE MAGDALINE MARTIN, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
Plaintiff James Michael Reser, proceeding pro se in this 42 U.S.C. § 1983 civil
rights action, seeks to appeal in forma pauperis, to which Defendant Daniel Gamache has
responded. (D.E. 69 and D.E. 71). The undersigned has considered Plaintiff’s Motion and
recommends Plaintiff has the ability to pay the full filing fee, for the reasons discussed
below. Therefore, the undersigned RECOMMENDS Plaintiff’s Application to Proceed
In Forma Pauperis on Appeal be DENIED. (D.E. 69). Also pending is Plaintiff’s Rule
62(b) Motion to Stay Enforcement of Judgment to which Defendant Gamache has
responded. (D.E. 70 and D.E. 72). The undersigned RECOMMENDS this Motion be
DENIED as final judgment has not yet been entered in this case. (D.E. 70).
On January 9, 2026, Plaintiff’s claims were dismissed and on June 5, 2026, he was
found liable to pay Defendant Gamache $14,160 in attorney’s fees. (D.E. 57; D.E. 62;
D.E. 63 and D.E. 67). On June 24, 2026, Plaintiff filed a Notice of Appeal, appealing
United States District Court
Southern District of Texas
ENTERED
July 01, 2026
Nathan Ochsner, Clerk
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solely the Memorandum and Recommendation and Order Adopting the M & R regarding
the award of attorney’s fees. (D.E. 68). To date, no final judgment has yet been entered.
Rather than pay the appellate filing fee, Plaintiff argues he has “limited financial
resources…with no disposable income and no ability to pay the fee without foregoing basic
necessities.” (D.E. 69, Page 1). However, upon review of the attached affidavit, the
undersigned recommends these arguments are without merit. The decision whether to
grant or deny an IFP application lies within the sound discretion of the Court. Timms v.
Douthit, No. 5:20-cv-67-M-BQ, 2020 WL 3410464, at *3 (N.D. Tex. June 22, 2020)
(“Proceeding IFP in a civil case is a privilege, not a right.”) (citation omitted). A party
“need not be absolutely destitute to qualify for in forma pauperis status…Such a benefit is
available when one cannot pay or give security for such costs and still be able to provide
himself and his dependents with the necessities of life.” Allstate Ins. Co. v. Toshner, No.
1:24-cv-27-RP, 2026 WL 1008124, at *2 (W.D. Tex. Apr. 2, 2026) (“The district court
maintains the discretion to grant or deny a motion to proceed in forma pauperis.”) (citations
omitted). Reviewing the evidence in the record, Plaintiff does not meet this standard.
Plaintiff paid the full filing fee when initially filing this case. Further, in his affidavit in
support of the pending Motion to Proceed In Forma Pauperis, Plaintiff states he receives
almost $6,000 per month in income from “Disability/VA benefits” and “Other sources”
and lists no dependents. (D.E. 69, Pages 4 and 6). It also appears Plaintiff recently
purchased a 2026 vehicle and owns a motorcycle. (D.E. 69, Page 5). Additionally, it also
appears he recently purchased a home in 2024 which Plaintiff values at $252,540 and
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indicates he owes $249,458. An online search for the address listed indicates the value of
the home is between $274,000 to $290,000.00. Therefore, the undersigned
RECOMMENDS Plaintiff’s Application to Proceed In Forma Pauperis be DENIED as
he has the ability to pay the $605.00 appellate filing fee. (D.E. 69).
Plaintiff further requests, pursuant to Federal Rule of Civil Procedure 62(b), that the
Court stay enforcement of the attorney’s fees award pending the resolution of his appeal.
(D.E. 70). Plaintiff argues he is of limited financial means and “[i]mmediate enforcement
of a $14,160.00 fee judgment would cause severe financial hardship and irreparable harm
that cannot be remedied if the Fifth Circuit reverse or modifies the award.” (D.E. 70, Page
2). Defendant Gamache responds the request to stay should be denied because Plaintiff
“offers no supersedeas bond and proposed no alternative security of any kind” as required
by Rule 62(b). (D.E. 72). Rule 62(b) of the Federal Rules of Civil Procedure permits a
party seeking to stay the execution of a judgment pending appeal to post a bond or other
security to secure the payment of the judgment to the judgment creditor “[a]t any time after
judgment is entered.” However, to date, no final judgment has been entered. Therefore,
the undersigned RECOMMENDS this Motion be DENIED without prejudice. (D.E.
70).
ORDERED on July 1, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to 28 U.S.C. §
636(b)(1)(c); Rule 72(b) of the Federal Rules of Civil Procedure; and Article IV, General
Order No. 2002-13, United States District Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendations in a Magistrate Judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the District Court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
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