Dante v. Power Home Remodeling Group, LLC, et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RUBEN LANDON DANTE,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:24-cv-3099
POWER HOME REMODELING
GROUP LLC, DBA PHRG LLC,
POWER HRG,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending before the Court1 is Plaintiff Ruben Landon Dante’s (“Plaintiff”)
Motion for Leave to Appeal In Forma Pauperis (“IFP”) (ECF No. 68). 	For the
reasons 	below, 	the 	Court 	RECOMMENDS 	Plaintiff’s 	motion 	(id.) 	be
DENIED.
I. 	Background
This is an employment discrimination case, arising out of Plaintiff’s
employment with Defendant Power Home Remodeling Group, LLC, DBA
PHRG LLC, Power HRG’s (“Defendant”).
On April 23, 2024, Plaintiff filed his Original Petition against Defendant
in the 270th Judicial District Court of Harris County, Texas, Cause No. 2024-
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 Nos. 5, 60).
United States District Court
Southern District of Texas
ENTERED
June 26, 2026
Nathan Ochsner, Clerk
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26260. 	(ECF No. 1-2 at 1–22). 	Plaintiff filed his First Amended Original
Petition (“Amended 	Petition”) on May 	1, 2024. 	(ECF 	No. 1-3 at 1–47).
Plaintiff’s Amended Petition asserts 	the following claims: (1) Fraudulent
Inducement (id. at 26–28); (2) Violations of the Fair Labor Standards Act
(“FLSA”) (id. at 28–32, 37–40); (3) Sexual Harassment and Hostile Work
Environment (id. at 32–34); (4) Claims for alleged “Individual Liability and
“Respondeat Superior” (id. at 34–35); (5) Retaliation under the FLSA (id. at
35–36); (6) Retaliation under Title VII (id. at 36); (7) Race Discrimination
under Section 1981 (id. at 32–33, 37); (8) Pain and Suffering, Inconvenience,
Mental 	Anguish, 	and 	Loss 	of 	Enjoyment 	of 	Life 	(id. 	at 	41–42); 	and 	(9)
Recordkeeping (id. at 42–45). 	On August 20, 2024, Defendant removed the
case to this Court. (See ECF No. 1).
On June 25, 2026, Defendant moved for summary judgment on all of
Plaintiff’s claims. 	(See ECF No. 42). 	On October 22, 2025, the Undersigned
recommended Defendant’s Motion for Summary Judgment (id.) be granted.
(ECF 	No. 	48). 	On 	November 	7, 	2025, 	the 	District 	Judge 	adopted 	the
Undersigned’s Memorandum and Recommendation. 	(ECF No. 51). 	A Final
Judgment was entered the same day, dismissing with prejudice Plaintiff’s
claims against Defendant. (ECF No. 52).
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On December 3, 2025, Plaintiff filed a Motion for Reconsideration and
Continuation of Discovery. (ECF No. 54). On May 18, 2026, the Undersigned
recommended 	Plaintiff’s 	Motion 	for 	Reconsideration 	and 	Continuation 	of
Discovery be denied. (ECF No. 61). On June 1, 2026, Plaintiff filed objections
and a Notice of Appeal. (ECF Nos. 62–63). Two days later, the District Judge
adopted the Undersigned’s Memorandum and Recommendation. (ECF No. 66).
Plaintiff has now filed the instant motion to proceed IFP on appeal. (ECF
No. 68).
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.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).
2 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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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)).
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. 68).
Plaintiff states that his only source of income is approximately $5,000 per
month from being self-employed, and that he has approximately $400 in cash
or savings and monthly expenses of approximately $5,200. 	(ECF No. 68-1 at
1–4). The Court finds these representations are sufficient to suggest financial
eligibility for IFP status.
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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.’”).
Here, Plaintiff has failed to identify any non-frivolous issue for appeal
because he repeats arguments regarding discovery and remand that have
already been considered and denied by the District Court. 	As set forth in the
Court’s prior Memorandum and Recommendation (ECF No. 48), some of
Plaintiff’s claims were dismissed while summary judgment was granted as to
the remaining claims. (See ECF No. 48 at 27). Plaintiff filed objections to the
Court’s 	Memorandum 	and 	Recommendation 	(ECF 	No. 	50), 	which 	were
reviewed and overruled by the District Judge (ECF No. 51). 	Plaintiff filed a
Motion for Reconsideration (ECF No. 54), which was considered and denied by
the Undersigned (ECF No. 61). 	Once again, Plaintiff filed objections to the
Court’s 	Memorandum 	and 	Recommendation 	(ECF 	No. 	62), 	which 	were
reviewed and overruled by the District Judge (ECF No. 66).
In light of this record, any appeal would be based on arguments that
have already been considered and rejected. Further, the Court does not believe
that Plaintiff’s arguments have merit or would impact the outcome of this case.
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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, Plaintiff has 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 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. 68). If Plaintiff wishes to
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proceed with his appeal, Plaintiff 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 June 26, 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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