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Decker v. Routledge ( 2022 )


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  • Case: 20-40830      Document: 00516299689         Page: 1     Date Filed: 04/28/2022
United States Court of Appeals
for the Fifth Circuit                               United States Court of Appeals
Fifth Circuit
FILED
April 28, 2022
No. 20-40830
Summary Calendar                         Lyle W. Cayce
Clerk
Alan R. Decker,
Plaintiff—Appellant,
versus
James Routledge; MedStar Surgical Company; OEM
Medical Solutions, L.L.C.; Ted Honeywell,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:20-MC-12
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Alan R. Decker seeks leave to proceed in forma pauperis (IFP) to
appeal the district court’s dismissal of his third diversity action arising from
a purported 2004 conversion of his business. The district court concluded
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-40830      Document: 00516299689            Page: 2    Date Filed: 04/28/2022
No. 20-40830
that Decker’s claims were barred by the applicable limitations periods and
alternatively that he had failed to establish his allegations of fraud, intentional
infliction of emotional distress, and defamation. By moving in this court to
proceed IFP, Decker is challenging the district court’s certification that any
appeal would not be taken in good faith because he had not shown that he will
present a nonfrivolous appellate issue. See Baugh v. Taylor,
    117 F.3d 197
    , 202
(5th Cir. 1997); Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982).
Before this court, Decker argues that the district court misinterpreted
the facts establishing that he was in a coma for years, which prevented him
from learning of the conversion of his business and tolled the limitations
periods, and that the court abused its discretion in denying his motion for
reconsideration. He has not established that he could not reasonably have
discovered the factual predicate of his claims earlier. See Lozada v. Farrall
& Blackwell Agency, Inc.,
    323 S.W.3d 278
    , 289 (Tex. App.—El Paso 2010, no
pet.). Moreover, the defendants’ alleged ongoing possession of Decker’s
business does not constitute a continuing tort. See First Gen. Realty Corp. v.
Maryland Cas. Co.,
    981 S.W.2d 495
    , 501-02 (Tex. App.—Austin 1998, pet.
denied). Accordingly, Decker has not shown that the district court abused
its discretion in dismissing his complaint as frivolous and in denying his
motion for reconsideration. See Newsome v. E.E.O.C.,
    301 F.3d 227
    , 231 (5th
Cir. 2002); Dearmore v. City of Garland,
    519 F.3d 517
    , 520 (5th Cir. 2008).
The appeal is without arguable merit and is thus frivolous. See Howard
v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Accordingly, Decker’s motion to
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh,
    117 F.3d at 
    202 n.24; 5th Cir. R. 42.2.
2