Barnes v. Walters ( 2023 )


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  • Case: 23-10255         Document: 00516980204             Page: 1      Date Filed: 11/27/2023
    United States Court of Appeals
    for the Fifth Circuit
    ____________
    United States Court of Appeals
    Fifth Circuit
    No. 23-10255
    Summary Calendar                                  FILED
    ____________                              November 27, 2023
    Lyle W. Cayce
    Stephen Barnes,                                                                     Clerk
    Plaintiff—Appellant,
    versus
    James Walters; Andre Salone; Stephen Holt; Dallas VA
    Medical Center,
    Defendants—Appellees.
    ______________________________
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:21-CV-3099
    ______________________________
    Before Smith, Southwick, and Wilson, Circuit Judges.
    Per Curiam: *
    Stephen Barnes, pro se plaintiff-appellant, moves for leave to proceed
    in forma pauperis (IFP) in his appeal of the district court’s dismissal of his
    civil complaint for failure to state a claim. See 
    28 U.S.C. § 1915
    (e)(2)(B)(ii).
    In his complaint and on appeal, he claimed that his employer—the Dallas
    Department of Veterans Administration Medical Center—and individuals
    _____________________
    *
    This opinion is not designated for publication. See 5th Cir. R. 47.5.
    Case: 23-10255      Document: 00516980204           Page: 2    Date Filed: 11/27/2023
    No. 23-10255
    who worked there engaged in age-based employment discrimination,
    retaliation, and wrongful termination against him pursuant to the Age
    Discrimination in Employment Act (ADEA), 
    29 U.S.C. §§ 621-634
    .
    To proceed IFP, Barnes must demonstrate financial eligibility and a
    nonfrivolous issue for appeal. See Jackson v. Dall. Police Dep’t, 
    811 F.2d 260
    ,
    261 (5th Cir. 1986). We review de novo a dismissal for failure to state a claim
    pursuant to § 1915(e)(2)(B)(ii). Harris v. Hegmann, 
    198 F.3d 153
    , 156 (5th
    Cir. 1999). A plaintiff fails to state a claim upon which relief can be granted
    when the claim does not contain “enough facts to state a claim to relief that
    is plausible on its face.” In re Katrina Canal Breaches Litig., 
    495 F.3d 191
    , 205
    (5th Cir. 2007) (internal quotation marks and citation omitted). “Where a
    complaint pleads facts that are merely consistent with a defendant’s liability,
    it stops short of the line between possibility and plausibility of entitlement to
    relief.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (internal quotation marks
    and citation omitted).
    With respect to his age discrimination claim, Barnes failed to allege
    his “qualifications for the promotions,” as well as “what the positions
    actually were and what the ages and qualifications were of those who were
    given promotions.” Norsworthy v. Hous. Indep. Sch. Dist., 
    70 F.4th 332
    , 337
    (5th Cir. 2023). As to the retaliation claim, he failed to “allege facts that
    could show a causal link between any alleged protected activities (such as
    filing grievances) and the alleged adverse actions (such as failures to
    promote).” 
    Id.
    Because Barnes has not demonstrated that his appeal involves “legal
    points arguable on their merits,” his motion to proceed IFP is DENIED,
    and his appeal is DISMISSED as frivolous. Howard v. King, 
    707 F.2d 215
    ,
    220 (5th Cir. 1983) (internal quotation marks and citation omitted); see Baugh
    v. Taylor, 
    117 F.3d 197
    , 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2.
    2
    

Document Info

Docket Number: 23-10255

Filed Date: 11/27/2023

Precedential Status: Non-Precedential

Modified Date: 11/28/2023