Davis v. Wal-Mart Stores East

Case: 21-60864 Document: 00516684667 Page: 1 Date Filed: 03/22/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 21-60864
FILED
March 22, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
Chakakhan R. Davis,
Plaintiff—Appellant,
versus
Wal-Mart Stores East, L.P.,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:14-CV-375
______________________________
Before King, Smith, and Graves, Circuit Judges.
Per Curiam: *
In 2014, Chakakhan R. Davis, proceeding pro se, filed a civil complaint
alleging that, due to the negligence of the defendants, she was injured while
shopping in a Wal-Mart store. Although she initially was allowed to proceed
in forma pauperis (IFP), the district court later found that Davis had been
deceptive regarding her ability to pay costs and dismissed her complaint. We
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-60864 Document: 00516684667 Page: 2 Date Filed: 03/22/2023
No. 21-60864
dismissed Davis’s appeal in 2016. A 2018 Federal Rule of Civil Procedure 60
motion was denied by the district court, and we dismissed her appeal from
the denial of that Rule 60 motion in February 2020.
In November 2020, Davis filed another Rule 60 motion in the district
court; she argued that her IFP pleadings had not been dishonest or deceptive,
that the defendants and district court had engaged in fraud to dismiss her
complaint, and that she had been allowed to proceed IFP in other cases. The
district court denied the motion, stating that it lacked any legitimate factual
or legal basis. Davis then filed a Federal Rule of Civil Procedure 59 motion,
which the district court also denied. She appealed. The district court denied
leave to proceed IFP on appeal because Davis had failed to submit an updated
application or financial affidavit.
Davis now moves in this court for leave to proceed IFP on appeal.
Fed. R. App. P. 24(a)(5). To proceed IFP, a litigant must demonstrate
both financial eligibility and a nonfrivolous issue for appeal. See Carson v.
Polley, 689 F.2d 562, 586 (5th Cir. 1982). An appeal presents nonfrivolous
issues when it raises legal points that are arguable on the merits. Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). If an appeal is frivolous, we may
dismiss it sua sponte. 5th Cir. R. 42.2; see Baugh v. Taylor, 117 F.3d 197,
202 & n.24 (5th Cir. 1997). Davis also has filed a motion to expedite the
consideration of her IFP motion.
In her appellate brief, Davis asserts that her post-judgment motions
presented new clear and convincing evidence of the defendants’ fraud.
However, this new evidence consists of the fact that she was granted leave to
proceed IFP in other cases, including one case involving the same district
court judge who dismissed the instant complaint. We have reviewed the
arguments in Davis’s brief, and we conclude that none of them “involves
legal points arguable on their merits.” Howard, 707 F.2d at 220. Because
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No. 21-60864
Davis has not shown that she will raise any nonfrivolous issues on appeal, her
IFP motion is DENIED, and this appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5th Cir. R. 42.2. Her motion for an
expedited ruling also is DENIED.
As noted above, since our dismissal of Davis’s initial appeal in 2016,
she has filed two Rule 60 motions, a Rule 59 motion, and two more appeals
in connection with this case. Davis is WARNED that future unauthorized,
repetitive, or frivolous filings in this court or any court subject to this court’s
jurisdiction may subject her to sanctions. See Coghlan v. Starkey, 852 F.2d
806, 817 (5th Cir. 1988).
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