IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30355

Summary Calendar

JUDITH SKIBA,

Plaintiff-Appellant

v.

JACOBS ENTERTAINMENT, INCORPORATED, Stephen R. Roark, 

President,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CV-5693

Before SMITH, ELROD and HIGGINSON, Circuit Judges.

PER CURIAM:*

Judith Skiba moves for leave to proceed in forma pauperis (IFP) in her 

appeal from the grant of summary judgment in her employment discrimination 

action. She contends that the district court erred by denying her discovery 

requests, that the district court erred by addressing a nonexistent claim of sex 

discrimination, and that the district court erred by denying her motion to 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 10, 2014

Lyle W. Cayce

Clerk

 

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obtain information from the defendant about Skiba’s own right-to-sue letter 

from the Equal Employment Opportunity Commission (EEOC). The district 

court certified pursuant to 28 U.S.C. § 1915(a)(3), that Skiba’s appeal was not 

taken in good faith.

In both prisoner and nonprisoner litigation, “[a]n appeal may not be 

taken [IFP] if the trial court certifies in writing that it is not taken in good 

faith.” 28 U.S.C. § 1915(a)(3); see Baugh v. Taylor, 117 F.3d 197, 199-200 (5th 

Cir. 1997) (recognizing the applicability of § 1915(a)(3) to suits brought by 

“prisoners and nonprisoners alike”). When a district court certifies that an 

appeal is not taken in good faith under § 1915(a)(3), as herein, the litigant may 

either pay the filing fee or challenge the court’s certification decision. Baugh, 

117 F.3d at 202. Skiba’s IFP motion and brief are construed as a challenge to 

the district court’s certification. See id.

This court’s inquiry into whether the appeal is taken in good faith “is 

limited to whether the appeal involves legal points arguable on their merits

(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 

1983) (internal quotation marks and citations omitted). If “the merits are so 

intertwined with the certification decision as to constitute the same issue,” the

court may determine the merits as well as the appropriateness of the IFP 

status. Baugh, 117 F.3d at 202. If the court upholds the district court’s 

certification that the appeal is not taken in good faith, the appellant must pay 

the appellate filing fee or the appeal will be dismissed for want of prosecution. 

See id. However, if the appeal is frivolous, this court may dismiss it sua sponte 

under Fifth Circuit Rule 42.2. See Baugh, 117 F.3d at 202 n.24.

As for the discovery requests, Skiba argues that she needed discovery of 

her work records to present background information and to prepare a witness 

list. She asserts that she was unable without discovery to prepare a defense 

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against Jacobs’s allegation that she was fired because she threatened a 

customer, a criminal offense, or to decide whether to invoke her right against 

self-incrimination. She further argues that she should have been given the 

opportunity to submit a surveillance video in the record to an expert to obtain 

an affidavit attesting that the video had been tampered with, as it had been 

“pieced together and blackened out.” 

Discovery is not a prerequisite to the disposition of a motion for summary 

judgment. Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). 

A party who contends that additional discovery is required prior to summary 

judgment may file a motion for a continuance under Federal Rule of Civil 

Procedure 56(d), formerly Rule 56(f), together with an affidavit or declaration 

showing, for specified reasons, that she cannot present facts essential to justify 

his opposition. FED. R. CIV. P. 56(d). A motion for a continuance under Rule 

56(d) is “broadly favored and should be liberally granted.” Culwell v. City of 

Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006). However, the party may not 

rely on vague assertions but “must set forth a plausible basis for believing that 

specified facts, susceptible of collection within a reasonable time frame, 

probably exist and indicate how the emergent facts, if adduced, will influence 

the outcome of the pending summary judgment motion.” Raby v. Livingston, 

600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks and citation 

omitted). If additional discovery “will not provide evidence creating a genuine 

issue of material fact, the district court may grant summary judgment.” Id.

(internal quotation marks and citation omitted). A district court’s decision 

whether to delay summary judgment for further discovery is reviewed for an 

abuse of discretion. Id.

Skiba did not move in the district court for a continuance to obtain an 

expert opinion about the surveillance video. A Weiser Security employee 

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authenticated the surveillance video, and a copy was sent to Skiba. Moreover, 

the district court’s copy of the video had been available for inspection, yet Skiba 

evidently did not review it. Additionally, Skiba provided nothing other than 

her speculative allegations to support her contention that the video had been 

altered. Even if Skiba had moved for a continuance for an expert examination, 

she has failed to present any basis for finding that an expert examination 

would affect the outcome of the proceeding. See Raby, 600 F.3d at 561.

No specific allegations are made on appeal as to why she needed her 

employment records from Jacobs or a list of other employees to prepare a 

response to the summary judgment motion or to defend herself against the 

allegation that she threatened a customer with a knife. To the extent Skiba 

attempts to contend that the magistrate judge should have ordered Jacobs to 

provide further discovery before granting summary judgment, she has failed 

to brief for appeal whether the employment records or a list of other employees 

would have affected the outcome of the proceeding. See Raby, 600 F.3d at 561; 

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987). Moreover, and although the self-incrimination issue was not raised in 

the district court, Skiba already had the Weiser notes as to the knife incident, 

and those notes already provided a basis on which Skiba could decide whether 

to invoke her right against self-incrimination. The denial of Skiba’s discovery 

requests was not an abuse of discretion. See Raby, 600 F.3d at 561.

As for consideration of a sex discrimination claim, Skiba denied having 

ever made such a claim, and she argues that the magistrate judge erred by 

addressing a nonexistent claim instead of addressing her right to discovery. 

She does not indicate consideration of a sex discrimination claim amounted to 

more than harmless error, or that consideration of the claim actually precluded 

consideration of her race discrimination claim or her discovery arguments, and 

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it is not apparent that consideration of unraised claims is necessarily 

prejudicial. See St. Paul Mercury Inc. Co. v. Williamson, 224 F.3d 425, 435 

(5th Cir. 2000). Moreover, the magistrate judge addressed sex discrimination 

only to the extent that he determined Skiba could not amend her complaint to 

add such a claim. Any error was harmless, see Williamson, 224 F.3d at 435, 

and Skiba’s contention is unavailing.

Finally, Skiba asserts that Jacobs lied about the right-to-sue letter by 

stating that the EEOC found no merit in her claim and dismissed it. She 

argues that Jacobs can be sued for malicious prosecution for making false 

allegations, but she does not otherwise indicate how this alleged lie is relevant.

The right-to-sue letter indicated that the EEOC terminated its 

processing of Skiba’s claim because it was unlikely that the agency would be 

able to complete its administrative processing within 180 days of filing. 

Jacobs’s statement as to the EEOC letter was not inconsistent with the rightto-sue letter, which indicated that the complaint was terminated without any 

determination having been made. The magistrate judge did not abuse his 

discretion by declining to grant Skiba’s motion. See United States v. Meza, 701 

F.3d 411, 425 (5th Cir. 2012) (stating abuse-of-discretion standard).

IFP DENIED; APPEAL DISMISSED.

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