United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10255

Summary Calendar

____________

Stephen Barnes, 

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.

United States Court of Appeals

Fifth Circuit

FILED

November 27, 2023

Lyle W. Cayce

Clerk

Case: 23-10255 Document: 00516980204 Page: 1 Date Filed: 11/27/2023
No. 23-10255

2

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. 

Case: 23-10255 Document: 00516980204 Page: 2 Date Filed: 11/27/2023