IN THE TJNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TERESA WARD COOPER

Plaintiff,

VS.

CITY OF DALLAS, TEXAS,

ET AL.

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Defendants. $

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Teresa Ward Cooper, appearingpro se, has filed a motion for leave to proceed in

formo pauperis on appeal. For the reasons stated herein, the motion should be denied.

I.

This is a discrimination, retaliation, and civil rights action brought by plaintiff, a former

Dallas police officer, against the City of Dallas and Chief David Kunkle. On August I l, 2008, the

district court entered a final summary judgment in favor of defendants dismissing plaintiffs claims

on the affirmative defense ofres judicata. Cooper v. City of Dallas,No. 3-04-CV-2407-N, 2008 WL

3330554 (N.D. Tex. Aug. 11, 2008). Plaintiff did not appeal that judgment. Instead, she filed a

motion for new trial. That motion was denied on March I0,2009. Thereafter, on March 20,2009,

plaintiff filed apro se notice of appeal. Plaintiff now seeks leave to prosecute her appeal informa

pauperis.

II.

The standards governin g in forma pauperis motions are set forth in 28 U. S.C. $ I 9 I 5(a). A

district court "may authorize the commencement, prosecution or defense of any suit . . . or appeal

 

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therein, without prepayment of fees or security therefor, by a person who submits an affidavit that

includes a statement of all assets such [person] possesses that the person is unable to pay such fees

or give security therefor." 28 U.S.C. $ 1915(a)(1). The affidavit must also state "the nature of the

action, defense or appeal and affiant's belief that the person is entitled to redress." Id. A court may

deny leave to proceed in forma pauperis if an appeal is not taken in good faith. Id, $ I 91 5(aX3);

see also Howardv. King,707 F.2d2I5,219-20 (5th Cir. 1983). An appeal is taken in good faith if

it presents an arguable issue on the merits and therefore is not frivolous. Coppedge v. United States,

369 U.S. 438,445,82 S.Ct. 917,921,8 L.Ed.2d 2l (1962); Howard,707 F.2dat220.

Plaintiff has submitted an affidavit in support of her motion which indicates that she lacks

the financial resources to prosecute an appeal. However, even if plaintiff is indigent, her motion

should be denied. As the district court noted in its March 10, 2009 order, plaintiff "has not shown

any basis for the Court to reconsider its prior decision granting summary judgement in favor of the

CityofDallasanddismissingthisactionontheaffirmativedefenseofresjudicata." Order,3ll0/09.

Any appeal on those same grounds would be frivolous. Consequently, the district court should

certifu that plaintiffs appeal is not taken in good faith. See 28 U.S.C. $ 1915(aX3).

RECOMMENDATION

The district court should find that plaintiff is indigent, but certifu that her appeal is not taken

in good faith. Accordingly, plaintiffs motion for leave to proceed informapauperis on appeal [Doc.

#1751should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within l0 days after

being served with a copy. See 28 U.S.C. $ 636(bX1); Fno. R. Ctv. P.72(b). The failure to file

written objections will bar the aggrieved parfy from appealing the factual findings and legal

 

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conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain enor. See Douglass v. United Services Automobile Ass'n,79 F .3d 1415, l4l7 (sth

Cir.1996).

DATED: March 26"2009.

SI"ATES MAGISTRATE JUDGE

 

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