IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11370

Summary Calendar

OCTAVIA SMITH,

Plaintiff-Appellant

v.

DALLAS COUNTY HOSPITAL DISTRICT, doing business as Parkland 

Health and Hospital System,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CV-792

Before JOLLY, DENNIS, and PRADO, Circuit Judges. 

PER CURIAM:*

Octavia Smith filed a pro se complaint under Title VII of the Civil Rights 

Act of 1964 seeking damages against her former employer, Dallas County 

Hospital District d/b/a Parkland Health and Hospital System (Parkland). 

Because she failed to disclose her potential claim against Parkland in a 

bankruptcy petition, the district court found that the doctrine of judicial 

 

* 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

June 9, 2016

Lyle W. Cayce

Clerk

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estoppel applied, granted Parkland’s summary judgment motion, and 

dismissed Smith’s complaint. The district court also denied Smith’s motion for 

leave to proceed in forma pauperis (IFP) on appeal and certified that the appeal 

was not taken in good faith. Smith now moves this court for leave to proceed 

IFP on appeal. 

“An appeal may not be taken in forma pauperis if the trial court certifies 

in writing that it is not taken in good faith.” § 1915(a)(3); see FED. R. APP. P. 

24(a)(3)(A); see also 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”); see also Champluvier v. Couch, 309 F. App’x 902, 903 (5th 

Cir. 2009) (Baugh applies to nonprisoner IFP motion). By moving to proceed 

IFP in this court, Smith is challenging the district court’s certification that her

appeal is not in good faith. See Baugh, 117 F.3d at 202. This court’s inquiry 

“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 citation omitted). If this court upholds 

the district court’s certification decision, the appellant must pay the filing fee 

or the appeal will be dismissed for want of prosecution. Baugh, 117 F.3d at 

202. However, “where the merits are so intertwined with the certification 

decision as to constitute the same issue,” this court may decide the merits of 

the appeal, and, if the appeal is frivolous, this court may deny the IFP motion 

and dismiss the appeal sua sponte under Fifth Circuit Rule 42.2. Id. at 202 & 

n.24.

The appellate court reviews a district court’s grant of summary judgment 

de novo. Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir.

2014). Summary judgment is appropriate “if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to 

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judgment as a matter of law.” FED. R. CIV. P. 56(a). “A genuine dispute as to 

a material fact exists ‘if the evidence is such that a reasonable jury could return 

a verdict for the nonmoving party.’” Rogers, 755 F.3d at 350 (internal quotation 

and citation omitted). In deciding whether a fact issue exists, courts must view 

the facts and draw reasonable inferences in the light most favorable to the 

nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). “But [s]ummary 

judgment may not be thwarted by conclusional allegations, unsupported 

assertions, or presentation of only a scintilla of evidence.” Rogers, 755 F.3d at 

350 (internal quotation marks and citation omitted).

In the instant case, the district court concluded that judicial estoppel 

applied based on Smith’s failure to disclose her claim against Parkland in her 

bankruptcy proceedings. A bankruptcy debtor is required to disclose all assets, 

including contingent claims or potential causes of action. In re Coastal Plains, 

Inc., 179 F.3d 197, 207-08 (5th Cir. 1999). In assessing whether judicial 

estoppel should apply, a court looks to the following elements: “(1) the party 

against whom judicial estoppel is sought has asserted a legal position which is 

plainly inconsistent with a prior position; (2) a court accepted the prior 

position; and (3) the party did not act inadvertently.” Reed v. City of Arlington,

650 F.3d 571, 574 (5th Cir. 2011) (en banc). This court has stated that judicial 

estoppel is “particularly appropriate where . . . a party fails to disclose an asset 

to a bankruptcy court, but then pursues a claim in a separate tribunal based 

on that undisclosed asset.” Id. (internal quotation marks and citation omitted). 

The district court’s application of judicial estoppel is reviewed for an abuse of 

discretion. Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012); see also 

Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (stating 

that judicial estoppel finding is reviewed for abuse of discretion, even if district 

court grants summary judgment on that basis).

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In her brief, Smith asserts that the district court should not have 

considered Parkland’s evidence submitted in connection with the supplemental 

motion for summary judgment. She contends that the evidence was not 

updated and that her signature was not on some of the documents. She 

charges that Parkland submitted “paper work that was forge[d] and emails 

that were cop[ied] and paste[d].” She does not cite to any specific deficient 

evidence submitted by Parkland, nor does she identify any basis on which the 

evidence was inadmissible other than conclusory and speculative assertions of 

fraud. Her conclusory allegations do not show that the evidence was 

inadmissible for purposes of summary judgment. See FED. R. CIV. P. 56(c) 

(stating that a party arguing a genuine dispute of a material fact must support 

the assertion by certain evidence).

Smith does not dispute that she failed to list her claim in her bankruptcy 

petition, that her positions regarding the existence of the claim were plainly 

inconsistent, or that the bankruptcy court accepted that she had no other 

claims. Therefore, the district court’s grant of summary judgment should be 

reversed only if there is a “genuine factual dispute regarding whether [Smith] 

failed to disclose [her] claims inadvertently.” Love, 677 F.3d at 262.

A failure to disclose a claim in bankruptcy is considered inadvertent 

“only when, in general, the debtor either lacks knowledge of the undisclosed 

claims or has no motive for their concealment.” In re Coastal Plains, 179 F.3d 

at 210. In its summary judgment motion, Parkland argued that Smith was 

aware of her possible claim at the time she filed her bankruptcy petition and 

that the potential for a future recovery against Parkland provided a motive for 

concealing the claim on her bankruptcy petition. Once knowledge of a claim 

and a motive to conceal were established, the burden shifted to Smith to show 

that the failure to disclose was inadvertent. See Love, 677 F.3d at 262.

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Smith has presented no admissible summary-judgment evidence 

creating a genuine dispute regarding whether she inadvertently failed to 

disclose her claims in bankruptcy. Smith’s appeal thus lacks any issue of 

arguable merit and is therefore frivolous. See Howard, 707 F.2d at 220. 

Accordingly, her motion to proceed IFP on appeal should be denied, and her

appeal should be dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24.

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