Opinion
Civil Action 4:22-CV-4036
09-21-2023
KENT VU PHAN, Plaintiff, v. AURORA MEDICAL CENTER, et al., Defendants.
MEMORANDUM AND RECOMMENDATION
Sam S. Sheldon United States Magistrate Judge
Pending before the Court is Plaintiff's Motion to Proceed in forma pauperis (“IFP”). (Dkt. No. 60.) Based on a thorough review of the motion and relevant law, the Court RECOMMENDS the Motion be DENIED.
The District Court referred this case to the undersigned on May 2, 2023. (Dkt. No. 48.)
I. BACKGROUND
On November 16, 2022, Kent Vu Phan (“Plaintiff”) filed his pro se claim in this Court against The Aurora Medical Center of Colorado, Dr. Allen Dorsett, and Go Imaging MRI. (Dkt. No. 1.) Plaintiff's case was ultimately dismissed with prejudice on June 29, 2023. (Dkt. No. 57.) United State District Judge Andrew S. Hanen also declared Plaintiff a vexatious litigant and ordered Plaintiff to seek, in writing, permission from the Miscellaneous District Judge on duty for the month before any further pleadings could be filed. (Id. at 2.) Plaintiff filed a notice of appeal on July 12, 2023. (Dkt. No. 58.) Despite Judge Hanen's pre-filing order, Plaintiff filed the instant Motion to Proceed IFP on July 17, 2023. (Dkt. No. 60.)
II. ANALYSIS
Motions to proceed IFP while on appeal are governed by 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24. Smith v. Dallas Cty. Hosp. Dist., No. 13-CV-792, 2015 WL 566673, at *1 (N.D. Tex. Feb. 10, 2015). “A movant seeking leave to proceed IFP on appeal must demonstrate that [he] is a pauper and that [his] appeal is taken in good faith, i.e., that [he] will raise a nonfrivolous issue on appeal.” Winsley v. Fed. Exp. Corp., 393 Fed.Appx. 145, 146 (5th Cir. 2010); see Johnson v. U.S. Farathane, No. 18-CV-716, 2018 WL 8805372, at *1 (W.D. Tex. Nov. 29, 2018) (“An appeal is taken in good faith if it presents an arguable issue on the merits and therefore is not frivolous.”).
Here, Judge Hanen recently designated Plaintiff as a vexatious litigant and enjoined Plaintiff from filing further pleadings in the Southern District of Texas without first obtaining judicial permission. (Dkt. No. 57 at 2.) In Plaintiff's Motion to Proceed IFP, there is nothing to suggest that Plaintiff obtained permission to file his motion. (Dkt. No. 60.) Accordingly, the Court recommends that Plaintiff's Motion to Proceed IFP be denied for violating Judge Hanen's prefiling order. See Montez v. Aguirre & Gonzalez, No. 23-CV-00448, 2023 WL 3973626, at *1 (W.D. Tex. June 13, 2023) (adopting a magistrate judge's recommendation to deny an application to proceed IFP where a previously declared vexatious litigant failed to comply with a pre-filing injunction).
III. CONCLUSION
Based on the foregoing, the Court RECOMMENDS Plaintiff's Motion to Proceed IFP (Dkt. No. 60) be DENIED.
The Clerk shall send copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof to file written objections thereto pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.
The original of any written objections shall be filed with the United States District Clerk electronically. Copies of such objections shall be mailed to opposing parties and to the chambers of the Undersigned, 515 Rusk, Suite 7019, Houston, Texas 77002.