     Case: 14-11370      Document: 00513541472         Page: 1    Date Filed: 06/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11370
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 9, 2016
OCTAVIA SMITH,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 14-11370

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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                                  No. 14-11370

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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                               No. 14-11370

     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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