     Case: 18-10262      Document: 00514891088         Page: 1    Date Filed: 03/27/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                    No. 18-10262
                                                                                 FILED
                                                                           March 27, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
CAROLYN BUTLER,

                                                 Plaintiff-Appellant

v.

DALLAS AREA RAPID TRANSIT (DART); OLIVER JONES, #27286,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-3228


Before SOUTHWICK, HAYNES, and HO, Circuit Judges,
PER CURIAM: *
       Carolyn Butler filed in the district court a pro se complaint against
Dallas Area Rapid Transit (DART), which is a state transportation agency, and
Oliver Jones, who is a DART employee. She alleged that she was injured when
Jones’s negligent driving of a DART bus, in which she was a passenger,
resulted in an accident. The district court dismissed her lawsuit without




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-10262    Document: 00514891088       Page: 2   Date Filed: 03/27/2019


                                 No. 18-10262

prejudice for lack of subject-matter jurisdiction. Butler now moves this court
for leave to proceed in forma pauperis (IFP) on appeal.
      To proceed IFP, Butler must demonstrate financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). Our inquiry into whether the appeal is taken in good faith “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). We may deny the IFP motion
and dismiss the appeal sua sponte if it is frivolous. Baugh v. Taylor, 117 F.3d
197, 202 & n.24 (5th Cir. 1997); see 5TH CIR. R. 42.2. We generally review a
district court’s dismissal for lack of subject-matter jurisdiction based upon
legal questions de novo. Williams v. Wynne, 533 F.3d 360, 364-65 (5th Cir.
2008); see also Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir. 2014)
(noting that questions of fact necessary to a determination of subject matter
jurisdiction are properly determined by the district court ruling on a motion
under Federal Rule of Civil Procedure 12(b)(1).
      Butler argues that (1) she can sue DART and Jones under the Federal
Tort Claims Act (FTCA), set forth at 28 U.S.C. § 1346, which authorizes a cause
of action for personal injury caused by a government employee; (2) the district
court erred by holding that she cannot sue under 49 U.S.C. § 5301(b)(1)-(6);
(3) she can pursue her cause of action in federal court pursuant to § 2679(b),
but she cannot do so in Texas state court due to § 2679(d) and certain Texas
state laws; and (4) Federal Rule of Civil Procedure 60(b) protects her from the
district court’s erroneous assessment of her jurisdictional evidence. Because
Butler is not suing the United States or a federal government employee, she
cannot establish jurisdiction under the FTCA, and neither § 2679(b) or (d) are
applicable to her lawsuit. Her remaining assertions are conclusory and are



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                                 No. 18-10262

insufficient to support her attempt to establish subject-matter jurisdiction. See
Evans v. Dillard Univ., 672 F. App’x 505, 505-06 (5th Cir. 2017); Jeanmarie v.
United States, 242 F.3d 600, 602 (5th Cir. 2001). Butler has not demonstrated
that she will raise a nonfrivolous issue with respect to subject-matter
jurisdiction on appeal.
      Accordingly, Butler’s motion to proceed IFP on appeal is DENIED and
the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24;
Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.




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