Unreported / Non-Citable
Background
Howard and Theresa Lynn Ellsworth filed suit against VA officials and officers—including police officers Marx, Dvorak, Wilson, and Tanner, along with various Veterans Affairs administrators—raising claims under Bivens v. Six Unknown Named Agents (civil rights), the Federal Tort Claims Act (FTCA), and 42 U.S.C. § 1985(3). The suit arose from events involving the VA and included a First Amendment retaliation claim.
The district court dismissed the complaint and certified that any appeal would not be taken in good faith because the Ellsworths would not present a nonfrivolous appellate issue. The Ellsworths then moved to proceed in forma pauperis (IFP) on appeal, which constitutes a challenge to the district court’s certification of frivolousness.
The Ellsworths argued that the district court erred in applying res judicata to their First Amendment retaliation claim, contending that the Bivens claim had not yet accrued when they filed a previous FTCA medical malpractice case.
The Court’s Holding
The Fifth Circuit rejected the Ellsworths’ argument and found their appeal lacked a nonfrivolous issue. The court clarified that Bivens relief was not denied under the doctrine of res judicata. Rather, only the FTCA claims against the United States were deemed barred by res judicata. Because the Ellsworths failed to meaningfully brief or challenge the district court’s reasons for dismissing their FTCA claims, those claims were deemed abandoned under Fifth Circuit precedent.
The court further found that the Ellsworths did not meaningfully address the district court’s analysis regarding the remainder of their claims, leading to abandonment of those claims as well. The panel determined that the Ellsworths had failed to show a nonfrivolous issue with respect to the district court’s dismissal of the civil action.
Accordingly, the Fifth Circuit DENIED the motion to proceed IFP and DISMISSED the appeal as frivolous.
Key Takeaways
- An IFP appeal is frivolous when the appellant fails to identify a nonfrivolous appellate issue, and dismissal is appropriate under Fifth Circuit Rule 42.2.
- Failing to meaningfully brief and challenge the district court’s reasoning results in abandonment of the claims on appeal.
- Clarification of res judicata: the doctrine barred only the FTCA claims against the United States, not the underlying Bivens claims, but the Ellsworths’ failure to adequately brief this distinction defeated their appeal.
Why It Matters
This decision reinforces Fifth Circuit standards for frivolous appeals and the requirement that appellants meaningfully engage with district court reasoning. When parties fail to adequately brief their claims or fail to identify a nonfrivolous issue for appeal, courts will dismiss the appeal as frivolous—particularly in IFP cases where judicial resources are already limited.
The opinion also clarifies the distinction between res judicata applied to FTCA claims versus Bivens claims, which may be relevant to parties pursuing dual-theory civil rights and tort claims against federal agencies, particularly the VA.