Case: 10-10319 Document: 00511353317 Page: 1 Date Filed: 01/17/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 17, 2011
No. 10-10319
Summary Calendar Lyle W. Cayce
Clerk
TRACY NIXON,
Plaintiff-Appellant
v.
GMAC MORTGAGE CORPORATION,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:09-CV-1823
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Tracy Nixon, a pro se non-prisoner, moves for leave to proceed in forma
pauperis (IFP) in an appeal of the district court’s judgment dismissing his civil
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Nixon’s IFP
motion is a challenge to the district court’s certification that his appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Nixon argues that the magistrate judge was without authority to issue
dispositive rulings in his case. In reviewing this issue, the court must determine
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10319
whether Congress, in enacting the controlling statutes, intended for the
magistrate judge to perform the duty in question. United States v. Dees, 125
F.3d 261, 264 (5th Cir. 1997). The court must then determine whether the duty
delegated to the magistrate judge offends Article III of the Constitution. Id.
The magistrate judge did not conduct a trial on the merits in the instant
case and did not enter a final judgment. In accord with statutory authority and
the district court’s standing order of referral, the magistrate judge ruled on
pretrial non-dispositive motions and issued findings of fact and a
recommendation in accord with 28 U.S.C. § 636(b)(1)(A) & (B). The district court
entered the final disposition dismissing the case. Because the district court
retained the authority to review and reject the recommendation, the delegation
did not exceed the authority granted by statute to the magistrate judge; Nixon’s
consent was not required. There was no violation of Article III of the
Constitution. Dees, 125 F.3d at 265. This claim has no arguable merit.
Nixon also argues that the district court and magistrate judge should have
recused themselves from the case pursuant to 28 U.S.C. § 455. “[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Nixon argues that
the district judge in this case sat as a state appellate judge on an en banc panel
addressing a recusal motion against another judge ten years ago in a different
case. Nixon does not explain how this conduct warrants recusal. With respect
to the rest of his recusal motion, Nixon’s arguments reflect that he is
complaining about acts that the district court and magistrate judge performed
only in their judicial capacities. Nixon has provided no basis for a finding that
the district court’s or magistrate judge’s rulings in any case were the result of
personal bias, favoritism, or antagonism or that such rulings were based upon
knowledge acquired outside the judicial proceedings. The district court did not
abuse its discretion in denying the motion to recuse. See id. This claim has no
arguable merit.
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Nixon argues that the district court should have granted him a temporary
restraining order (TRO) precluding GMAC from alienating any of its assets
because he has a substantial likelihood in prevailing in the litigation. He seeks
to have the case remanded and an injunction entered directing GMAC to place
three million dollars in the court’s registry.
To the extent that Nixon is attempting to appeal the district court’s denial
of a TRO, this court does not have appellate jurisdiction over the denial of an
application for a TRO. Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999).
Insofar as he sought or is seeking a preliminary injunction on remand, it
is an extraordinary remedy that should only be issued if Nixon can demonstrate
a substantial likelihood of success on the merits, a substantial threat of
irreparable injury if the injunction is not granted, that the threat of injury
outweighs any harm that will result to the non-movant if the injunction is
granted, and that the injunction will not be a disservice to the public interest.
Ridgely v. FEMA, 512 F.3d 727, 734 (5th Cir.2008). “The [district court's]
ultimate decision to grant a preliminary injunction is reviewed for abuse of
discretion.” Id. Nixon’s pleadings show that he has no binding settlement
agreement with GMAC. See Padilla v. La France, 907 S.W.2d 454, 460 (Tex.
1995)(describing the requirements for a binding, enforceable settlement of a
Texas lawsuit). In the absence of providing any facts showing a binding
settlement agreement with GMAC, Nixon has not made the showing necessary
to entitle him to any form of injunctive relief. Further, because Nixon’s claim
that he had a binding settlement agreement with GMAC has no arguable basis
in law or fact, the district court did not abuse its discretion in dismissing the
complaint as frivolous. Newsome v. EEOC, 301 F.3d 227, 233 (5th Cir.
2002)(applying §1915(e)(2)(B)(i) to a non-prisoner whose complaint was
“frivolous” because it “lack[ed] an arguable basis in law or fact.”).
Nixon has failed to show that his appeal involves a nonfrivolous issue. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His motion to proceed IFP
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No. 10-10319
on appeal is denied. Because the appeal is frivolous, it is dismissed. See 5 TH
C IR. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.
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