Case: 23-20486 Document: 60 Page: 1 Date Filed: 04/25/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-20486 FILED
April 25, 2024
Summary Calendar
____________ Lyle W. Cayce
Clerk
Julien Simmons, I,
Plaintiff—Appellant,
versus
Consumer Assistance Group, U.S. Attorney’s Office; Michelle
Parham, U.S. Attorney’s Office; PNC Bank, Houston Plaza
Branch; Brian Thomas, Managing Director of PNC Wealth
Management; Annie Thomas, PNC Bank Manager of Texas Houston
Market Regional Headquarters Branch; Julie Sudduth, PNC Regional
President of Greater Houston,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:23-CV-65
______________________________
Before Elrod, Haynes, and Douglas, Circuit Judges.
Per Curiam: *
Julien Simmons, I, moves to proceed in forma pauperis (IFP) on
appeal from an order of the district court granting a motion for
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-20486 Document: 60 Page: 2 Date Filed: 04/25/2024
No. 23-20486
reconsideration; dismissing his claims against the Consumer Assistance
Group and Michelle Parham (collectively, the Federal Defendants) as barred
by sovereign immunity; and remanding his claims against PNC Bank, Brian
Thomas, Annie Thomas, and Julie Sudduth (collectively, the PNC
Defendants) to state court. The Federal Defendants removed the action
from state court pursuant to 28 U.S.C. § 1442(a)(1).
By moving to proceed IFP in this court, Simmons challenges 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). Our 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 citations omitted).
Simmons’s argument that removal was improper fails because there is
the requisite “ʻcausal connection’ between the charged conduct and asserted
official authority.” Willingham v. Morgan, 395 U.S. 402, 409 (1969) (citation
omitted). His contention that the district court erred in granting sovereign
immunity to the Federal Defendants also fails. As the party asserting subject
matter jurisdiction, Simmons had the burden of proof on the Federal
Defendants’ motion to dismiss under Federal Rule of Civil Procedure
12(b)(1). In addition, he had the burden to establish that the discretionary
function exception of the Federal Tort Claims Act (FTCA) did not apply.
See Joiner v. United States, 955 F.3d 399, 403 (5th Cir. 2020); Life Partners
Inc. v. United States, 650 F.3d 1026, 1029 (5th Cir. 2011). Although Simmons
asserts that there was no evidence to support the dismissal of his claims
against the Federal Defendants and that the district court erred by ignoring
evidence filed before the pretrial conference, he makes no cogent argument
that the district court erred in determining that his claims against the Federal
Defendants were not within the scope of the FTCA and that the discretionary
function exception applied. As to his claims against the PNC Defendants,
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No. 23-20486
Simmons has waived any challenge to the remand of such claims by failing to
brief the issue. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
To the extent that Simmons complains of delay and untimely rulings
by the magistrate judge and the district court and asserts that proper
procedures were not followed because the scheduled pretrial conference was
canceled and the case was stayed, he fails to demonstrate that there is a
nonfrivolous issue for appeal given the broad discretion of the district court
to control its own docket. See Union City Barge Line, Inc. v. Union Carbide
Corp., 823 F.2d 129, 135 (5th Cir. 1987). Further, to the extent that Simmons
is complaining of judicial bias, he also fails to raise a nonfrivolous issue, as the
claims of bias are based on nothing more than adverse rulings, which, except
in circumstances that are not present here, are insufficient to show judicial
bias. See Liteky v. United States, 510 U.S. 540, 555 (1994).
Simmons’s concern that his appeal may be barred pursuant to 28
U.S.C. § 636(b)(1)(C) and Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415
(5th Cir. 1996) (en banc) is without foundation. Finally, although he asserts
that his allegations regarding the defendants are true, and he argues that his
“Final Court Order” proposes a proper verdict, these contentions fail to
make the requisite showing. See Howard, 707 F.2d at 220.
Because Simmons has not demonstrated that there is a nonfrivolous
issue for appeal, his motion to proceed IFP is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard,
707 F.2d at 220; see also 5th Cir. R. 42.2. Simmons’s motion for an
expedited ruling on his IFP motion is DENIED.
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