Howard Lawrence Ellsworth III et al. v. Allan Marx et al.

E.D. Texas

Howard Lawrence Ellsworth III et al. v. Allan Marx et al.

DecidedOctober 28, 2025

Docket4:25-cv-00692

StatusUnknown

This text of Howard Lawrence Ellsworth III et al. v. Allan Marx et al. (Howard Lawrence Ellsworth III et al. v. Allan Marx et al.) is published on Counsel Stack Legal Research, covering District Court, E.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Howard Lawrence Ellsworth III et al. v. Allan Marx et al., (E.D. Tex. 2025).

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 4:25-cv-00692 Howard Lawrence Ellsworth III et al., Plaintiffs, v. Allan Marx et al., Defendants.

ORDER Plaintiffs filed this action against defendants, alleging consti- tutional claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Federal Tort Claims Act (FTCA), and 42 U.S.C. § 1985(3). Doc. 1 at 2. The magistrate judge screened the complaint under 28 U.S.C. § 1915(e)(2) and recommended that plaintiffs’ claims be dismissed with prejudice. Doc. 6 at 17. The court accepted the findings of the magistrate judge and entered final judgment dismissing plaintiffs’ claims with prejudice. Docs. 8, 9. Thereafter, plaintiffs filed a notice of appeal (Doc. 10) and a motion for leave to proceed in forma pauperis (IFP) on appeal (Doc. 12). The magistrate judge recommended that plaintiffs’ motion for leave to proceed IFP on appeal be denied. Doc. 13. Plaintiffs filed objections to that report. Doc. 14. The court reviews the objected-to portions of a magistrate judge’s report and recommendation de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). On de novo review, the court examines the entire record and makes an independent as- sessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days). “Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” Vettles ». Wainwright, 677 F.2d 404, 410 n.8 (5th

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Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass, 79 F.3d 1415. Furthermore, a party’s entitlement to de novo re- view does not entitle it to raise arguments that were not presented to the magistrate judge without a compelling reason. See Cupit ». Whitley, 28 F.3d 532, 535 & n.5 (5th Cir. 1994). Plaintiffs’ objections to the report and recommendation raise arguments that were not set forth in their original motion pre- sented to the magistrate judge. Compare Doc. 12 with Doc. 14. In- stead, plaintiffs address the issue of whether the appeal is taken in good faith for the first time in their objections. Jd. No compelling reason is stated for why these arguments are raised in the objec- tions but not in the motion. Thus, the objections are improper and lack merit. Having reviewed the report and recommendation de novo and finding no error, the court accepts the magistrate judge’s recom- mendation. Plaintiffs’ motion to proceed IFP on appeal (Doc. 12) is denied. The court certifies that the appeal is not taken in good faith. See Fed. R. App. P. 24(a)(3)(A). The clerk of court shall fur- nish a copy of this order to the U.S. Court of Appeals for the Fifth Circuit under Federal Rule of Appellate Procedure 24(a)(4). Plaintiffs may file a separate motion to proceed IFP on appeal with the clerk of court for the Fifth Circuit within thirty days of this order. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); Fed. R. App. P. 24(a)(5). So ordered by the court on October 28, 2025.

_f AMPBELL BARKER | United States District Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS No. 4:25-cv-00692 Howard Lawrence Ellsworth III et al., Plaintiffs, v. Allan Marx et al., Defendants.

ORDER Plaintiffs filed this action against defendants, alleging consti- tutional claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Federal Tort Claims Act (FTCA), and 42 U.S.C. § 1985(3). Doc. 1 at 2. The magistrate judge screened the complaint under 28 U.S.C. § 1915(e)(2) and recommended that plaintiffs’ claims be dismissed with prejudice. Doc. 6 at 17. The court accepted the findings of the magistrate judge and entered final judgment dismissing plaintiffs’ claims with prejudice. Docs. 8, 9. Thereafter, plaintiffs filed a notice of appeal (Doc. 10) and a motion for leave to proceed in forma pauperis (IFP) on appeal (Doc. 12). The magistrate judge recommended that plaintiffs’ motion for leave to proceed IFP on appeal be denied. Doc. 13. Plaintiffs filed objections to that report. Doc. 14. The court reviews the objected-to portions of a magistrate judge’s report and recommendation de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). On de novo review, the court examines the entire record and makes an independent as- sessment under the law. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days). “Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court.” Vettles ». Wainwright, 677 F.2d 404, 410 n.8 (5th

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Cir. Unit B 1982) (en banc), overruled on other grounds by Douglass, 79 F.3d 1415. Furthermore, a party’s entitlement to de novo re- view does not entitle it to raise arguments that were not presented to the magistrate judge without a compelling reason. See Cupit ». Whitley, 28 F.3d 532, 535 & n.5 (5th Cir. 1994). Plaintiffs’ objections to the report and recommendation raise arguments that were not set forth in their original motion pre- sented to the magistrate judge. Compare Doc. 12 with Doc. 14. In- stead, plaintiffs address the issue of whether the appeal is taken in good faith for the first time in their objections. Jd. No compelling reason is stated for why these arguments are raised in the objec- tions but not in the motion. Thus, the objections are improper and lack merit. Having reviewed the report and recommendation de novo and finding no error, the court accepts the magistrate judge’s recom- mendation. Plaintiffs’ motion to proceed IFP on appeal (Doc. 12) is denied. The court certifies that the appeal is not taken in good faith. See Fed. R. App. P. 24(a)(3)(A). The clerk of court shall fur- nish a copy of this order to the U.S. Court of Appeals for the Fifth Circuit under Federal Rule of Appellate Procedure 24(a)(4). Plaintiffs may file a separate motion to proceed IFP on appeal with the clerk of court for the Fifth Circuit within thirty days of this order. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); Fed. R. App. P. 24(a)(5). So ordered by the court on October 28, 2025.

_f AMPBELL BARKER | United States District Judge

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