Opinion
21-30492
03-30-2022
Darrel Thorn, Plaintiff-Appellant, v. Racetrac Petroleum, Incorporated, Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:20-CV-2509
Before Elrod, Oldham, and Wilson, Circuit Judges.
PER CURIAM [*]
Darrel Thorn filed a pro se complaint in Louisiana state court seeking damages and relief in a retail slip-and-fall case. He asserted that he sustained injuries when he slipped and fell on a wet floor at a RaceTrac store. The case was removed to federal court per diversity jurisdiction, and the district court 1 granted summary judgment to the defendant after concluding that Thorn did not establish under the Louisiana statute governing merchant liability that the wet floor presented an unreasonable risk that RaceTrac did not take reasonable care to address. The district court denied Thorn leave to proceed in forma pauperis (IFP) on appeal and certified that the appeal was not taken in good faith.
Thorn now moves this court for leave to proceed IFP. By moving to proceed IFP, he is challenging the district court's certification decision. 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 citation omitted).
On appeal, Thorn argues that the district court unexpectedly applied the local rules and did not permit him to file an opposition before granting summary judgment to RaceTrac. Thorn's pro se status did not excuse him from following the local rules, see Hulsey v. Tex., 929 F.2d 168, 171 (5th Cir. 1991), which provided him adequate notice of his obligations, see Martin v. Harrison Cty. Jail, 975 F.2d 192, 193 (5th Cir. 1992). Accordingly, the district court did not abuse its discretion in enforcing the filing deadlines established by the local rules. See Klocke v. Watson, 936 F.3d 240, 243 (5th Cir. 2019). After Thorn failed to file a timely response, the district court was entitled to accept as undisputed the facts offered in support of RaceTrac's summary-judgment motion. See Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).
His claim that the district court wrongly granted summary judgment in favor of RaceTrac is also unavailing. The unrefuted summary-judgment evidence, which included a videotape of the incident, supported that the wet floor was an obvious and apparent risk and that RaceTrac's placement of wet- 2 floor signs at the entrance, along with the fact that it was raining, made it clear to the public that the floor might be wet and that the hazard was open and obvious. See Melancon v. Popeye's Famous Fried Chicken, 59 So.3d 513, 515- 516 (La. Ct. App. 2011).
To the extent Thorn argues that the district court erred in not granting his motion for a protective order, his mere contention that the motion should have been granted does not constitute adequate briefing of the issue. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). His assertion that the district court judge was biased for denying various motions is unavailing. See Liteky v. United States, 510 U.S. 540, 555 (1994).
Because Thorn has not shown that the district court erred in certifying that his appeal was not taken in good faith, his IFP motion is denied. See Baugh, 117 F.3d at 202. The appeal lacks arguable merit and is dismissed as frivolous. See id. at 202 n.24; Howard, 707 F.2d at 219-20; 5th Cir. R. 42.2. Thorn's motion for a hearing is denied.
MOTIONS DENIED; APPEAL DISMISSED. 3
[*] Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.