Summary Calendar DENISE MCVEA v. James Crisp

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-50027
Summary Calendar
DENISE MCVEA
Plaintiff-Appellant
v.
JAMES CRISP
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:07-CV-353
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Denise McVea moves this court to proceed in forma pauperis (IFP) in this
appeal from the district court’s dismissal of her defamation suit against James
Crisp under FED. R. CIV. P. 12(b)(6) for failure to state a claim. The district
court denied McVea’s request to proceed IFP on appeal, certifying that the
appeal was not taken in good faith. McVea’s IFP motion is a challenge to the
United States Court of Appeals
Fifth Circuit
F I L E D
August 27, 2008
Charles R. Fulbruge III
Clerk

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No. 08-50027
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district court’s certification that her appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1992).
McVea argues that the district court erred in dismissing her complaint
because the statements made by Crisp were reasonably capable of defamatory
meaning and were not protected speech. She also contends that the district
court erred in considering irrelevant mitigating factors and in denying her
request to amend the complaint. However, McVea does not show how the
information she wished to include in her complaint would have altered the
district court’s decision.
When read in response to McVea’s internet posting on a third party’s
research of a Texas historical subject and considering the debate surrounding
this subject, a person of ordinary intelligence would not find Crisp’s words
reasonably capable of defamatory meaning. See Musser v. Smith Protective
Services, Inc., 723 S.W.2d 653, 654-55 (Tex. 1987). McVea also fails to present
a nonfrivolous argument regarding the district court’s consideration of
mitigating factors. Under Texas law, the district court was required to examine
all the surrounding circumstances. See Musser, 723 S.W.2d at 655.
McVea has not shown that she will present a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion
for leave for IFP is denied, and the appeal is dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; 5th Cir. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.

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