Case: 09-11062     Document: 00511200047          Page: 1    Date Filed: 08/10/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 10, 2010
                                     No. 09-11062
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

SHERRI R. LOWE,

                                                   Plaintiff–Appellant,

v.

WELLCARE HEALTH PLANS INC.; IRVING GILBERT,

                                                   Defendants–Appellees.


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 3:09-CV-806


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Sherri R. Lowe filed a complaint against Wellcare Health Plans, Inc. and
Irving Gilbert seeking to recover money allegedly due her for services rendered
as a supplemental insurance salesperson. Upon the magistrate judge’s (MJ)
recommendation, the district court dismissed the complaint. The district court
denied Lowe leave to proceed in forma pauperis (IFP) after certifying that her
appeal was not taken in good faith. Lowe has challenged that certification by



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-11062    Document: 00511200047 Page: 2         Date Filed: 08/10/2010
                                 No. 09-11062

moving this court for leave to proceed IFP on appeal. See Baugh v. Taylor, 

, 202 (5th Cir. 1997).
      Lowe maintains that her complaint should not have been dismissed
without service upon the defendants. Further, she asserts that, once she was
granted IFP status in the district court, she was entitled to a trial and the
appointment of counsel. Lowe is incorrect. A district court may dismiss an IFP
complaint “at any time” if it is determined that the action is frivolous, malicious,
or fails to state a claim. 28 U.S.C. § 1915(e)(2).
      A review of the record in this case reveals that the MJ acted within his
authority when he screened Lowe’s case, denied the appointment of counsel, and
made recommendations regarding the case. See 28 U.S.C. § 636(b)(1)(A), (B).
However, it was the district court that dismissed Lowe’s complaint. Lowe argues
that she never received a copy of the MJ’s report and recommendation. We
accept this argument as true for the purposes of this appeal and conclude that
any such error is harmless as Lowe has not shown any prejudice from the lack
of receipt of that report. See McGill v. Goff, 

, 731-32 (5th Cir. 1994);
Braxton v. Estelle, 

, 397 (5th Cir. 1981).
      Lowe also maintains that because she was allowed to proceed IFP in the
district court she should not require authorization to proceed IFP on appeal.
Such authorization is required, however, because the district court certified that
her appeal was not taken in good faith. F ED. R. A PP. P. 24(a)(3)(A).
      Lowe has not shown that she will raise a nonfrivolous issue on appeal.
The instant appeal is without arguable merit and is thus frivolous. Accordingly,
Lowe’s IFP motion is DENIED. See Howard v. King, 

, 219-20 (5th
Cir. 1983). Her appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2; 

n.24.




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