United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-51043
Conference Calendar
DAVE TODD, III,
Plaintiff-Appellant,
versus
CARL BURNS; A.R. MASSINGILL; KAY SHEELEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CV-26
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Dave Todd, III, Texas prisoner # 902802, has filed a motion
to proceed in forma pauperis (IFP) on appeal challenging the
district court’s certification that his appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir.
1997). The district court dismissed Todd’s 42 U.S.C. § 1983
complaint and denied permission to proceed IFP based on its
*
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that this opinion should not be published and is not precedent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.
No. 03-51043
-2-
conclusion that Todd’s claims of negligence failed to state a
claim upon which relief may be granted.
Todd has failed to address the district court’s conclusion
in his brief. Therefore, he effectively has waived the only
issue relevant to his entitlement to IFP status on appeal.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Even if Todd had briefed this issue, we conclude that an appeal
would be frivolous. To the extent that the defendants’ conduct
was negligent, the district court correctly held that negligence
claims are not cognizable in a 42 U.S.C. § 1983 complaint.
See County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998).
To the extent that Todd alleges that the defendants’ conduct
amounted to deliberate indifference to an unsafe working
condition, he has not alleged facts that would show that prison
officials were aware of an “excessive risk” that the machinery
would fall and injure someone or that they deliberately
disregarded that risk. See Farmer v. Brennan, 511 U.S. 825, 837
(1994).
The district court’s certification that Todd’s appeal is not
taken in good faith is upheld, his motion for IFP is DENIED, and
this appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at
202 and n.24; 5TH CIR. R. 42.2. Todd’s motion for appointment of
counsel also is DENIED. See Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982). The dismissal of Todd’s complaint in the
district court and the dismissal of this appeal count as
No. 03-51043
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“strikes” for the purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We caution Todd
that once he accumulates three strikes, he may not proceed IFP in
any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
IFP DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.