Nickson v. Valdez, et al

* 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that this opinion should not be published and is not precedent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. 02-50717
Conference Calendar
EVERETT JEROME NICKSON,
Plaintiff-Appellant,
versus
G.H. VALDEZ, Captain; MR. KNOX; DOMINGUEZ STATE JAIL;
NURSE QUARHARDO; NURSE MYERS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-735
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February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Everett Jerome Nickson, Texas prisoner # 815724, seeks
permission to proceed in forma pauperis (IFP) to appeal the
denial of his 42 U.S.C. § 1983 complaint, in which he alleged
that the defendants were deliberately indifferent to his medical
needs.
An appellant may challenge a district court’s certification
decision that an appeal would not be taken in good faith by
filing in this court a motion to proceed IFP. See Baugh v.

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No. 02-50717
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Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); FED. R. APP. P. 24(a)(5). The motion, however,
“must be directed solely to the trial court’s reasons for the
certification decision.” See Baugh, 117 F.3d at 202. Nickson’s
IFP motion is not directed to the district court’s reasons for
the certification decision; therefore, he has not established an
entitlement to proceed IFP.
The merits of Nickson’s appeal are “inextricably intertwined
with the certification decision,” and, therefore, we may also
entertain the issue whether the appeal should be dismissed. See
id. A prison official acts with deliberate indifference if he
“knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994). The undisputed material facts are not
ones from which the inference could be drawn that a substantial
risk of serious harm existed to Nickson’s health or safety.
Nickson therefore cannot establish deliberate indifference as a
matter of law.
Nickson’s negligence claims against defendants Valdez and
Knox for breach of their duty to maintain the steam press are not
cognizable in a 42 U.S.C. § 1983 proceeding and were therefore
properly dismissed. See Neals v. Norwood, 59 F.3d 530, 532-33
(5th Cir. 1995).

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No. 02-50717
-3-
Nickson has not established that an appeal would not involve
nonfrivolous issues. His motion for IFP status is therefore
denied, and his appeal is dismissed as frivolous. See 5TH CIR.
R. 42.2; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
IFP MOTION DENIED; APPEAL DISMISSED.

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