Robichaux v. Cain, 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this opinion should not be published and is not precedent except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. 04-31125
Consolidated with
No. 05-30022
Summary Calendar
BARTHOLOMESS ROBICHAUX,
Plaintiff-Appellant,
versus
BURL CAIN; JAMES FELDER; DAVID BONNETT; MARK PORTACCI; CLAY
WILLIAMS; JERRY A. ESTES; DORA RABALAIS; ANTHONY TARVER, Dr.,
Defendants-Appellees.
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Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CV-804
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Bartholomess Robichaux, Louisiana prisoner # 91571,
challenges the district court’s denial of his application to
proceed in forma pauperis (IFP) on appeal following the district
court’s denial of his motion for summary judgment, grant of
summary judgment to the defendants, and dismissal of his 42
U.S.C. § 1983 complaint against various prison officials alleging
that inadequate ventilation in the prison harmed him by
United States Court of Appeals
Fifth Circuit
F I L E D
August 18, 2005
Charles R. Fulbruge III
Clerk

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No. 04-31125
c/w No. 05-30022
-2-
aggravating his asthma. Robichaux is effectively challenging the
district court’s certification that he should not be granted IFP
status because his appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3).
Robichaux was not entitled to summary judgment in his favor
because he did not show the absence of evidence to support the
defendants’ case. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-27 (1986). Nor did Robichaux satisfy his summary-judgment
burden of showing the existence of a genuine factual dispute
material to the issue of prison conditions such that the
defendants’ summary-judgment motion should have been denied.
FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Because there was no genuine issue as to any
material fact and the defendants were entitled to judgment as a
matter of law, the district court’s determination that
Robichaux’s appeal was not taken in good faith was correct. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Because Robichaux has failed to show that he has a
nonfrivolous issue for appeal, we uphold the district court’s
order certifying that the appeal is not taken in good faith.
Robichaux’s request for IFP status is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2.
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.

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