     Case: 17-10001      Document: 00514462560         Page: 1    Date Filed: 05/08/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                      No. 17-10001
                                                                                 Fifth Circuit

                                                                               FILED
                                                                            May 8, 2018

MARK ANDREW CHRISTENSEN,                                                  Lyle W. Cayce
                                                                               Clerk
                                                 Plaintiff–Appellant,

v.

JOSEPH CAPPS, DOCTOR,

                                                 Defendant–Appellee.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:15-CV-854


Before SMITH, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Mark Andrew Christensen, federal prisoner # 09220-046, moves for leave
to proceed in forma pauperis (IFP) to appeal the dismissal of his pro se claims
against Dr. Joseph Capps under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§ 1346(b), and Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). In his second amended complaint, Christensen
alleged that Dr. Capps denied him adequate medical care in deliberate
indifference to his serious medical needs relating to his lung cancer, sleep


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10001     Document: 00514462560      Page: 2    Date Filed: 05/08/2018


                                  No. 17-10001

apnea, orthopedic problems, antibacterial resistant E. coli infection, and
neurological issues.
      By requesting IFP status in this court, Christensen is challenging the
district court’s certification under 28 U.S.C. § 1915(a)(3) that his appeal is not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In
evaluating whether the appeal is taken in good faith, the relevant inquiry is
“whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(cleaned up). When a prisoner challenges the district court’s decision certifying
that his appeal is not taken in good faith, “the [IFP] motion must be directed
solely to the trial court’s reasons for the certification decision.” Baugh, 117 F.3d
at 202.
      Here, the district court based its certification decision on its underlying
determination that Christensen failed to plead facts showing that Dr. Capps
violated his Eighth Amendment rights by acting with deliberate indifference
to his serious medical needs. Christensen has offered only conclusory
assertions and unwarranted factual deductions. See Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). Christensen fails to explain
why Dr. Capps’s alleged acts or omissions were not simply “[u]nsuccessful
medical treatment, acts of negligence, or medical malpractice[, which] do not
constitute deliberate indifference.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th
Cir. 2006). Nor has Christensen explained what “exceptional circumstances”
arguably show that Dr. Capps’s medical treatment amounted to deliberate
indifference. Id. at 346. Christensen has thus failed to establish that there is
an arguable legal issue arising from the district court’s dismissal of his Eighth
Amendment claim against Dr. Capps. See Howard, 707 F.2d at 220.




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                                  No. 17-10001

      Additionally, to the extent that Christensen’s IFP brief raises appellate
issues regarding FTCA and retaliation claims against Dr. Capps, those issues
are frivolous. See id. Because FTCA claims may be brought against only the
United States, and not its agencies or employees, the district court lacked
jurisdiction to consider Christensen’s FTCA claim against Dr. Capps. See
Galvin v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988). And Christensen has failed
to set forth an arguable legal issue with respect to his retaliation claim against
Dr. Capps. See McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998) (listing
requirements for a retaliation claim).
      In summary, Christensen has failed to show that his appeal raises a
nonfrivolous issue and is thus taken in good faith. See Howard, 707 F.2d at
220. Accordingly, Christensen’s IFP motion and his motion for appointment of
counsel are denied, and his appeal is dismissed as frivolous. See 5TH CIR. R.
42.2; Baugh, 117 F.3d at 202 & n.24; Howard, 707 F.2d at 219-20. The
dismissal of his appeal and the district court’s dismissal as frivolous of
Christensen’s prior prisoner civil rights complaint, see Christensen v. Scott, No.
96-40144, 1996 WL 405492, at *1 (5th Cir. Jun. 26, 1996) (unpublished), each
counts as a strike for purposes of § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387-88 (5th Cir. 1996). Christensen is warned that if he accumulates
three strikes, he will not be allowed to proceed IFP in any civil action or appeal
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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