     Case: 17-30840      Document: 00514543532         Page: 1    Date Filed: 07/06/2018




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

                                      No. 17-30840                            FILED
                                                                           July 6, 2018
                                                                         Lyle W. Cayce
STEVEN PAUL BURNS,                                                            Clerk

                                                 Plaintiff-Appellant

v.

LINDA OTTESEN, Prison Health Care Manager; DACHEL WILLIAMS,
Department of Emergency Medical Services/ Prison Medical Services Division,
East Baton Rouge Parish Prison,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:14-CV-245


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Steven Paul Burns, Louisiana prisoner # 428006, moves for appointment
of counsel and for leave to appeal in forma pauperis (IFP) from the dismissal
of his civil rights action. He alleged primarily that the defendants failed to
provide him with adequate medical care for his dental problems. Pursuant to
Federal Rule of Civil Procedure 12(b)(6), the district court disposed of various



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-30840

claims and defendants.      The district court then granted defendant Linda
Ottesen’s motion for summary judgment and dismissed the entire action.
      By moving to appeal IFP, Burns challenges the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). His IFP request “must be directed solely to
the trial court’s reasons for the certification decision,” id., and our inquiry “is
limited to 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) (citation omitted). Burns has waived review of the district court’s Rule
12(b)(6) dismissals by failing to address those dismissals before us. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann v. Dallas
Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      We may dismiss an appeal “when it is apparent that an appeal would be
meritless.” Baugh, 117 F.3d at 202 & n.24; see 5TH CIR. R. 42.2. We review a
district court’s ruling on summary judgment de novo, employing the same
standard used by the district court. McFaul v. Valenzuela, 684 F.3d 564, 571
(5th Cir. 2012). A district court “shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The district
court must “draw all reasonable inferences in favor of the nonmoving party”
and “refrain from making credibility determinations or weighing the evidence.”
Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
(internal quotation marks and citations omitted). “[A] party cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions,
or only a scintilla of evidence.” Id. (internal quotation marks and citation
omitted). To overcome summary judgment, Burns, as the nonmovant, must
set forth specific facts showing the existence of a genuine issue for trial. See



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                                  No. 17-30840

FED. R. CIV. P. 56(c)(1). A genuine issue of fact does not exist “if the record
taken as a whole could not lead a rational trier of fact to find for the non-moving
party.” City of Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014).
      Prison officials violate the constitutional prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, resulting in unnecessary and wanton
infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991). A prison official
acts with deliberate indifference only if “the official knows of and disregards
an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S.
825, 837 (1994); see Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994)
(applying Farmer to a denial-of-medical-care claim). The record establishes
that Burns failed to show that Ottesen, who served as the prison healthcare
manager, exhibited deliberate indifference to his serious medical needs under
the circumstances. See Farmer, 511 U.S. at 837, 844-45. Ottesen’s responses
to Burns’s grievances show that she was aware of his specific complaints set
forth in those grievances, but those responses do not show that she was
deliberately indifferent to an excessive risk to his health and safety. Because
Burns has not shown that a nonfrivolous issue for appeal exists, his motion for
IFP is denied.    See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220.
Moreover, because “it is apparent that an appeal would be meritless,” Burns’s
appeal is dismissed. Baugh, 117 F.3d at 202 & n.24; see 5TH CIR. R. 42.2. His
motion for appointment of counsel is denied.
      MOTION FOR LEAVE TO APPEAL IFP DENIED; MOTION TO
APPOINT COUNSEL DENIED; APPEAL DISMISSED.




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