     Case: 12-30945       Document: 00512196117         Page: 1     Date Filed: 04/03/2013




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

                                                                            FILED
                                                                            April 3, 2013
                                     No. 12-30945
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DONALD HENSLEY, JR.,

                                                  Plaintiff-Appellant

v.

UNKNOWN LANDRY, Lieutenant; UNKNOWN DIXON, Captain (now a
Major); JONATHAN ROUNDTREE, Medical Director,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:11-CV-94


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Donald Hensley, Jr., Louisiana prisoner # 112218, moves for leave to
proceed in forma pauperis (IFP) following the district court’s judgment denying
his motion for summary judgment, granting the defendants’ motion for summary
judgment, and dismissing his 42 U.S.C. § 1983 complaint.
       When, as in this case, a district court certifies that an appeal is not taken
in good faith under 28 U.S.C. § 1915(a)(3), the appellant may either pay the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30945

filing fee or challenge the court’s certification decision. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith “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)
(internal quotation marks and citation omitted). If we uphold the district court’s
certification that the appeal is not taken in good faith, the appellant must pay
the filing fee or, alternatively, we may dismiss the appeal sua sponte under 5th
Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2.
      Hensley has not pursued on appeal any claims against Warden Cain or Dr.
Roundtree, which encompassed his claims of the denial of medical care. Thus,
these claims are deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
      “The 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). If the moving party shows
that the nonmoving party presented insufficient evidence in support of his
allegations, the nonmovant is required to demonstrate the existence of a genuine
issue for trial by coming forward in a timely response in the district court with
specific facts. Jones v. Lowndes County, Miss., 678 F.3d 344, 348 (5th Cir. 2012).
Review is de novo. Nickell v. Beau View of Biloxi, L.L.C, 636 F.3d 752, 754 (5th
Cir. 2011).
      After the deadline for filing his response, Hensley filed affidavits of
inmates Carlin Morgan and Charles Sumber together with an untimely
supplement to his opposition to the defendants’ motion. Hensley argues that
the district court erred in granting Dixon’s motion for summary judgment
because he created a genuine issue of material fact with these untimely
affidavits. Even if we ignore their untimeliness and credit the statements in
these affidavits that Dixon received some complaints about the dressing at the

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                                  No. 12-30945

time that dinner was served on Thanksgiving Day, the affidavits fail to raise a
fact issue as to whether Dixon actually knew that the food presented an
excessive risk of serious harm to the health and safety of Hensley or any other
inmate. The facts do not support a conclusion that Dixon’s failure to investigate
the complaints further at that time was more than negligent conduct. Thus,
Hensley has failed to bring forth sufficient evidence that Dixon acted with a
sufficiently culpable state of mind to support a claim of deliberate indifference.
See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Further, the fact that Hensley
experienced some stomach pain, nausea, and diarrhea for two-three days for
which he received treatment does not show that he was subject to a condition of
confinement that resulted in the denial of the minimal civilized measures of life’s
necessities or the wanton infliction of pain that shocks the conscience. See
Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001).
      Hensley has not come forward with any facts demonstrating that Dixon
or any defendant acted with deliberate indifference to his health and safety or
that he engaged in conduct that resulted in the deprivation of life’s necessities
or the wanton infliction of pain that is repugnant to society. Nor has he raised
any genuine dispute as to any material fact regarding Dixon’s conduct which
precludes a summary judgment as a matter of law in Dixon’s favor. Thus,
summary judgment was appropriate. Fed. R. Civ. P. 56(a).
      There has been no showing by Hensley that the district court erred in
determining that his appeal was not taken in good faith. Because he has not
shown that he will raise a nonfrivolous issue on appeal, Hensley’s motion to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous.
Howard, 707 F.2d at 220; 5th Cir. R. 42.2.




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