                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 20, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-51043
                         Conference Calendar



DAVE TODD, III,

                                     Plaintiff-Appellant,

versus

CARL BURNS; A.R. MASSINGILL; KAY SHEELEY,

                                     Defendants-Appellees.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                         USDC No. W-03-CV-26
                        --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Dave Todd, III, Texas prisoner # 902802, has filed a motion

to proceed in forma pauperis (IFP) on appeal challenging the

district court’s certification that his appeal is not taken in

good faith.    See Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir.

1997).   The district court dismissed Todd’s 42 U.S.C. § 1983

complaint and denied permission to proceed IFP based on its




     *
        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that this opinion should not be published and is not precedent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.
                            No. 03-51043
                                 -2-

conclusion that Todd’s claims of negligence failed to state a

claim upon which relief may be granted.

     Todd has failed to address the district court’s conclusion

in his brief.   Therefore, he effectively has waived the only

issue relevant to his entitlement to IFP status on appeal.

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Even if Todd had briefed this issue, we conclude that an appeal

would be frivolous.    To the extent that the defendants’ conduct

was negligent, the district court correctly held that negligence

claims are not cognizable in a 42 U.S.C. § 1983 complaint.

See County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998).

To the extent that Todd alleges that the defendants’ conduct

amounted to deliberate indifference to an unsafe working

condition, he has not alleged facts that would show that prison

officials were aware of an “excessive risk” that the machinery

would fall and injure someone or that they deliberately

disregarded that risk.    See Farmer v. Brennan, 511 U.S. 825, 837

(1994).

     The district court’s certification that Todd’s appeal is not

taken in good faith is upheld, his motion for IFP is DENIED, and

this appeal is DISMISSED AS FRIVOLOUS.     See Baugh, 117 F.3d at

202 and n.24; 5TH CIR. R. 42.2.   Todd’s motion for appointment of

counsel also is DENIED.    See Ulmer v. Chancellor, 691 F.2d 209,

212 (5th Cir. 1982).   The dismissal of Todd’s complaint in the

district court and the dismissal of this appeal count as
                           No. 03-51043
                                -3-

“strikes” for the purposes of 28 U.S.C. § 1915(g).    See Adepegba

v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).   We caution Todd

that once he accumulates three strikes, he may not proceed IFP in

any civil action or appeal filed while he is incarcerated or

detained in any facility unless he is under imminent danger of

serious physical injury.   See 28 U.S.C. § 1915(g).

     IFP DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL DISMISSED;

SANCTION WARNING ISSUED.
