Kevin Stafford v. Eddie Lange, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [16-50235 Dismissed as Frivolous] Judge: PRO, Judge: JWE, Judge: GJC. Mandate pull date is 05/02/2017; denying motion to proceed IFP filed by Appellant Mr. Kevin L. Stafford [8219670-2] [16-50235]

Case: 16-50235

Document: 00513947448

Page: 1

Date Filed: 04/11/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-50235

United States Court of Appeals
Fifth Circuit

FILED
April 11, 2017
Lyle W. Cayce
Clerk

KEVIN L. STAFFORD,
Plaintiff-Appellant
v.

EDDIE LANGE, Sheriff; NANCY BOTKINS; DOCTOR FNU SMITH,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:14-CV-463
Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Kevin L. Stafford, Texas prisoner # 234853, moves for leave to proceed
in forma pauperis (IFP) on appeal. He filed this 42 U.S.C. § 1983 action against
Sheriff Eddie Lange of the Bell County Law Enforcement Center, Nancy
Botkin, the head administrator at the Bell County Law Enforcement Center,
and Dr. Glen Smith, of the Bell County Law Enforcement Center’s Medical
Department. Stafford alleged that Dr. Smith was negligent in the medical

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50235
treatment of his infected foot, and that Lange and Botkin were responsible for
the negligent acts of their employees.
The district court granted the defendants’ motions to dismiss Stafford’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. The district court concluded that Stafford had failed to state a
claim for the denial of medical care, that the facts did not rise to the level of
deliberate indifference to serious medical needs, and that he had failed to
allege any facts which would show liability on the part of Lange or Botkin. The
district court denied Stafford’s motion to proceed IFP on appeal, certifying that
his appeal was not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and
Fed. R. App. P. 24(a)(3).
By moving to proceed IFP, Stafford is challenging 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). 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) (citation omitted). We may dismiss the appeal under 5th Circuit Rule
42.2 if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2.
Stafford does not challenge the district court’s reasons for dismissing his
complaint or denying him leave to proceed IFP on appeal. Pro se briefs are
afforded liberal construction. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). Nevertheless, when an appellant fails to identify any error in the
district court’s analysis, it is the same as if the appellant had not appealed that
issue. Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987). Because Stafford has failed to challenge any legal aspect of the
district court’s disposition of his complaint or the certification that his appeal
is not taken in good faith, he has abandoned the critical issues of his appeal.

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Id. Thus, the appeal lacks arguable merit and is therefore frivolous. See
Howard, 707 F.2d at 220. Accordingly, Stafford’s motion for leave to proceed
IFP on appeal 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.

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