* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50313

Summary Calendar

__________________

JAMES B. MITCHELL,

 Plaintiff-Appellant,

versus

VAL VERDE COUNTY JAIL,

 Defendant-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. DR-94-CA-34

- - - - - - - - - -

August 18, 1995

Before GARWOOD, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:*

James B. Mitchell's motion for leave to proceed in forma

pauperis (IFP) in the appeal of summary judgment for Val Verde

County Jail is DENIED. This court may grant leave to proceed IFP

if it finds that the movant raises arguable legal points for

appeal. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). The

movant must also show that he is unable to pay fees or costs. 28

U.S.C. § 1915(d). Mitchell satisfies the economic criterion.
No.95-50313

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Mitchell, however, does not satisfy the nonfrivolous-issue

criterion for IFP. A federal district court may grant summary

judgment "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law." GATX Aircraft Corp. v. M/V COURTNEY LEIGH,

768 F.2d 711, 714 (5th Cir. 1985); FED. R. CIV. P. 56(c). The

standard of appellate review is the same standard as that applied

in the district court. Medlin v. Palmer, 874 F.2d 1085, 1089

(5th Cir. 1989). The record and inferences from the record must

be viewed in the light most favorable to the party opposing the

motion. Id. If the party moving for summary judgment satisfies

his burden of showing no genuine issue of material fact, "the

nonmovant must go beyond the pleadings and designate specific

facts showing that there is a genuine issue for trial." Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc).

Exposure of a prisoner to levels of ETS posing an

unreasonable risk of serious health damage may violate the Eighth

Amendment if the jailers are deliberately indifferent to the

risk. Helling v. McKinney, 113 S. Ct. 2475, 2481 (1993). "The

legal conclusion of `deliberate indifference[]' . . . must rest

on facts clearly evincing `wanton' actions on the part of the

defendants." Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985).

[A] prison official cannot be found liable

under the Eighth Amendment for denying an

inmate humane conditions of confinement

unless the official knows of and disregards
No.95-50313

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an excessive risk to inmate health or safety;

the official must both be aware of facts from

which the inference could be drawn that a

substantial risk of serious harm exists, and

he must also draw the inference.

Farmer v. Brennan, 114 S. Ct. 1970, 1979 (1994). 

Chief Deputy Oscar Gonzalez swore that the jail's airhandling system exchanged the air in each cell nine times per

hour and that the jail met state standards. Mitchell's medical

records indicate that he did not complain to the medical staff

about exposure to ETS. Mitchell concedes that he never

complained about ETS exposure to prison officials. 

The evidence regarding the air-handling system indicates

that ETS in the jail was highly unlikely to reach a level that

would be recognized as unreasonably toxic. Given the airhandling system, Mitchell's failure to complain to prison

officials about ETS exposure in the jail is fatal to his claim. 

Without complaints from Mitchell, jail officials could not have

known about an excessive risk to Mitchell's health. The

defendants have carried their summary judgment burden. Mitchell

has not carried his burden of designating facts showing a

material factual issue. See Little, 37 F.3d at 1075.

Finally, this is at least Mitchell's third frivolous appeal. 

United States v. Mitchell, No. 94-50484 (5th Cir. Feb. 2,

1995)(unpublished); Mitchell v. U.S. Customs Serv., No. 94-50039

(5th Cir. May 18, 1994)(unpublished). We warn Mitchell that

further frivolous appeals will likely result in sanctions against

him.

APPEAL DISMISSED.
No.95-50313

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