Case: 10-41077 Document: 00511562919 Page: 1 Date Filed: 08/05/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2011
No. 10-41077
Summary Calendar Lyle W. Cayce
Clerk
ANTHONY MOORE, JR.,
Plaintiff-Appellant
v.
DIRECTOR RICK THALER; WARDEN THOMPSON; WARDEN JOHN R.
WISENER; WARDEN KEVIN R. WHEAT; TANYA M. BLINK;
CORRECTIONAL OFFICER JOSEPH T. MCCALISTER; CAPTAIN STEPHEN
D. FARQUHAR; CAPTAIN BENJAMIN A. JEFFERIES; CORRECTIONAL
OFFICER II DAVID W. GREEN; MAJOR GUILLERMO M. DELAROSA;
NURSE ROSALIE MORTON; PA DOCTOR ED NOLEN; OFFICER JUAN T.
SERVIN; DENTIST MELTON LAWRENCE; OFFICER CHARLOTTE A. SAGE;
OFFICER JACKSON; SUPERVISOR DAN A. GANNON; MARY C. MANCERA,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:10-CV-285
Before BENAVIDES, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-41077 Document: 00511562919 Page: 2 Date Filed: 08/05/2011
No. 10-41077
Anthony Moore Jr., Texas prisoner # 517882, appeals the magistrate
judge’s dismissal for failure to state a claim and as frivolous of his 42 U.S.C.
§ 1983 complaint alleging violations of his constitutional rights by various prison
officers and employees of the Coffield Unit of the Texas Department of
Corrections (TDCJ). Moore argues that the magistrate judge erred in failing to
consider his motion for appointment of counsel and in not conducting a
competency hearing. A § 1983 plaintiff is not entitled to appointment of counsel
absent exceptional circumstances. See Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir.1982) During the Spears1 hearing, the magistrate judge allowed Moore
to explain in detail the bases for his claims and he was able to adequately
address the questions posed to him by the magistrate. Moore demonstrated an
ability to present the issues in his case which were not complex. See Castro
Romero v. Becken, 256 F.3d 349, 353-54 (5th Cir.2001). Thus, the magistrate
judge did not abuse her discretion in denying Moore’s motion for the
appointment of counsel. See Baranowski v. Hart, 486 F.3d 112, 126 (5th
Cir.2007). Nor did the magistrate judge err in failing to conduct a competency
hearing. There was no indication in the record that Moore lacked the mental
capacity to adequately represent himself.
Because the magistrate judge dismissed the complaint pursuant to 28
U.S.C. § 1915A(b)(1), based on frivolousness and for failure to state a claim, the
dismissal is reviewed de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th
Cir.2005). Moore argues on appeal that false evidence was presented and
relevant evidence was not introduced at his disciplinary proceedings in violation
of his due process rights. Because Moore has failed to show that the disciplinary
conviction had been reversed or expunged, the magistrate judge correctly
determined that those claims were barred by Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997). Insofar as
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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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No. 10-41077
he complains about the outcome of his grievances concerning the disciplinary
proceedings, Moore had no “federally protected liberty interest in having his
grievances satisfied to his satisfaction.” See Geiger, 404 F.3d at 374. Thus, the
magistrate judge did not err in dismissing these claims as frivolous or for failure
to state a claim.
Regarding the argument that prison officers conspired to have Moore
placed in administrative segregation and acted in retaliation for his filing
complaints, Moore failed to allege facts showing a chronology of events giving
rise to an inference that prisoner officers acted with such intent. His
conclusional allegations, based solely on his personal beliefs, were not sufficient
to support a valid constitutional claim for conspiracy or retaliation. Marts v.
Hines, 68 F.3d 134, 136 (5th Cir. 1995)(en banc); Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995).
The appellant argues that he attempted to exhaust his grievances
concerning his legal mail and that this claim should be deemed exhausted.
Moore was required to exhaust administrative remedies before filing suit. See
42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 202 (2007); Woodford v. Ngo,
548 U.S. 81, 90 (2006). Moore’s pleadings and the attachments thereto
affirmatively reflect that his failure to exhaust was the result of his own actions.
Thus, the magistrate judge did not err in dismissing the legal mail claim for
failure to exhaust. Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007). Moore
has not disputed the magistrate judge’s determination that he failed to exhaust
his failure-to- protect claim. Thus, he has abandoned that issue on appeal. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Moore has not addressed in his brief his claims concerning the confiscation
of his property, the denial of medical care, his change in custody status, his
placement in segregation in his shorts and t-shirt, and his exposure in
segregation to other conditions constituting cruel and unusual punishment.
Thus, he has abandoned those claims on appeal. See Yohey, 985 F.2d at 224-25.
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Moore has also raised arguments for the first time about inhumane conditions
and conduct that occurs generally in the Texas prison system. These allegations
were not made in Moore’s complaint and would require the determination of
numerous factual issues. Thus, these arguments are not subject to
determination on appeal. Stewart Glass & Mirror, Inc. v. U.S. Auto Glass
Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).
Moore has not raised an issue of arguable merit and, thus, the appeal is
dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983);
5TH CIR. R. 42.2. Both this court’s dismissal of the instant appeal and the
magistrate judge’s dismissal of Moore’s complaint for failure to state a claim and
as frivolous count as strikes for purposes of 18 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Moore is cautioned that once he
accumulates three strikes, he may not proceed in forma pauperis 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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