IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 14, 2007
No. 05-10508
Summary Calendar Charles R. Fulbruge III
Clerk
CARLOS M MORELAND
Plaintiff-Appellant
v.
JULIE ROSCKO; NFN WILKENS; NFN DURAN; R DUFFY; NFN HAMILTON,
Lieutenant; H WESTON; A EDDLEMAN; JOHN DOE; TEXAS DEPARTMENT
OF CRIMINAL JUSTICE - CORRECTIONAL INSTITUTIONS DIVISION
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:03-CV-10
Before JONES, Chief Judge, REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
Proceeding in forma pauperis (IFP), Carlos M. Moreland, Texas prisoner
# 626567, filed the instant 42 U.S.C. § 1983 complaint. Moreland named as
defendants nurse Julie Roscko, nurse Wilkens, correctional officer Duran,
R. Duffy, Lieutenant Hamilton, H. Weston, A. Eddleman, John Doe, and the
Texas Department of Criminal Justice - Institutional Division (TDCJ-ID).
Moreland alleged that Roscko and Duran refused to give him a single dose of
*
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should not be published and is not precedent except under the limited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. 05-10508
medication for high blood pressure on March 31, 2002, ultimately causing him
to experience painful cardiac symptoms and undergo hospitalization for those
symptoms. These acts, Moreland alleged, constituted deliberate indifference to
his serious medical needs in violation of the Eighth Amendment. After he filed
a grievance regarding the pill incident, Moreland alleged, he was subjected to
harassment and retaliation in the form of a false disciplinary action. Moreland
sought declaratory judgment, compensatory damages, and “special damages” for
the retaliatory actions.
Even assuming that his hospital stay constituted a wanton and
unnecessary infliction of pain under the Eighth Amendment, Moreland does not
allege facts showing that any of the defendants had knowledge that Moreland
would suffer such consequences if he missed one dose of his medication and that
they, therefore, acted with deliberate indifference. See Wilson v. Seiter, 501 U.S.
294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
Morleand’s assertions that the nurses are not entitled to qualified
immunity because they were performing a ministerial function are unavailing.
See Gagne v. City of Galveston, 805 F.2d 558, 559-60 (5th Cir. 1986). The
ministerial duty exception “is extremely narrow in scope.” Gagne, 805 F.2d at
560. Moreland alleges no facts indicating that the law under which Roscko and
Wilkens were acting specified such a narrow range of action as to render their
pill dispensing ministerial. See Gagne, 805 F.2d at 560. Therefore, unless the
nurses’ conduct violated “clearly established statutory or constitutional rights
of which a reasonable person would have known,” the nurses are entitled to
qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). If a
plaintiff asserts the violation of a “clearly established constitutional right,” then
the court determines whether the defendant’s conduct was “objectively
reasonable in light of legal rules clearly established at the time of the incident.”
Siegert v. Gilley, 500 U.S. 226, 231-32, (1991); James v. City of Jackson, 203 F.3d
875, 879 (5th Cir. 2000) (citation and internal quotation marks omitted).
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No. 05-10508
Moreland’s sole assertion that a physician prescribed the medical treatment of
the administration of a daily medication does not render objectively
unreasonable the nurses’ compliance with prison policy requiring that inmates
be standing to receive their medication, with their cell lights on and their
identification available. The district court did not err in its determination that
the nurses were entitled to qualified immunity. See James, 203 F.3d at 879.
To the extent Moreland asserts prison officials conspired to retaliate for
the medication-denial grievance by filing false disciplinary charges against him,
Moreland asserted no facts showing that two or more co-conspirators planned or
formed an agreement with one another to violate his rights, as is required to
state a conspiracy claim. See Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.
1982). To the extent Moreland asserts only retaliation, he alleged no specific
facts evidencing retaliatory intent on the part of Eddleman or other prison
officials. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.1999). Nor did
he allege direct evidence or any chronology of events from which retaliation
might be plausibly inferred. See id. at 325. To the extent Moreland urges a
stand-alone claim of a false disciplinary charge, he has not shown a favorable
termination to the disciplinary proceedings as is required by Woods v. Smith,
60 F.3d 1161, 1165 n.16 (5th Cir. 1995).
Moreland seeks the appointment of appellate counsel. The court is not
required to appoint counsel for an indigent plaintiff on appeal from a denial of
a § 1983 claim unless there exist exceptional circumstances warranting such an
appointment. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); Cooper
v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991) (applying
the standard from Ulmer, 691 F.2d at 212-13, in a motion for appointment of
appellate counsel)). Moreland’s suit may be fairly characterized as a dispute
over a single refusal of a dose of medication and a subsequent disciplinary
action. Moreover, the record shows that Moreland is able to present the factual
bases of his claims and file motions for forms of relief to which he feels he is
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No. 05-10508
entitled. Moreland’s case does not present the exceptional circumstances
necessary for appointment of counsel.
Moreland’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous,
it is dismissed. See 5TH CIR. R. 42.2. Moreland is cautioned that the dismissal
of this appeal as frivolous, and the district court’s dismissal of his complaint,
count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). He is cautioned that if he accumulates three strikes
under § 1915(g), he will be unable to proceed in forma pauperis (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 § 1915(g).
APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING
ISSUED.
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