IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30101

Summary Calendar

KEVIN MORGAN,

Plaintiff-Appellant

v.

WINN CORRECTIONAL CENTER; DOCTOR KUPLESKY; KIEFFER; 

CORRECTIONS CORPORATION OF AMERICA; TIMOTHY KEITH,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:13-CV-1987

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Kevin Morgan, Louisiana prisoner # 488677, appeals the district court’s 

dismissal of his 42 U.S.C. § 1983 action pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 

and 1915A as frivolous and for failure to state a claim upon which relief may 

be granted. In his complaint, Morgan alleged that the defendants acted with 

deliberate indifference to his complaints of stomach and digestive problems.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2014

Lyle W. Cayce

Clerk

 

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No. 14-30101

On appeal, Morgan presents six arguments. First, he asserts in a 

general fashion that there is sufficient evidence in the record to show he stated 

claims against the defendants. In support of his assertion, Morgan attempts 

to incorporate by reference the arguments he made in documents filed in the 

district court. His conclusory assertion is insufficient to raise a constitutional 

claim. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002). Moreover, he may 

not incorporate by reference the arguments he made in his district court filings. 

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

inadequately briefed and waived this claim. Id.

Second, Morgan argues that the defendants provided essentially no care 

by prescribing Motrin for his repeated complaints of pain. We decline to 

consider this claim because it is raised for the first time on appeal. See 

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

Third, Morgan contends that his constitutional rights were violated 

when unspecified defendants delayed his medical treatment by requiring him 

to fill out sick call forms to talk to medical personnel, who were then supposed 

to refer him to Dr. Stephen Kuplesky but often never did. We likewise decline 

to consider this claim because Morgan raises it for the first time on appeal. See 

id.

Fourth, Morgan argues that Dr. Kuplesky acted with deliberate 

indifference to his medical needs by failing to take action when treatment 

proved ineffective and that unspecified defendants acted with deliberate 

indifference by knowingly providing easier but less effective treatment. 

Morgan’s conclusional assertions, which express disagreement with the 

treatment ordered by the defendants, are insufficient to raise a constitutional 

claim or challenge the district court’s ruling. See Oliver, 276 F.3d at 741;

Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). 

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Fifth, Morgan contends that the defendants were aware that unspecified 

medications were not helping his abdominal pain but did nothing to treat his 

pain or respond to his deterioration because they were not qualified to treat 

him. We decline to consider this argument because it was not considered by 

the district court in the first instance. See Leverette, 183 F.3d at 342.

Finally, Morgan challenges the denial of appointed counsel in the district 

court and asks this court to appoint counsel or remand for the appointment of 

counsel. Because Morgan has not demonstrated exceptional circumstances 

warranting the appointment of counsel, we find no abuse of discretion and deny 

his requests. Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). 

Morgan additionally seeks leave to submit the district court’s April 4, 2014, 

order affirming the magistrate judge’s denial of appointed counsel. Because 

the order is already part of the appellate record, we deny his request as

unnecessary. 

Our affirmance of the district court’s dismissal counts as one strike 

under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). 

Morgan is cautioned that if he accumulates three strikes, he will not be able to 

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).

AFFIRMED; REQUEST FOR THE APPOINTMENT OF COUNSEL 

DENIED; REQUEST FOR LEAVE TO FILE EXHIBIT DENIED AS 

UNNECESSARY; SANCTION WARNING ISSUED

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