IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-41077

Summary Calendar

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; DENTISTMELTON 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:*

United States Court of Appeals

Fifth Circuit

F I L E D

August 5, 2011

Lyle W. Cayce

Clerk

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: 1 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 Spears hearing, the magistrate judge allowed Moore 1

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

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 1

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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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