* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10508

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

November 14, 2007

Charles R. Fulbruge III

Clerk
No. 05-10508

2

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).
No. 05-10508

3

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, 691F.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
No. 05-10508

4

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.