    Case: 14-10554   Document: 00512877214    Page: 1   Date Filed: 12/19/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                              No. 14-10554
                            Summary Calendar
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                                             December 19, 2014
                                                                  Lyle W. Cayce
                                                                       Clerk
RODOLFO ORTEGA, JR.,

                                         Plaintiff−Appellant,

versus

BRAD LIVINGSTON,
Executive Director, TDCJ, in Their Individual and Official Capacity;
JASON HEATON,
Regional V Director, CID, in Their Individual and Official Capacity;
BARRY L. MARTIN, in Their Individual and Official Capacity;
NORVEL ARNOLD,
Senior Warden, Dalhart Unit in Their Individual and Official Capacity;
KENDALL T. RICHERSON, Assistant Warden, Dalhart Unit,
in Their Individual and Official Capacity;
KEITH K. JANUARY, Major, Dalhart Unit,
in Their Individual and Official Capacity;
GARY L. MESSER, Chief of Classifications, Dalhart Unit,,

                                         Defendants−Appellees.




                Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 2:14-CV-82
     Case: 14-10554      Document: 00512877214         Page: 2    Date Filed: 12/19/2014


                                      No. 14-10554

Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *


       Rodolfo Ortega, Jr., Texas prisoner # 1522268, appeals the dismissal of
his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim. See
28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1). Ortega alleged that Texas Department
of Correctional Justice (“TDCJ”) employees Brad Livingston, Jason Heaton,
Barry Martin, Norvel Arnold, Kendall Richerson, and Keith January repeat-
edly canceled outdoor recreation and did not permit Ortega to exercise in the
day room, that Ortega was unable to exercise in his dual-occupancy cell, and
that TDCJ chief of classification Gary Messer did not classify Ortega for a
single-occupancy cell, all in violation of the Eighth Amendment.                   Ortega
asserted that the lack of opportunity to exercise outside his cell interfered with
his treatment for back pain that results from deteriorated spinal discs, arth-
ritis, and bone spurs. Because the lack of exercise prevented such therapy,
Ortega claimed, the dearth of out-of-cell exercise caused him pain, stress, and
fear for his physical safety.
       We review Ortega’s challenge de novo. See Samford v. Dretke, 562 F.3d
674, 678 (5th Cir. 2009). We will uphold the dismissal for failure to state a
claim if, taking Ortega’s “allegations as true, it appears that no relief could be
granted based on [his] alleged facts.” Id. (internal quotation marks and cita-
tion omitted). Because the district court properly dismissed for failure to state
a claim, we do not consider separately whether the complaint was frivolous.
       As to the defendants’ knowledge of medical needs or inmates’ need for
out-of-cell exercise generally, Ortega contends that exercise is a basic human


       * 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.


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                                No. 14-10554

need, that his physician ordered physical therapy generally, and that he filed
offender-medical-request forms that went unheeded. As to the defendants’
actions, Ortega asserts that his prison unit “always cancelled recreation” and
that “on some occasions” all of the defendants cancelled outdoor recreation,
while “on other occasions” they denied him the opportunity to exercise in the
day room. Such vague, conclusional, and inconsistent assertions fail to show
the sort of subjective knowledge of, and wanton disregard for, Ortega’s medical
needs or a risk of serious harm as would state a claim under the Eighth Amend-
ment. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Domino v. TDCJ, 239 F.3d
752, 756 (5th Cir. 2001).
      The judgment is therefore AFFIRMED. Ortega’s motion for appointment
of counsel is DENIED. His motion to proceed in forma pauperis on appeal is
DENIED because the district court has already granted him authorization so
to proceed.




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