                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 27, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-11037
                          Summary Calendar


MICHAEL SCOTT BUTLER,

                                    Plaintiff-Appellant,

versus

JOHN COLE; BRIAN MUIRHEAD; WILLIAM BURTON; THOMAS BURTON; MARY
WILLEY; CHERYL BERGER; TIM CARROLL; KELLI WARD; ROBERT TREON;
RICHARD WATHEN; JAMES MOONEYHAM; RAYMOND RAMSEY; KENNETH BRIGHT;
HERMAN WESTON; TOMMY NORWOOD; STEVE PATTY; BRUCE SPERRY; INTERNAL
AFFAIRS DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION; JOHN GILBERT; ERIC MORGAN; SCOTT APPLE;
PAMELA PENCE; NFN WALLACE, Correctional Officer; SUSAN
SCHUMACHER; MARK ADKINS,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 7:01-CV-168-R
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Michael Scott Butler, Texas prisoner #574009, moves for

leave to proceed in forma pauperis (IFP) on appeal following the

certification that his appeal was taken in bad faith pursuant to

28 U.S.C. § 1915(a)(3).   Butler moves for appointment of counsel

on appeal; his motion for appointment of counsel is DENIED.        The

     *
        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that this opinion should not be published and is not precedent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. 03-11037
                                -2-

district court dismissed all but one of Butler’s claims against

all defendants except Sgt. Eric Morgan as frivolous pursuant to

28 U.S.C. § 1915(e)(2)(B)(i), then later granted summary judgment

on the remaining claim against Sgt. Morgan and dismissed that

claim as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

     Butler contends that the district court erred by denying his

requests for appointment of counsel; that various defendants

retaliated against him for filing grievances and writing to the

warden; that his disciplinary hearings violated the Due Process

Clause; that the district court erred by granting Sgt. Morgan’s

summary judgment motion before allowing him discovery; that the

district court erred by granting Sgt. Morgan leave to file an

out-of-time summary judgment motion; that the district court

erred by failing to appoint an expert medical witness on his

behalf; that the district court erred by granting summary

judgment on his excessive-force claim against Sgt. Morgan; and

that various defendants failed to stop Sgt. Morgan from using

excessive force.   Butler’s contentions are unavailing.

     First, because Butler’s action did not present exceptional

circumstances, the denial of his requests for appointment of

counsel was not an abuse of discretion.     Jackson v. Dallas Police

Dep’t, 811 F.2d 260, 261 (5th Cir. 1986).    Second, Butler’s

pleadings and his prison grievances indicated that the defendants

accused of writing retaliatory disciplinary reports were not

motivated by retaliatory animus.   See Tighe v. Wall, 100 F.3d 41,
                             No. 03-11037
                                  -3-

42 (5th Cir. 1996).   Butler has failed to brief his remaining

retaliation contentions.    Brinkmann v. Dallas County Deputy

Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).       Third, no

protected liberty interests were implicated in Butler’s

disciplinary hearings.     See Sandin v. Conner, 515 U.S. 472, 484

(1995); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000).

Fourth, the failure to grant Butler’s discovery motions and his

expert-witness motion was not an abuse of discretion.       See

Pedraza v. Jones, 71 F.3d 194, 196-97 n.5 (5th Cir. 1995);

Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990).

     Fifth, the summary judgment evidence indicated that the

injuries arising from Sgt. Morgan’s use of force against Butler

were de minimis and, therefore, did not violate the Eighth

Amendment.   See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).

Butler had been seen several times for a shoulder injury before

the July 13, 2001, use of force.    The prison medical staff

believed that the shoulder separation about which Butler

complained after the use of force was secondary to Butler’s prior

injury.   The medical records indicated that Butler complained

about blurry vision only once, in August 2001, nearly two months

after the altercation with Sgt. Morgan.       Finally, Dr. Potter

reviewed the medical records and opined that any injuries arising

from the use of force were de minimis.

     The summary judgment evidence indicates no genuine issues of

material fact.   See FED. R. CIV. P. 56(c).    Moreover, the evidence
                            No. 03-11037
                                 -4-

indicates that Butler’s excessive-force claim has no arguable

basis in fact or law.    See 28 U.S.C. § 1915(e)(2)(B)(i).   The

district court did not err by granting summary judgment and

dismissing the claim as frivolous.

     Butler’s contentions against other defendants regarding the

use of force by Sgt. Morgan are derivative of the contentions

against Sgt. Morgan.    Because Butler has failed to show that Sgt.

Morgan violated his constitutional rights, he has failed to show

that other defendants failed to stop Sgt. Morgan from violating

his rights.

     Butler’s appeal is without arguable merit and is frivolous.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).    Butler’s

IFP motion is denied and the appeal is dismissed.   5TH CIR.

R. 42.2.   The district court’s dismissal of Butler’s claims as

frivolous and this court’s dismissal of the appeal count as two

strikes against Butler for purposes of 28 U.S.C. § 1915(g).

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Butler is warned that the dismissal of his complaint counts as a

strike for purposes of 28 U.S.C. § 1915(g), that the dismissal of

his appeal counts as a second strike, and that when he

accumulates three strikes he will not be allowed to proceed IFP
                          No. 03-11037
                               -5-

in any civil action or appeal unless he is “under imminent danger

of serious physical injury.”   28 U.S.C. § 1915(g).

     IFP DENIED; MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL

DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
