IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40289
Summary Calendar
WENDELL M. ROBERSON,
Plaintiff-Appellant,
versus
WEXFORD HEALTH SERVICES, INC.; LORA H. SHAW, LVN;
DOES, 1 THROUGH 10, Unknown Defendants, Inclusive,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
(C-96-CA-411)
December 31, 1997
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*
PER CURIAM:
Wendell M. Roberson, Texas inmate #443120, proceeding pro se
and in forma pauperis (IFP), appeals the dismissal of his civil
rights lawsuit against Wexford Health Services, Inc., Nurse Lora
Shaw, Roche Biomedical Laboratories, and other unknown defendants.
*
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opinion should not be published and is not precedent except under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.
Roberson alleged in the district court that the defendants forced
him to give blood for testing, defamed him by publishing false
positive results of the blood test, and delayed in providing the
results of a blood test. Roberson alleged that the defendants
conspired to use him for medical experimentation and violated his
constitutional rights to due process, to be free from unreasonable
searches, to privacy, and to assembly. Roberson also raised
numerous purported causes of action under state law.
Following a Spears1 hearing, the district court dismissed all
of Roberson’s claims with prejudice, as frivolous, pursuant to 28
U.S.C. § 1915(d), now section 1915(e)(2)(B)(i). The district court
determined that Roberson’s factual allegations did not state a
constitutional violation.
On appeal, Roberson fails to reassert his claims that the
defendants violated his right of assembly and that the defendants
intentionally gave him false positive blood test results. Roberson
has abandoned these claims by failing to assert them in this Court.
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987) (issues not asserted on appeal are abandoned).
Also, by failing to brief properly his claim that the defendants
violated his Fourth Amendment rights, Roberson has abandoned that
claim as well. See Evans v. City of Marlin, Texas, 986 F.2d 104,
106 n.1 (5th Cir. 1993) (issues not raised or briefed are
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
considered abandoned); Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993) (party may not adopt previously filed arguments by
reference).
Roberson’s contention that his case was dismissed on summary
judgment is erroneous. The district court dismissed his case under
section 1915(e)(2)(B)(i). Roberson was notified that the Spears
hearing would involve the presentation of evidence. Roberson was
afforded a thorough Spears hearing; he has not shown that the
district court erred by failing to allow him to further develop his
claims factually. See Spears, 766 F.2d at 181-82 (purpose of
Spears hearing is to allow a pro se plaintiff to develop his
allegations factually so district court can determined whether
plaintiff has alleged an arguable constitutional claim).
Roberson is mistaken in his contention that the district court
cannot dismiss a 42 U.S.C. § 1983 lawsuit if part of the filing fee
has been paid. Section 1915(e)(2) provides that notwithstanding
the payment of any filing fee or a portion thereof, the district
court shall dismiss cases, at any time, that are determined to be
frivolous or that fail to state a claim.
Roberson lacks standing to challenge the alleged use of
inmates for medical experimentation. See Wendt v. Lynaugh, 841
F.2d 619, 619 n.1 (5th Cir. 1988) (inmate had no standing to assert
claim that some other prisoners were being forced to work beyond
their physical capabilities). Roberson’s conclusional allegations
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that the defendants conspired to use him for medical
experimentation do not support an action under section 1983. See
Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992).
The district court’s denial of Roberson’s claims that the
defendants delayed in providing medical treatment, misdiagnosed him
by reporting to him a false positive blood test result, defamed him
by publishing his false positive blood test result, and invaded his
privacy by forcing him to give blood is affirmed for essentially
the reasons stated by the district court. See Roberson v. Wexford
Health Services, Inc., No. C-96-CA-411 (S.D. Tex. Dec. 19, 1996).
The district court properly refused to exercise supplemental
jurisdiction over Roberson’s state law claims. 28 U.S.C. §
1367(c)(3); Rhyne v. Henderson County, 973 F.3d 386, 395 (5th Cir.
1992). However, the judgment of the district court will be amended
to dismiss Roberson’s state law claims without prejudice. See
Hamill v. Wright, 870 F.2d 1032, 1038 (5th Cir. 1989) (modifying
dismissal of state law claim to be without prejudice, except as to
filing in federal court). The judgment is hereby modified
accordingly.
The district court’s dismissal with prejudice of Roberson’s
federal claims was proper because Roberson’s allegations could not
be cured by amendment. See Graves v. Hampton, 1 F.3d 315, 318-19
(5th Cir. 1993) (if the allegations in the complaint are legally or
factually insufficient and cannot be cured by an amendment, an IFP
4
dismissal may be with prejudice).
The judgment is MODIFIED to be a dismissal without prejudice
as to the state law claims only; the dismissal with prejudice of
all other claims is affirmed without modification. As so modified,
the judgment is AFFIRMED.
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