United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT April 7, 2004
Charles R. Fulbruge III
Clerk
No. 03-10240
Summary Calendar
OSCAR RUIZ,
Plaintiff-Appellant,
versus
JOSEPH K. PRICE; DANNY CASTILLO; STEVEN RICH; TED MOORE;
STEVEN J. CHENEY; LEAH D. GIESER,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(2:01-CV-00301)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Oscar Ruiz, Texas prisoner #766772, proceeding pro se, appeals
the judgment, based on a jury verdict, in favor of Captain Moore
and Officers Castillo, Cheney, and Gieser in his 42 U.S.C. § 1983
action. He alleged: defendants failed to follow prison procedure
with regard to conducting showers and were deliberately indifferent
to his safety; and, as a result, he was attacked in the shower area
of his unit by fellow inmates.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Ruiz does not contend the district court erred in dismissing
the claims against Wardens Price and Rich. Nor does he contend the
court erred in dismissing the claims against Captain Moore and
Officers Castillo, Cheney, and Gieser in their official capacities.
And, he merely lists as an issue whether the district court erred
in failing to apply the liberal-construction standard in Haines v.
Kerner, 404 U.S. 519, 520 (1972). Ruiz is deemed to have abandoned
these issues on appeal. Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993).
The district court did not abuse its discretion in denying
Ruiz’s motion for appointment of counsel. Jackson v. Cain, 864
F.2d 1235, 1242 (5th Cir. 1989). Ruiz failed to demonstrate any
exceptional circumstances warranting it. Richardson v. Henry, 902
F.2d 414, 417 (5th Cir. 1990). Moreover, as evidenced by his
motions and pleadings and his ability to question witnesses and
present evidence, he was able to adequately prosecute his claims.
Ruiz contends the district court erred in denying his request
to subpoena Officer Kimball and other potential witnesses. This
contention is conclusional. He does not state what Officer Kimball
or the other witnesses would have testified to or how their
nonappearance affected his trial. Cupit v. Jones, 835 F.2d 82, 86-
87 (5th Cir. 1987)
Ruiz claims the trial judge allowed the defense to submit
evidence that gave the jury the impression that he deserved to be
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attacked because he was a gang member. This contention is
conclusional. Ruiz does not identify the evidence and provides no
argument other than stating the issue. Inadequately briefed issues
are deemed abandoned. See Woods v. Cockrell, 307 F.3d 353, 357
(5th Cir. 2002).
Ruiz also complains that the trial judge did not aid him in
admitting exhibits and failed to give him the same amount of time
for closing arguments as the defense. This contention is also
conclusional. He does not state what exhibits he could not
introduce into evidence and fails to state how the exhibits would
have changed the outcome of the proceeding. Nor does he state what
further argument he would have made had he been given additional
time. The issue is therefore abandoned. See Id.
Ruiz maintains that the district court abused its discretion
in denying his new trial motion. Ruiz does not present any
coherent argument that the jury’s verdict with regard to Officer
Castillo was against the great weight of the evidence. He merely
avers that Officer Castillo was present at the unit at the time of
the attack. This is insufficient to establish relief under 42
U.S.C. § 1983. Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995).
To the extent that Ruiz avers that Officer Castillo failed to
intervene and stop the attack, there was trial testimony that
prison officers should not attempt to single-handedly break up a
fight, but should call for backup (which was done in this case).
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As is clear from the evidence at trial, any violation of the prison
shower policy which precipitated the attack was the result of
negligence and did not rise to the level of deliberate
indifference. See Davidson v. Cannon, 474 U.S. 344, 347-48
(1986); Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). The
district court did not abuse its discretion. Polanco v. City of
Austin, Tex., 78 F.3d 968, 980-81 (5th Cir. 1996).
Nor did it abuse its discretion in denying Ruiz’s motion for
a preliminary injunction in which he requested greater access to
legal materials. Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th
Cir. 1991). Ruiz failed to show a substantial likelihood of
success on the merits.
AFFIRMED
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