United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-10152
Summary Calendar
MARCELINO MARTINEZ,
Plaintiff-Appellant,
versus
FNU LUEVA; Officer FNU GONZALEZ; JOHN DOE,
Parole Officer; FNU GARRISON; FNU ORTIZ; FNU
GARCIA; Warden FNU ANDERSON; BILL CHEATHAM,
SCC; JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
JOHN DOE, SCC; JANE DOE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CV-126
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Marcelino Martinez, Texas prisoner #526628, appeals the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant
to 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A(b)(1), and 42
U.S.C. § 1997e(c)(1)-(2). We review the magistrate judge’s
dismissal de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005).
*
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this opinion should not be published and is not precedent except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. 05-10152
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Martinez argues that “prison officials” denied him access to
courts because they caused Cause No. 5:01-cv-003BG, a civil suit
he filed in the Northern District of Texas, to be voluntarily
dismissed in April 2001. Because the dismissal was without
prejudice, Martinez has failed to show how he was actually
injured by the dismissal or why he could not have refiled the
suit. See Lewis v. Casey, 518 U.S. 343, 351 (1996).
Martinez also argues that the magistrate judge erred in
denying his claim of excessive force on July 7, 2002. The
magistrate judge rejected this excessive force claim after
conducting a Spears** hearing and after reviewing authenticated
prison records. According to the magistrate judge, the records
indicated that Martinez’s injury was self-inflicted and that he
refused medical treatment for the injury.
On appeal, Martinez asserts, inter alia, that the injury was
not self-inflicted and that he did not refuse medical treatment
for the wound. He also asserts that the medical records relied
upon by the magistrate judge in denying his excessive force claim
were false and unauthenticated.
The appellate record does not contain a tape or transcript
of the Spears hearing in this case. In addition, the appellate
record does not contain the prison records relied upon by the
magistrate judge in denying this excessive force claim. Thus,
the appellate record is inadequate for this court to conduct a
**
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
No. 05-10152
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meaningful appellate review of this issue. Accordingly, without
taking any position regarding the propriety of the dismissal of
this claim, we VACATE the judgment of the magistrate judge in
part and REMAND the case to the district court for further
development of the record with respect to this excessive force
claim. See Madison v. Parker, 104 F.3d 765, 769 (5th Cir. 1997).
Martinez argues that he was labeled a snitch by prison
officials so he would be harmed by other inmates, that prison
employees put out a “hit” on him, that an unnamed parole officer
discussed personal details about himself and his family outside
of his cell within hearing distance of inmates who wanted to harm
him, and that prison officials failed to protect him from harm by
refusing to relocate him away from his enemies. The dismissal of
Martinez’s claims of danger from other inmates allegedly created
by prison officials and an unnamed parole officer was proper as
the only physical injuries allegedly suffered in connection with
those claims were self-inflicted. See Geiger, 404 F.3d at 375.
Moreover, to the extent Martinez sought injunctive relief, the
denial of such relief was proper because Martinez has been
transferred out of the Smith Unit and thus, was no longer in any
danger from the personnel or inmates housed there. See id.
The magistrate judge did not abuse her discretion in denying
Martinez’s motions to amend and supplement his complaint, which
included claims against personnel at the Connally Unit of the
TDCJ-CID. See Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242,
No. 05-10152
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245 (5th Cir. 1997); Burns v. Exxon Corp., 158 F.3d 336, 343 (5th
Cir. 1998). Neither did the magistrate judge abuse her
discretion in not appointing counsel for Martinez. See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Martinez’s remaining claims before the magistrate judge have
been abandoned because he fails to mention them entirely or
because they are not adequately briefed. See Hughes v. Johnson,
191 F.3d 607, 613 (5th Cir. 1999); Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993); Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Moreover, to
the extent he argues that he exhausted all of his claims but does
not address the magistrate judge’s alternative dismissal of those
claims on the merits, those claims have been abandoned. Id.
Martinez’s claim that the district court failed to let him
object to the magistrate judge’s findings and conclusions of law
is without merit because Martinez consented to have the case
decided by the magistrate judge and thus, the magistrate judge’s
factual findings and conclusions of law constituted a final
judgment. 28 U.S.C. § 636(c). His claims that, since the
magistrate judge has denied his 42 U.S.C. § 1983 suit, he has
been denied access to courts and that prison officials have used
excessive force against him are raised for the first time on
appeal and will not be considered. Whitehead v. Johnson, 157
F.3d 384, 387-88 (5th Cir. 1998); Theriot v. Parish of Jefferson,
185 F.3d 477, 491 n.26 (5th Cir. 1999).
No. 05-10152
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VACATED AND REMANDED IN PART; AFFIRMED IN PART; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.