Spivey v. Wilson

Case: 19-40885     Document: 00515910009         Page: 1     Date Filed: 06/22/2021




              United States Court of Appeals
                   for the Fifth Circuit                             United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                        June 22, 2021
                                  No. 19-40885
                                                                       Lyle W. Cayce
                                Summary Calendar                            Clerk


   Robert Daniel Spivey,

                                                           Plaintiff—Appellant,

                                       versus

   Joseph Wilson, Individually; Kirk W. Brigance, Individually;
   Chadrick S. Clark, Individually; Mark Duke, Transportation
   Officer (Individually); Loren Joy, Transportation Officer (Individually);
   Tony Rust, Individually,

                                                         Defendants—Appellees.


                  Appeal from the United States District Court
                       for the Eastern District of Texas
                            USDC No. 5:17-CV-94


   Before Davis, Stewart, and Dennis, Circuit Judges.
   Per Curiam:*
          Robert Daniel Spivey, Texas prisoner # 1717631, appeals the summary
   judgment dismissal of his 42 U.S.C. § 1983 lawsuit against several Texas


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-40885        Document: 00515910009           Page: 2    Date Filed: 06/22/2021




                                       No. 19-40885


   Department of Criminal Justice (TDCJ) officials, alleging that they had
   violated his constitutional rights in connection with an assault that occurred
   while he was being transferred from the Telford Unit to the Eastham Unit.
   We review the district court’s summary judgment ruling de novo. Cousin v.
   Small, 325 F.3d 627, 637 (5th Cir. 2003). Summary judgment is appropriate
   “if the movant shows that there is no genuine dispute as to any material fact
   and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
   P. 56(a); see Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir.
   2011).
            If his brief is liberally construed, Spivey argues that the district court
   erred in granting summary judgment and dismissing his claims after denying
   him the discovery he needed to prove his case. He also contends that the
   documents he submitted were sufficient to create a material factual dispute
   precluding summary judgment on his claims that the defendants were
   deliberately indifferent to his safety. However, Spivey does not renew his
   claims that Lieutenant Clark failed to protect him from the assault after
   receiving and ignoring his initial I-60 or that Warden Wilson failed to inform
   and train his staff, nor does he brief any argument challenging the district
   court’s reasons for dismissing those claims. Accordingly, those claims are
   abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
   Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
   1987). Spivey likewise abandons by failing to brief any argument renewing
   his claim that Officer Duke racially discriminated against him. See Yohey, 985
   F.2d at 224-25.
            Additionally, although he renews his failure to protect claims and
   urges that summary judgment was inappropriate because the documents he
   submitted created a material factual dispute, Spivey does not address the
   district court’s conclusion that dismissal was warranted because the
   uncontested medical records established that he suffered no more than a de



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Case: 19-40885      Document: 00515910009           Page: 3     Date Filed: 06/22/2021




                                     No. 19-40885


   minimis injury, a contusion and three small lacerations to the back of the head
   which were treated with Dermabond and Tylenol and for which he neither
   sought nor received any follow up treatment or care. See Siglar v. Hightower,
   112 F.3d 191, 193-94 (5th Cir. 1997). Spivey has therefore abandoned any
   challenge to that dispositive determination. See Yohey, 985 F.2d at 224-25;
   Brinkmann, 813 F.2d at 748. Inasmuch as he conclusionally asserts that
   “Medical l[i]ed” when it said he only had a few cuts and bruises in order to
   corroborate the defendants’ story that he hit his head on a bus window, his
   conclusional assertion does not constitute summary judgment evidence and
   is insufficient to demonstrate a material factual dispute.         See Anderson
   v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Michaels v. Avitech, Inc.,
   202 F.3d 746, 754-55 (5th Cir. 2000). Additionally, Spivey has abandoned by
   failing to brief any challenge to the district court’s alternative basis for
   dismissing the claim, that he failed to allege sufficient facts to overcome the
   defendants’ asserted defense of qualified immunity. See Yohey, 985 F.2d at
   224-25; Brinkmann, 813 F.2d at 748.
          The thrust of Spivey’s appeal is that the district court erred in failing
   to compel the defendants to submit the additional discovery he requested, in
   failing to sanction them for not doing so, and in failing to grant his request for
   additional time to respond to the summary judgment motion until he received
   the requested discovery. He complains that he needed color photographs of
   his injuries and other unspecified documents to prove his claims, and he now
   asserts that the district court purposefully denied him discovery “to stop me
   from proving my case and to help the defendants.”
          Spivey’s assertion that the district court denied his motions to compel
   is factually incorrect. In addition to granting him two extensions of time to
   respond to the summary judgment motion, the district court granted six of
   Spivey’s 12 motions to compel in part, directing the defendants to disclose
   photographs taken of him on the day of the incident, in color if possible, as



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                                     No. 19-40885


   well as the TDCJ policies he requested concerning transportation of inmates
   and the handling of assaults on transport buses, and any information about
   the other assault that occurred on the same bus on November 10, 2016. The
   defendants advised that they had provided Spivey with all existing
   photographs of him, all existing policies concerning the transport of
   offenders, and all existing information concerning the assault on him, and
   they submitted an affidavit stating that there were no color photographs.
   Spivey’s continued assertion that color photographs existed which have been
   hidden or destroyed is wholly conclusional and insufficient to show any abuse
   of discretion on the district court’s part. See Equal Emp’t Opportunity
   Comm’n v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th Cir. 2017); Culwell
   v. City of Fort Worth, 468 F.3d 868, 872 (5th Cir. 2006); see also Int’l
   Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266 (5th Cir. 1991).
          Finally, Spivey argues that the district court abused its discretion in
   refusing to appoint counsel. He contends, as he did below, that he has a low
   IQ with the equivalent of a sixth-grade education, and he asserts for the first
   time that he has a history of mental problems, including paranoid
   schizophrenic episodes requiring hospitalization which precluded him from
   adequately conducting discovery. Because Spivey has not demonstrated
   exceptional circumstances warranting the appointment of counsel, we find
   no abuse of discretion on the district court’s part. See Baranowski v. Hart,
   486 F.3d 112, 126 (5th Cir. 2007); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.
   1987); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
          AFFIRMED.




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