United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 1, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41365
Summary Calendar
WILLIS FLOYD WILEY,
Plaintiff-Appellant,
versus
RAYMOND E. THOMPSON, Warden, Beto I Unit; NEAL WEBB,
Asst. Warden, Beto I Unit; GUILLERMO DELAROSA, Captain,
Beto I Unit, in his Individual Capacity; FREDDIE MILTON, JR.,
nurse, University of Texas Medical Branch, in her Individual
Capacity; KENNETH LOVE, Physician, UTMB, in his Individual
Capacity; PRICILLA BUCKHANAN, Nurse, UTMB, in her Individual
Capacity; VERNON B MITCHELL, Lieutenant, Beto I Unit, in his
Individual Capacity; GILBERT ENNIS, Lieutenant, Beto I Unit,
in his Individual Capacity; WILLIAM LOTT, Sargent, Beto I
Unit, in his Individual Capacity; JOE CHILDRESS, Sargent,
Beto I Unit, in his Individual Capacity; CHARLES F. BYRGE, CO
IV, Beto Unit; JUSTIN LATHAM, CO III; MICHAEL T. TEDDER, CO
IV, Beto I Unit; CHRISTOPHER L. BARKER, CO III, Beto I Unit;
KENNETH W. SLATON, CO III, Beto I Unit; CHRISTY M. BERNAS,
Grievance Investigator, Beto I Unit; JEFFERY R BOBBITT,
Administration Segregation Property Officer, Beto I Unit;
CHARLES BRISTOW, CO III, Beto I Unit; MARY BILLUPS, Safety
Officer, Beto I Unit; ROBERT KENNEDY, CO III, Beto I Unit;
ALVIN L. MANN, CO IV, Beto I Unit; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:05-CV-1
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
No. 05-41365
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PER CURIAM:*
Willis Floyd Wiley, Texas prisoner # 753383, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim upon which relief can
be granted. He does not, however, challenge the district court’s
conclusion that he failed to exhaust his claims against some
defendants. He does not challenge the district court’s dismissal
of his claims that officers attempted to have him assassinated in
retaliation for a prior lawsuit filed by Wiley, verbally
threatened him, and planted drugs in his cell. Wiley also does
not argue on appeal that the district court erred in concluding
that defendants Raymond Thompson, Neal Webb, Guillermo Delarosa,
and Vernon Mitchell were not personally involved in the actions
taken against him and that these defendants could not be held
liable under a theory of supervisory liability. As a result, all
of these claims are deemed abandoned. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Wiley’s remaining claim involves his assertion that various
defendants refused to allow him to use a handicapped accessible
shower. He first contends that the magistrate judge erred in
allowing the defendants to file a report pursuant to Martinez v.
Aaron, 570 F.2d 317 (10th Cir. 1978), after the defendants failed
to present evidence at a hearing before the magistrate judge. As
*
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. 05-41365
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this court has adopted the Martinez report as a tool, the
magistrate judge’s actions were not erroneous. See Cay v.
Estelle, 789 F.2d 318, 323 n.4 (5th Cir. 1986), overruled on
other grounds, Denton v. Hernandez, 504 U.S. 25 (1992).
Wiley also asserts that the magistrate judge erred in
failing to appoint him counsel to refute the information provided
by the State in the Martinez report. He has not shown that
exceptional circumstances existed warranting such an appointment.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Consequently, the magistrate judge did not abuse her discretion
in denying Wiley’s request for counsel. See Cupit v. Jones, 835
F.2d 82, 86 (5th Cir. 1987). Likewise, Wiley’s request for
appointment of counsel on appeal is DENIED.
As he did in the district court, Wiley disputes the factual
assertions made in the Martinez report. A Martinez report cannot
be used to resolve disputed material facts if the defendants’
assertions conflict with pleadings or affidavits submitted by the
plaintiff. See Shabazz v. Askins, 980 F.2d 1333, 1334-35 (10th
Cir. 1992); Hendrickson v. Davis, 172 F. App’x 48, 48 (5th Cir.
2006), cert. denied, 127 S. Ct. 969 (2007). A review of the
record and the submissions of the parties reveals that the
Martinez report addressed the accessibility of the entrance to
the shower stall itself, while Wiley appears to be challenging
the entrance to area in which the shower stall is located.
Because it is not clear from the record whether Wiley in fact has
No. 05-41365
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true access to a handicapped accessible shower facility, the
decision of the district court is VACATED in part and REMANDED on
this limited ground only. Moreover, in the district court Wiley
may only proceed against defendants Joe Childress, Charles Byrge,
Charles Bristow, Mary Billups, and Alvin Mann, as these are the
remaining defendants considered by the district court who were
not acting in a supervisory capacity. Although the district
court did not dismiss the claims against defendant William Lott
on supervisory grounds, Wiley alleged that this defendant acted
in a supervisory role regarding his shower access and made verbal
threats against him; as noted above, Wiley has not challenged the
district court’s basis for dismissing these claims.