IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2008
No. 07-11099
Summary Calendar Charles R. Fulbruge III
Clerk
MARTIN MILTON MILLER, JR.
Plaintiff-Appellant
v.
RICHARD E WATHEN, Warden; DANNY HORTON, Warden; JAMES D
MOONEYHAM, Assistant Warden
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:04-CV-136
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Martin Milton Miller, Texas prisoner # 634502, appeals the dismissal of
his civil rights complaint against officials at the Allred Unit of the Texas
Department of Criminal Justice under 28 U.S.C. § § 1915(e)(2)(B)(ii) for failure
to state a claim. Miller does not argue on appeal, as he did in the district court,
that the defendants violated the Eighth Amendment when they left lights on
during security checks, responded unsatisfactorily to his grievances, and denied
*
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should not be published and is not precedent except under the limited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. 07-11099
him hot meals during an extended lock down. Nor does he argue that the
defendants denied his free speech rights and access to the courts, which he
alleged in his proposed second amended complaint. Those claims are therefore
deemed abandoned. See Summers v. Dretke, 431 F.3d 861, 882 n.12 (5th Cir.
2006). Furthermore, Miller’s argument that the district court’s order that he file
specific facts to support his claims conflicted with FED. R. CIV. P. 8 is unavailing.
See Elliott v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1986); see also Anderson v.
Pasadena Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999).
Miller correctly argues, however, that the district court abused its
discretion when it denied him leave to file his second amended complaint as to
his laundry claim. See Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 245 (5th
Cir.1997). Under FED. R. CIV. P. 15(a), Miller may, with the district court’s
permission, amend his complaint even though he had already amended it once.
See Carroll v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006). Absent
“any apparent or declared reason-such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.-the leave sought
should, as the rules require, [should have been] freely given.” Lowrey, 117 F.3d
at 245.
Miller’s proposed claim that the defendants violated his Eighth
Amendment rights by refusing him constitutionally adequate means by which
to launder his personal clothing was not futile. See Bell Atl. Corp. v. Twombly,
127 S. Ct. 1955, 1965 (2007)); cf. Green v. Ferrell, 801 F.2d 765, 771 (5th Cir.
1986). Moreover, Miller’s motion to file a second amended complaint was not
unduly delayed, dilatory, or the product of bad faith. Miller’s original complaint
was very specific but was rejected because the district court determined that it
was overbroad. Miller used the district court’s form to amend his complaint,
but, as set forth above, the form instructed him to give only a short statement
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No. 07-11099
of his claims with no legal argument. Miller filed his motion to amend less than
a month after defendants filed their motion to dismiss, and he sought the
amendment to correct the deficiencies the defendants pointed out in their motion
to dismiss. Moreover, the defendants do not argue, nor does it appear, that
Miller’s proposed second amended complaint would have unfairly prejudiced
their defense. See Lowery, 117 F.3d at 246. Accordingly, the district court’s
dismissal of Miller’s laundry claim for failure to state a claim was premature and
is therefore vacated. The case is remanded to the district court for further
proceedings on that claim.
Miller’s proposed second amendment to his complaint that the defendants
violated the Americans with Disabilities Act, the Rehabilitation Act, and his
Fourteenth Amendment rights, however, was futile. Miller did not assert that
the defendants’ purpose in denying him a bench in the recreation yard was to
discriminate against people with back problems. See Delano-Pyle v. Victoria
County, Texas, 302 F.3d 567, 574 (5th Cir. 2002). Miller offered no facts to
support his due process claim. See Kinash v. Callahan, 129 F.3d 736, 738 (5th
Cir. 1997).
Although Miller referenced in his brief the denial of hot meals, he did not
offer facts or law to support his claim. This court will not review an issue that
is not adequately briefed. Andrews v. Collins, 21 F.3d 612, 632 (5th Cir. 1994);
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The district court’s dismissal of Miller’s claims regarding the denial of a
bench in the recreation yard and the dismissal of those claims that Miller did not
raise on appeal or properly brief are affirmed.
VACATED and REMANDED in part; AFFIRMED in part.
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