The opinion
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opinion should not be published and is not precedent except under the limited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
2
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
3
Case: 19-40885 Document: 00515910009 Page: 4 Date Filed: 06/22/2021
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.
4