# Dennis Wayne Wilson v. Enrique M. Barrientos, Terry W. Huntsberry v. Byrd

> Court of Appeals for the Fifth Circuit · April 10, 1991 · 926 F.2d 480

URL: https://www.frixlaw.com/law-library/cases/9481348

## Case

- **Full name:** Dennis Wayne WILSON, Plaintiff-Appellant, v. Enrique M. BARRIENTOS, Et Al., Defendants-Appellees; Terry W. HUNTSBERRY, Plaintiff-Appellant, v. BYRD, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 10, 1991
- **Citations:** 926 F.2d 480; 1991 U.S. App. LEXIS 5970
- **Precedential status:** Published
- **Opinion:** On rehearing by Politz
- **Judges:** Brown, Politz, Johnson
- **Cited by:** 297 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481348

## How later opinions describe it (automated extraction)

- explaining that witnesses at a Spears hearing should be sworn and appropriate cross-examination should be allowed
- noting that Spears hearing testimony is “in the nature of a [Fed. R. Civ. P. 12(e)] motion for more definite statement.”

## Opinion text

ON PETITION FOR REHEARING
April 10, 1991.
POLITZ, Circuit Judge:
The Attorney General of the State of Texas has moved for leave to file an ami-cus curiae petition for rehearing and a like motion to supplement the record on appeal. Because of the special considerations which exist in pro se prisoner civil rights complaints and Spears 1 hearing appeals, we grant these motions. Having done so we have reconsidered the appeals in light of the supplemented record.
On the record as now supplemented, it is apparent that all witnesses were sworn at the beginning of the day’s series of Spears hearings conducted by the magistrate judge. Further, pursuant to an arrangement of long standing between the district court and the Attorney General’s office, the court was furnished with such medical and other prison records as were requested, for use by the complainants] and review by the court in its 28 U.S.C. § 1915 (d) determination about the viability of the complaint. Accordingly, the magistrate judge did not entertain the testimony of unsworn witnesses, nor did she consider records which were not adequately identified or authenticated. Our statement to the contrary in the opinion was incorrect and it is recalled.
We confirm and reinstate our prior opinion 926 F.2d 480 , as it relates to the appropriate procedures to be followed in Spears hearings. We also reinstate our decision *484 vacating and remanding Wilson’s complaint for consideration in light of our intervening decision in Huguet v. Barnett, 900 F.2d 838 (5th Cir.1990), in which we adopted for application in eighth amendment excessive force cases the standard the en banc court announced in Johnson v. Morel, 876 F.2d 477 (5th Cir.1989), for use in fourth amendment arrest cases. The magistrate judge rejected Wilson’s complaint applying pre- Huguet precedents. Finally, the magistrate judge recommended dismissal of Huntsberry’s complaint as frivolous. The district court adopted that recommendation. We affirm that decision.
The dismissal of Huntsberry’s complaint is AFFIRMED.
The dismissal of Wilson’s complaint is VACATED and the matter is REMANDED for consideration in light of Huguet v. Barnett.
In all respects not inconsistent herewith, the original opinion is reinstated.
. Spears v. McCotter, 766 F.2d 179 (5th Cir.1985).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481348. Public record. Not legal advice.