Williams v. Day ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 26, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41696
Summary Calendar
EARL G. WILLIAMS,
Plaintiff-Appellant,
versus
Lieutenant THOMAS R. DAY; UNIVERSITY OF TEXAS MEDICAL
BRANCH GALVESTON TEXAS, Correctional Managed Care,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:03-CV-221
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Earl G. Williams, Texas prisoner # 710963, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint against
*
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this opinion should not be published and is not precedent except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. 05-41696
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Lieutenant Thomas R. Day and the University of Texas Medical Branch
at Galveston (UTMB).
Williams contends that the district court erred when it dismissed
his complaint for failure to state a claim and as frivolous. Because the
district court dismissed Williams’s complaint both as frivolous and for
failure to state a claim, our review is de novo. See Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005).
Viewing the factual allegations in his complaint as true, Williams
failed to state a claim of excessive force against Lt. Day sufficient to
overcome the defense of qualified immunity. Although the Eighth
Amendment guarantees the right to be free from cruel and unusual
punishment, the factual allegations in Williams’s complaint did not
demonstrate that Lt. Day’s conduct was made maliciously with the
intent to cause harm. See Flores v. City of Palacios, 381 F.3d 391,
393-95 (5th Cir. 2004); Hudson v. McMillian, 503 U.S. 1, 6-7 (1992).
Williams also contends that the district court erred when it
dismissed his complaint without providing him an opportunity to
conduct discovery or present evidence in support of his claims.
Because the district court did not err in holding that Williams’s
allegations failed to rise to the level of a constitutional violation or
No. 05-41696
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surmount Lt. Day’s entitlement to qualified immunity, Williams was not
entitled to discovery in the district court. See Jacquez v. Procunier,
801 F.2d 789, 791 (5th Cir. 1986). Further, because the district court
assumed Williams’s factual allegations to be true, there was no need to
provide evidentiary support for those allegations. See
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir.
1993).
Williams also contends that the district court erred when it
denied his motions for the appointment of counsel. Williams failed to
demonstrate the extraordinary circumstances necessary to justify the
appointment of counsel. Therefore, the district court’s implicit denial
of his motions for the appointment of counsel was not an abuse of
discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Finally, aside from a request that Correctional Officer Michelle J.
Woolsey be reinstated as a defendant and conclusional allegations that
the UTMB disposed of his medical records and refused his request for
physical therapy, Williams does not challenge the district court’s
dismissal of his claims against Officer Woolsey or the UTMB. Williams
also does not challenge the denial of his motion for leave to amend his
complaint to add Warden Richard Trinci and Assistant Warden Dirk
No. 05-41696
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Lorimer as defendants or the dismissal of his retaliation claims.
Therefore, these claims are deemed abandoned. See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
Accordingly, the district court’s judgment is AFFIRMED, and
Williams’s motion for the appointment of counsel is DENIED.