*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opinion should not be published and is not precedent except under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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-40289

Summary Calendar

 

WENDELL M. ROBERSON,

Plaintiff-Appellant,

versus

WEXFORD HEALTH SERVICES, INC.; LORA H. SHAW, LVN;

DOES, 1 THROUGH 10, Unknown Defendants, Inclusive,

Defendants-Appellees.

 

Appeal from the United States District Court for the

Southern District of Texas

(C-96-CA-411)

 

December 31, 1997

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*

PER CURIAM:

Wendell M. Roberson, Texas inmate #443120, proceeding pro se

and in forma pauperis (IFP), appeals the dismissal of his civil

rights lawsuit against Wexford Health Services, Inc., Nurse Lora

Shaw, Roche Biomedical Laboratories, and other unknown defendants.
1Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2

Roberson alleged in the district court that the defendants forced

him to give blood for testing, defamed him by publishing false

positive results of the blood test, and delayed in providing the

results of a blood test. Roberson alleged that the defendants

conspired to use him for medical experimentation and violated his

constitutional rights to due process, to be free from unreasonable

searches, to privacy, and to assembly. Roberson also raised

numerous purported causes of action under state law.

Following a Spears1 hearing, the district court dismissed all

of Roberson’s claims with prejudice, as frivolous, pursuant to 28

U.S.C. § 1915(d), now section 1915(e)(2)(B)(i). The district court

determined that Roberson’s factual allegations did not state a

constitutional violation.

On appeal, Roberson fails to reassert his claims that the

defendants violated his right of assembly and that the defendants

intentionally gave him false positive blood test results. Roberson

has abandoned these claims by failing to assert them in this Court.

See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987) (issues not asserted on appeal are abandoned).

Also, by failing to brief properly his claim that the defendants

violated his Fourth Amendment rights, Roberson has abandoned that

claim as well. See Evans v. City of Marlin, Texas, 986 F.2d 104,

106 n.1 (5th Cir. 1993) (issues not raised or briefed are
3

considered abandoned); Yohey v. Collins, 985 F.2d 222, 224-25 (5th

Cir. 1993) (party may not adopt previously filed arguments by

reference).

Roberson’s contention that his case was dismissed on summary

judgment is erroneous. The district court dismissed his case under

section 1915(e)(2)(B)(i). Roberson was notified that the Spears

hearing would involve the presentation of evidence. Roberson was

afforded a thorough Spears hearing; he has not shown that the

district court erred by failing to allow him to further develop his

claims factually. See Spears, 766 F.2d at 181-82 (purpose of

Spears hearing is to allow a pro se plaintiff to develop his

allegations factually so district court can determined whether

plaintiff has alleged an arguable constitutional claim).

Roberson is mistaken in his contention that the district court

cannot dismiss a 42 U.S.C. § 1983 lawsuit if part of the filing fee

has been paid. Section 1915(e)(2) provides that notwithstanding

the payment of any filing fee or a portion thereof, the district

court shall dismiss cases, at any time, that are determined to be

frivolous or that fail to state a claim.

Roberson lacks standing to challenge the alleged use of

inmates for medical experimentation. See Wendt v. Lynaugh, 841

F.2d 619, 619 n.1 (5th Cir. 1988) (inmate had no standing to assert

claim that some other prisoners were being forced to work beyond

their physical capabilities). Roberson’s conclusional allegations
4

that the defendants conspired to use him for medical

experimentation do not support an action under section 1983. See

Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992).

The district court’s denial of Roberson’s claims that the

defendants delayed in providing medical treatment, misdiagnosed him

by reporting to him a false positive blood test result, defamed him

by publishing his false positive blood test result, and invaded his

privacy by forcing him to give blood is affirmed for essentially

the reasons stated by the district court. See Roberson v. Wexford

Health Services, Inc., No. C-96-CA-411 (S.D. Tex. Dec. 19, 1996).

The district court properly refused to exercise supplemental

jurisdiction over Roberson’s state law claims. 28 U.S.C. §

1367(c)(3); Rhyne v. Henderson County, 973 F.3d 386, 395 (5th Cir.

1992). However, the judgment of the district court will be amended

to dismiss Roberson’s state law claims without prejudice. See

Hamill v. Wright, 870 F.2d 1032, 1038 (5th Cir. 1989) (modifying

dismissal of state law claim to be without prejudice, except as to

filing in federal court). The judgment is hereby modified

accordingly.

The district court’s dismissal with prejudice of Roberson’s

federal claims was proper because Roberson’s allegations could not

be cured by amendment. See Graves v. Hampton, 1 F.3d 315, 318-19

(5th Cir. 1993) (if the allegations in the complaint are legally or

factually insufficient and cannot be cured by an amendment, an IFP
5

dismissal may be with prejudice).

The judgment is MODIFIED to be a dismissal without prejudice

as to the state law claims only; the dismissal with prejudice of

all other claims is affirmed without modification. As so modified,

the judgment is AFFIRMED.