* 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should not be published and is not precedent except under the limited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. 07-11099

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

September 30, 2008

Charles R. Fulbruge III

Clerk
No. 07-11099

2

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
No. 07-11099

3

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

amendmentto correctthe 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 amendmentto his complaintthatthe 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 ofthose claims that Miller did not

raise on appeal or properly brief are affirmed.

VACATED and REMANDED in part; AFFIRMED in part.