                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                              May 1, 2007
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                          No. 05-41365
                        Summary Calendar


WILLIS FLOYD WILEY,

                                   Plaintiff-Appellant,

versus

RAYMOND E. THOMPSON, Warden, Beto I Unit; NEAL WEBB,
Asst. Warden, Beto I Unit; GUILLERMO DELAROSA, Captain,
Beto I Unit, in his Individual Capacity; FREDDIE MILTON, JR.,
nurse, University of Texas Medical Branch, in her Individual
Capacity; KENNETH LOVE, Physician, UTMB, in his Individual
Capacity; PRICILLA BUCKHANAN, Nurse, UTMB, in her Individual
Capacity; VERNON B MITCHELL, Lieutenant, Beto I Unit, in his
Individual Capacity; GILBERT ENNIS, Lieutenant, Beto I Unit,
in his Individual Capacity; WILLIAM LOTT, Sargent, Beto I
Unit, in his Individual Capacity; JOE CHILDRESS, Sargent,
Beto I Unit, in his Individual Capacity; CHARLES F. BYRGE, CO
IV, Beto Unit; JUSTIN LATHAM, CO III; MICHAEL T. TEDDER, CO
IV, Beto I Unit; CHRISTOPHER L. BARKER, CO III, Beto I Unit;
KENNETH W. SLATON, CO III, Beto I Unit; CHRISTY M. BERNAS,
Grievance Investigator, Beto I Unit; JEFFERY R BOBBITT,
Administration Segregation Property Officer, Beto I Unit;
CHARLES BRISTOW, CO III, Beto I Unit; MARY BILLUPS, Safety
Officer, Beto I Unit; ROBERT KENNEDY, CO III, Beto I Unit;
ALVIN L. MANN, CO IV, Beto I Unit; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,

                                   Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 6:05-CV-1
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
                            No. 05-41365
                                 -2-

PER CURIAM:*

     Willis Floyd Wiley, Texas prisoner # 753383, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint as

frivolous and for failure to state a claim upon which relief can

be granted.    He does not, however, challenge the district court’s

conclusion that he failed to exhaust his claims against some

defendants.    He does not challenge the district court’s dismissal

of his claims that officers attempted to have him assassinated in

retaliation for a prior lawsuit filed by Wiley, verbally

threatened him, and planted drugs in his cell.     Wiley also does

not argue on appeal that the district court erred in concluding

that defendants Raymond Thompson, Neal Webb, Guillermo Delarosa,

and Vernon Mitchell were not personally involved in the actions

taken against him and that these defendants could not be held

liable under a theory of supervisory liability.     As a result, all

of these claims are deemed abandoned.      See Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

     Wiley’s remaining claim involves his assertion that various

defendants refused to allow him to use a handicapped accessible

shower.   He first contends that the magistrate judge erred in

allowing the defendants to file a report pursuant to Martinez v.

Aaron, 570 F.2d 317 (10th Cir. 1978), after the defendants failed

to present evidence at a hearing before the magistrate judge.        As


     *
       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. 05-41365
                                -3-

this court has adopted the Martinez report as a tool, the

magistrate judge’s actions were not erroneous.   See Cay v.

Estelle, 789 F.2d 318, 323 n.4 (5th Cir. 1986), overruled on

other grounds, Denton v. Hernandez, 504 U.S. 25 (1992).

     Wiley also asserts that the magistrate judge erred in

failing to appoint him counsel to refute the information provided

by the State in the Martinez report.   He has not shown that

exceptional circumstances existed warranting such an appointment.

See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

Consequently, the magistrate judge did not abuse her discretion

in denying Wiley’s request for counsel.   See Cupit v. Jones, 835

F.2d 82, 86 (5th Cir. 1987).   Likewise, Wiley’s request for

appointment of counsel on appeal is DENIED.

     As he did in the district court, Wiley disputes the factual

assertions made in the Martinez report.   A Martinez report cannot

be used to resolve disputed material facts if the defendants’

assertions conflict with pleadings or affidavits submitted by the

plaintiff.   See Shabazz v. Askins, 980 F.2d 1333, 1334-35 (10th

Cir. 1992); Hendrickson v. Davis, 172 F. App’x 48, 48 (5th Cir.

2006), cert. denied, 127 S. Ct. 969 (2007).   A review of the

record and the submissions of the parties reveals that the

Martinez report addressed the accessibility of the entrance to

the shower stall itself, while Wiley appears to be challenging

the entrance to area in which the shower stall is located.

Because it is not clear from the record whether Wiley in fact has
                            No. 05-41365
                                 -4-

true access to a handicapped accessible shower facility, the

decision of the district court is VACATED in part and REMANDED on

this limited ground only.   Moreover, in the district court Wiley

may only proceed against defendants Joe Childress, Charles Byrge,

Charles Bristow, Mary Billups, and Alvin Mann, as these are the

remaining defendants considered by the district court who were

not acting in a supervisory capacity.      Although the district

court did not dismiss the claims against defendant William Lott

on supervisory grounds, Wiley alleged that this defendant acted

in a supervisory role regarding his shower access and made verbal

threats against him; as noted above, Wiley has not challenged the

district court’s basis for dismissing these claims.
