### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-40104 Summary Calendar

JAMES BELL MCCOY, SR., Plaintiff-Appellant

v. PAM PACE; Practice Manager; DR. LANETTE LINTHICUM, Director Texas Department of Criminal Justice Medical Services; OWEN MURRA Y, University of Texas Medical Branch Policy Director, Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:11-CV-503

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM: * James Bell McCoy, Sr., Texas prisoner # 1299701, appeals the dismissal under 28 U.S.C. § 1915A(b)(1) of his civil rights suit, in which he alleged that the defendants were deliberately indifferent t o h i s serious medical needs because they implemented or condoned policies that caused routine delays to refills of his prescriptions, which he took for acid reflux, allergies, and back pain. Review of U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 4, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-40104 Document: 00511997200 Page: 1 Date Filed: 09/24/2012No. 12-40104

the dismissal under § 1915A is de novo, and McCoy’s allegations are assumed to be true. Hutchins v. McDaniels , 512 F.3d 193, 195 (5th Cir. 200 7). McCoy argues that the district c o u rt e rr ed in assigning the case to a magistrate judge (MJ) when he did not consent to having his case administered by the same, and that the MJ erred by holding an evidentiary hearing, when he had requested a jury trial. A district court judge may designate a MJ to conduct evidentiary hearings and to propose findings of fact and recommendations for disposition of prisoner petitions challenging conditions of confinement. 28 U.S.C. 636(b)(1)(B). In prisoner civil rights cases, a MJ may conduct a Spears hearing, which “is in the nature of a motion f

o r more definite statement.” Wesson v. Oglesby , 910 F.2d 278, 281 (5th Cir. 1990) (i n t ernal quotation marks and citation omitted). A prisoner does not have to consent to a Spears hearing. Carbe v. Lappin , 492 F.3d 325, 327 (5th Cir. 2007). Here, the MJ did not enter judgment, but merely made

a report and recommendation pursuant to § 636(b)(1)(B). McCoy has not shown

error with assignment of his case to an MJ for a Spears hearing. Further, M cCoy was not entitled to a jury trial once it was determined that he failed t o state a claim on which relief could be granted and that his claim was frivolous. See Spears v. McCotter , 766 F.2d 179, 181-82 (5th Cir. 1 985). McCoy also argues that the district court erred in dismissin g hi s delib er ate indifference claim. He contends that he demonstrated a serious medical need for his medication because the treatment had been recommended by his physicians and he suffers pain when his prescriptions are delayed. McCoy argues that the culp ab i lity of the defendants was demonstrated by their policies and practices of regularly delaying his medications, despite h is having lodged numerous administrative complaints on the matter. McCoy’s alleg a t i o n that the defendants failed to see that he got his prescriptions without any lapses, accepted as true, fails to state a claim

. The prisoner must “submit evidenc e th at p ri s o n officials refused to treat him, ignored
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his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any s e ri o u s medical needs.” Gobert v. Caldwell , 463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks and citation omitted). Further, a delay in treatment does not violate the Eighth Amendment unless the defendants w e r e d eliberately indifferent to a serious medical need and their indifference resulted in substantial harm. Mendoza v. Lynaugh , 989 F.2d 191, 195 (5th Cir. 1993). Even after the Spears hearing, McCoy had not alleged facts that would support a finding that he has suffered substantial harm as a result of the defendants’ deliberate indifference. Dismissal was therefore proper. See Berry v. Brady , 192 F.3d 504, 507-09 (5th Cir. 1999). Last, McCoy argues that the district court erred in denying his motion for

a temporary restraining order or a prel i minary injunction to ensure that he timely received his medications. To obtain a preliminary injunction, McCoy was required to show (1) a sub s t a n ti a l likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that th e threatened injury outweighs any damage to the defendant; and (4) that the injunction would be in the public interest. Harris v. Wilters , 596 F

. 2 d 6 7 8 , 6 8 0 (5th Cir. 1979). McCoy had not shown that he would likely succeed in his civil rights suit or that he was facing

a substantial threat of irreparable injury. The district court di d not abuse its discretion in denying McCoy’s motion for a preliminary injunction. McCoy p r o c e e d ed in forma pauperis in two prior actions in which the district court dismissed his complaints as f rivolous. McCoy v. Wade , 3:05-CV2096- P (N.D. Tex. 2006); McCoy v. Fitzsimmons, 3:08-CV-0061-N (N.D. Tex. 2008). Since McCoy’s complaint did not present any non-frivolous issues, he has accumulated his third s t ri k e u n d er 28 U.S.C. § 1915(g). Except for cases involving an imminent danger of serious physical injury, McCoy is barred under § 1 915(g) from proceeding in forma pauperis in any civil action or appeal fi l e d while he is incarcerated. See Brewster v. Dretke , 587 F.3d 764, 770 (5th Cir.
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2009). He may proceed in subsequent civil cases under the fee provisions of 28 U.S.C. §§ 1911–14. AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED..

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