IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 MURRAY, 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 to his 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

United States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2012

Lyle W. Cayce

Clerk

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.

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No. 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. 2007).

McCoy argues that the district court erred 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 for more definite statement.” Wesson v. Oglesby, 910 F.2d

278, 281 (5th Cir. 1990) (internal 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,

McCoy was not entitled to a jury trial once it was determined that he failed to

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. 1985).

McCoy also argues that the district court erred in dismissing his deliberate

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

culpability of the defendants was demonstrated by their policies and practices

of regularly delaying his medications, despite his having lodged numerous

administrative complaints on the matter.

McCoy’s allegation 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 evidence that prison 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 serious 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 were deliberately 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 preliminary injunction to ensure that he

timely received his medications. To obtain a preliminary injunction, McCoy was

required to show (1) a substantial likelihood of success on the merits; (2) a

substantial threat of irreparable injury; (3) that the threatened injury outweighs

any damage to the defendant; and (4) that the injunction would be in the public

interest. Harris v. Wilters, 596 F.2d 678, 680 (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 did not abuse its

discretion in denying McCoy’s motion for a preliminary injunction.

McCoy proceeded in forma pauperis in two prior actions in which the

district court dismissed his complaints as frivolous. 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 strike under 28 U.S.C. § 1915(g). Except for cases

involving an imminent danger of serious physical injury, McCoy is barred under

§ 1915(g) from proceeding in forma pauperis in any civil action or appeal filed

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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