IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40588

Summary Calendar

JAVIER YBARRA,

Plaintiff-Appellant

v.

DEBORAH HURLEY, Grievance Investigator III; CHAD WAKEFIELD,

Lieutenant; KENNETH MILLER, Correctional Officer III; SERGIO SANTANA,

Correctional Officer II; WALID HAMOUDI, Medical Director,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:09-CV-212

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Javier Ybarra, Texas prisoner # 775707, appeals from the district court’s

dismissal of his civil rights complaint as frivolous and for failure to state a claim.

See 28 U.S.C. § 1915A. Ybarra contends that (1) the Lufkin Division, Eastern

District of Texas, erroneously transferred the cause of action to the Tyler

Division, Eastern District of Texas, and he did not consent to the magistrate

United States Court of Appeals

Fifth Circuit

F I L E D

March 3, 2011

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. 10-40588

judge adjudicating his complaint, (2) he was entitled to a jury trial in light of his

request for a jury trial, (3) the district court erred in dismissing his complaint

“in conjunction with” dismissing his complaint in another cause of action, Ybarra

v. Meador, identified by civil action no. 9:09-CV-213, (4) the district court abused

its discretion in denying him leave to amend his complaint, (5) the district court

abused its discretion in denying his motion for the appointment of counsel, and

(6) the magistrate judge abused her discretion in refusing to require the

defendants to testify at the Spears hearing and, instead, in allowing others to

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testify.

The record does not reflect that the cause of action was transferred from

the Lufkin Division to the Tyler Division, as Ybarra asserts. Rather, the district

court properly referred the case to the magistrate judge pursuant to 28 U.S.C.

§ 636(b). See Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). Moreover, the

magistrate judge did not enter judgment pursuant to § 636(c), which requires

consent of the parties, but only made a recommendation pursuant to

§ 636(b)(1)(B). Further, Ybarra was not entitled to a trial, jury or otherwise,

once his claims were determined to be frivolous. See Spears, 766 F.2d at 181-82.

To the extent that Ybarra contends that the magistrate judge abused her

discretion in conducting a single Spears in his two civil rights actions, Ybarra

has not shown that the magistrate judge abused her discretion, especially since

the claims were partly intertwined. See Wilson v. Barrientos, 926 F.2d 480, 483

(5th Cir. 1991).

We also reject Ybarra’s assertion that the district court erred in denying

his motion to amend. In general, it is not proper for a district court to dismiss

a pro se complaint without affording the plaintiff the opportunity to amend.

Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). However, any such error

may be ameliorated if the plaintiff has pleaded his “best case.” Id. at 1054 & n.7.

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 1

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Here, the magistrate judge conducted a Spears hearing after Ybarra filed his

motion to file an amended complaint and before recommending the dismissal of

Ybarra’s complaint as frivolous. A review of the testimony reflects that Ybarra

was given the opportunity to articulate fully the factual basis for his claims. See

Wilson, 926 F.2d at 482. Any error in not allowing an amendment of the

complaint was harmless. See Bazrowx, 136 F.3d at 1054 & n.7.

Ybarra has failed to demonstrate the extraordinary circumstances

necessary to justify the appointment of counsel. See Ulmer v. Chancellor, 691

F.2d 209, 212-13 (5th Cir. 1982). Thus, he has shown no abuse of discretion in

the denial of his motion for the appointment of counsel. See Cupit v. Jones, 835

F.2d 82, 86 (5th Cir. 1987).

Ybarra has not shown that the magistrate judge abused her discretion in

not requiring the defendants to testify at the Spears hearing. See Wilson, 926

F.2d at 483. Ybarra has not demonstrated that any relevant testimony was

excluded or made a substantial showing that the testimony of the defendants

was needed. See Cupit, 835 F.2d at 86-87.

Generally, we review the dismissal of a complaint pursuant to § 1915A as

frivolous and for failure to state a claim de novo. See Ruiz v. United States, 160

F.3d 273, 275 (5th Cir. 1998). Ybarra, however, has failed to raise any

arguments challenging the district court’s specific reasons for dismissing his

claims, which were set forth in the magistrate judge’s report and in the district

court’s memorandum. Rather, he suggests, erroneously, that the magistrate

judge provided no reasons for recommending the dismissal of his claims.

Because Ybarra fails to identify any error in the district court’s analysis of the

substantive claims raised in his § 1983 complaint, the issues are deemed

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

744, 748 (5th Cir. 1987).

AFFIRMED.

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