IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20477
Conference Calendar
JAY TODD NEESE,
Plaintiff-Appellant,
versus
J. KATZ ET AL.,
Defendants,
J. KATZ; R. HEALY; J. LEEVES, Doctor;
S. YOUNG; J. JACKSON; P. DALY, Ms.;
R. MCKINNEY, Mrs.; M. CULLEY, Ms.,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-3707
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February 10, 1999
Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*
PER CURIAM:**
Jay Todd Neese, Texas inmate #349086, appeals the dismissal
as frivolous of his civil rights complaint. He argues that his
complaint should not have been dismissed because of the following
*
This matter is being decided by a quorum. 28 U.S.C. §
46(d).
**
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that this opinion should not be published and is not precedent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. 98-20477
-2-
procedural irregularities at the Spears*** hearing: 1) the TDCJ
defendants failed to provide Neese a copy of the relevant TDCJ
records; 2) the district court improperly used the medical record
to refute Neese’s claim; and 3) Neese was unable to object to
evidence or to cross-examine witnesses. We have carefully
reviewed Neese’s arguments and the appellate record. We detect
no error in the use of the administrative records at the Spears
hearing or in the manner in which the district court conducted
that hearing. See Banuelos v. McFarland, 41 F.3d 232, 235 (5th
Cir. 1995); see also Wilson v. Barrientos, 926 F.2d 480, 482-83
(5th Cir. 1991).
A review of Neese’s allegations, from his complaint, from
the answers in his more definite statement, and from his
testimony at the hearing, reveal that the removal of the lower-
bunk restriction and the seventeen-month period preceding the
restriction being again placed on Neese’s medical classification
record amounted to no more than medical malpractice. See Varnado
v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). The district
court did not abuse its discretion in dismissing the complaint as
frivolous. See McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997).
AFFIRMED.
***
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).