IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41316
Summary Calendar
ENRIQUE MORENO,
Plaintiff-Appellant,
versus
U.S. MARSHAL SERVICE; C.J. VILLARREAL,
Deputy U.S. Marshal; NUECES COUNTY JAIL;
LARRY OLIVAREZ, Sheriff, Sheriff of Nueces
County; MICHAEL RATLIFF, Sheriff of Victoria
County; VICTORIA COUNTY JAIL; SPOHN HOSPITAL;
JOHN DOES, 1 To 100; JANE DOES, 1 To 100,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(C-98-CV-206)
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June 14, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Enrique Moreno appeals the dismissal of
his civil rights claim as frivolous under 28 U.S.C. § 1915A(b)(1).
A pro se prisoner’s complaint may be dismissed as frivolous if it
lacks an arguable basis in law or fact. § 1915A(b)(1); Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994)(dismissal under §
1915(e)(2)(B)(i)). We review a § 1915 dismissal for abuse of
*
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that this opinion should not be published and is not precedent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.
discretion. Martin v. Scott, 156 F.3d 578, 580 (5th Cir.
1998)(dismissal under § 1915A), petition for cert. filed (U.S. Dec.
22, 1998) (No. 98-9113). Because Moreno is a pro se prisoner
filing a civil action against government entities, the magistrate
judge properly considered his claim under § 1915A despite his
payment of filing fees.
Moreno argues that the magistrate judge erred in holding a
nonadversarial hearing under Spears v. McCotter, 766 F.2d 179 (5th
Cir. 1985). A Spears hearing is designed to allow a magistrate
judge to ascertain the facts behind conclusional allegations in a
pro se prisoner’s lawsuit brought under 42 U.S.C. § 1983. It is
not meant to be an adversarial proceeding. Moreno’s contention on
this point is meritless.
Moreno contends that the magistrate judge erred in not
considering his malpractice claims against Spohn Hospital. We
disagree. The magistrate judge properly exercised her discretion
in declining jurisdiction over a supplemental state-law claim once
she had dismissed the federal causes of action as frivolous.
McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998). Moreno
can still file this cause of action in state court.
Moreno next argues that the magistrate judge erred in not
determining the normal postoperative procedures for hernia surgery
and in not permitting him to conduct discovery to determine whether
jail officials had been given any rules for treatment. Discovery
matters are entrusted to the sound discretion of the court.
Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990). Moreno was
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not entitled to discovery to ascertain whether he had a cause of
action. See Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d
1017, 1029 (5th Cir. 1983)(refusal to permit fruitless additional
discovery before ruling on a motion for summary judgment).
Moreno provided no evidence other than his assertions of
“common sense” that the jail officials abused his constitutional
rights by making him climb stairs several days after surgery and
requiring him to climb into a top bunk four to five weeks after
surgery. Prison officials violate the constitutional prohibition
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). A prison official acts
with deliberate indifference “only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 847 (1994). Acts of negligence, neglect, or
medical malpractice do not give rise to a § 1983 cause of action.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Moreno has
at best alleged negligent actions, which do not give rise to a
cause of action under § 1983.
Finally, Moreno contends that the magistrate judge should have
allowed him to amend his complaint. Responses at a Spears hearing
are considered part of the pleadings on review. Eason v. Holt, 73
F.3d 600, 603 (5th Cir. 1996). Moreno therefore did have the
opportunity to amend his complaint before an answer was filed. He
has not shown that the magistrate judge abused her discretion. For
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the foregoing reasons we hold that the judgment of the magistrate
judge is
AFFIRMED.
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Moreno v. US Marshal Service
Combined Opinion