     Case: 12-40104     Document: 00511997200         Page: 1     Date Filed: 09/24/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 24, 2012
                                     No. 12-40104
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

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


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-40104

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-CV-
2096-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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