               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.

                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Southern District of Texas
                           (C-98-CV-206)
                        - - - - - - - - - -

                               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that this opinion should not be published and is not precedent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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