                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        June 20, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                             No. 03-50885 c/w
                                No. 04-50526
                              Summary Calendar



                          INOCENCIO LARA TRUJILLO,

                            Plaintiff-Appellant,

                                   versus

             FRANCES HOBBS, Detention Center Administrator;
         NFN LIPPMAN, Detention Center Administrator; JILBERTO
           JACQUEZ, Detention Center Administrator; JOHN DOE,
                   Administration Remedy Coordinator,

                           Defendants-Appellees.

                          --------------------
             Appeals from the United States District Court
                   for the Western District of Texas
                        USDC No. EP-03-CV-212-DB
                          --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Inocencio     Lara    Trujillo   (TDCJ   #   11249-179)    appeals      the

district court’s dismissal of his 42 U.S.C. § 1983 complaint

wherein     he   alleged    that   the   defendants    were     deliberately

indifferent to his medical needs. The district court dismissed the

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).              Trujillo

also appeals the court’s denial of his subsequent FED. R. CIV. P.


     *
       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this opinion should not be published and is not precedent except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. 04-50526
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60(b) motion wherein he argued that the dismissal of his complaint

should have been without prejudice.

     Trujillo argues that the district court erred by failing to

afford him the opportunity to have his case heard by a magistrate

judge as required under Rule 3(b) of the Local Rules for the

Western District of Texas.        We review Trujillo’s challenge to the

district court’s interpretation of its own procedural rules de

novo.    See Bellaire Gen. Hosp. v. Blue Cross Blue Shield of

Michigan, 97 F.3d 822, 827 (5th Cir. 1996).             Rule 3(b) of the Local

Rules for the Western District of Texas does not guarantee a

litigant a right to proceed before a magistrate judge.                         The

district court    was    thus    not   required    to    afford   Trujillo     the

opportunity to have his case heard before a magistrate judge.

     Trujillo    also    argues   that    the     district   court     erred   by

dismissing his complaint with prejudice without affording him an

opportunity to articulate his claims at a Spears v. McCotter, 766

F.2d 179, 181 (5th Cir. 1985), hearing.                  He argues that the

interrogatories propounded by the district court were insufficient

to allow him to develop his claims because they permitted him “no

opportunity to frame his allegations in a non-frivolous manner.”

     A   lower   court    “may    abuse   its     discretion      by   providing

insufficient opportunity for the plaintiff to develop his claims.”

Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).                         “The

principal vehicles which have evolved for remedying inadequacy in

prisoner pleadings are the Spears hearing and a questionnaire to
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                                  -3-

bring into focus the factual and legal bases of prisoners’ claims.”

 Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).             Id. (internal

quotations and citation omitted). However, “plaintiff’s cannot be

allowed to continue to amend or supplement their pleading until

they stumble upon a formula that carries them over the threshold.”

Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986).                 The

district court did not abuse its discretion by failing to allow

Trujillo additional opportunities to develop his claims.

       Finally, to the extent that Trujillo challenges the district

court’s basis for dismissing his complaint, we perceive no error.

Title 28 U.S.C. § 1915(e)(2)(B)(i) authorizes the dismissal of an

IFP complaint that is frivolous or malicious.              A complaint is

frivolous “if it lacks an arguable basis in law or fact.”         Talib v.

Gilley, 138 F.3d 211, 213 (5th Cir. 1998).           Dismissals under

§ 1915(e)(2)(B)(i) are reviewed for an abuse of discretion. Id. at

213.     However, because the district court also dismissed the

complaint under § 1915(e)(2)(B)(ii) for failure to state a claim,

we review the dismissal of the instant complaint de novo.         See Ruiz

v. United States, 160 F.3d 273, 274 (5th Cir. 1998); Velasquez v.

Woods, 329 F.3d 420, 421 (5th Cir. 2003).

       The record supports the district court’s determination that

Trujillo’s condition was treated repeatedly.            Although Trujillo

couches his argument as the complete denial of medical care based

on a policy decision, the essence of Trujillo’s claim is that            the

defendants   were   negligent   for   failing   to    determine   that   his
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                                -4-

condition warranted surgery.    Such is not a basis for a civil

rights action under § 1983.   See Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991).

     AFFIRMED.
