     Case: 10-40588 Document: 00511400173 Page: 1 Date Filed: 03/03/2011




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

                                                 FILED
                                                                            March 3, 2011
                                     No. 10-40588
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAVIER YBARRA,

                                                   Plaintiff-Appellant

v.

DEBORAH HURLEY, Grievance Investigator III; CHAD WAKEFIELD,
Lieutenant; KENNETH MILLER, Correctional Officer III; SERGIO SANTANA,
Correctional Officer II; WALID HAMOUDI, Medical Director,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:09-CV-212


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Javier Ybarra, Texas prisoner # 775707, appeals from the district court’s
dismissal of his civil rights complaint as frivolous and for failure to state a claim.
See 28 U.S.C. § 1915A. Ybarra contends that (1) the Lufkin Division, Eastern
District of Texas, erroneously transferred the cause of action to the Tyler
Division, Eastern District of Texas, and he did not consent to the magistrate



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-40588 Document: 00511400173 Page: 2 Date Filed: 03/03/2011

                                        No. 10-40588

judge adjudicating his complaint, (2) he was entitled to a jury trial in light of his
request for a jury trial, (3) the district court erred in dismissing his complaint
“in conjunction with” dismissing his complaint in another cause of action, Ybarra
v. Meador, identified by civil action no. 9:09-CV-213, (4) the district court abused
its discretion in denying him leave to amend his complaint, (5) the district court
abused its discretion in denying his motion for the appointment of counsel, and
(6) the magistrate judge abused her discretion in refusing to require the
defendants to testify at the Spears1 hearing and, instead, in allowing others to
testify.
       The record does not reflect that the cause of action was transferred from
the Lufkin Division to the Tyler Division, as Ybarra asserts. Rather, the district
court properly referred the case to the magistrate judge pursuant to 28 U.S.C.
§ 636(b). See Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). Moreover, the
magistrate judge did not enter judgment pursuant to § 636(c), which requires
consent of the parties, but only made a recommendation pursuant to
§ 636(b)(1)(B). Further, Ybarra was not entitled to a trial, jury or otherwise,
once his claims were determined to be frivolous. See Spears, 766 F.2d at 181-82.
       To the extent that Ybarra contends that the magistrate judge abused her
discretion in conducting a single Spears in his two civil rights actions, Ybarra
has not shown that the magistrate judge abused her discretion, especially since
the claims were partly intertwined. See Wilson v. Barrientos, 926 F.2d 480, 483
(5th Cir. 1991).
       We also reject Ybarra’s assertion that the district court erred in denying
his motion to amend. In general, it is not proper for a district court to dismiss
a pro se complaint without affording the plaintiff the opportunity to amend.
Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998). However, any such error
may be ameliorated if the plaintiff has pleaded his “best case.” Id. at 1054 & n.7.


      1
           Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                               2
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                                   No. 10-40588

Here, the magistrate judge conducted a Spears hearing after Ybarra filed his
motion to file an amended complaint and before recommending the dismissal of
Ybarra’s complaint as frivolous. A review of the testimony reflects that Ybarra
was given the opportunity to articulate fully the factual basis for his claims. See
Wilson, 926 F.2d at 482.       Any error in not allowing an amendment of the
complaint was harmless. See Bazrowx, 136 F.3d at 1054 & n.7.
      Ybarra has failed to demonstrate the extraordinary circumstances
necessary to justify the appointment of counsel. See Ulmer v. Chancellor, 691
F.2d 209, 212-13 (5th Cir. 1982). Thus, he has shown no abuse of discretion in
the denial of his motion for the appointment of counsel. See Cupit v. Jones, 835
F.2d 82, 86 (5th Cir. 1987).
      Ybarra has not shown that the magistrate judge abused her discretion in
not requiring the defendants to testify at the Spears hearing. See Wilson, 926
F.2d at 483. Ybarra has not demonstrated that any relevant testimony was
excluded or made a substantial showing that the testimony of the defendants
was needed. See Cupit, 835 F.2d at 86-87.
      Generally, we review the dismissal of a complaint pursuant to § 1915A as
frivolous and for failure to state a claim de novo. See Ruiz v. United States, 160
F.3d 273, 275 (5th Cir. 1998).       Ybarra, however, has failed to raise any
arguments challenging the district court’s specific reasons for dismissing his
claims, which were set forth in the magistrate judge’s report and in the district
court’s memorandum. Rather, he suggests, erroneously, that the magistrate
judge provided no reasons for recommending the dismissal of his claims.
Because Ybarra fails to identify any error in the district court’s analysis of the
substantive claims raised in his § 1983 complaint, the issues are deemed
abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
      AFFIRMED.



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