               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 99-40037
                        Conference Calendar



ALPHONSO SMITH,

                                         Plaintiff-Appellant,

versus

R JOHNSON, Correctional Officer III, Coffield Unit;
BELINDA MAPLE, Sergeant, Coffield Unit,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:98-CV-488
                       --------------------
                          April 12, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Alphonso Smith, Texas prisoner #621036, appeals from the

dismissal of his civil rights action as frivolous and for failure

to state a claim.   Smith contends that he should have been

allowed to amend his complaint before it was dismissed; that the

defendants, a correctional officer and a sergeant, were

deliberately indifferent to his serious medical needs; and that




     *
        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that this opinion should not be published and is not precedent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.
                           No. 99-40037
                                -2-

he should not have been required to exhaust his prison

administrative remedies because he sought damages only and could

not obtain damages through Texas’s remedies procedures.

     The magistrate judge held a hearing pursuant to Spears v.

McCotter, 766 F.2d 179 (5th Cir. 1985), to bring into focus the

factual basis of Smith’s claims.   Because the magistrate judge

held a Spears hearing, Smith need not have been allowed to amend

his complaint.

     Smith’s complaint and his testimony at the Spears hearing

did not indicate that the defendants were deliberately

indifferent to his serious medical needs.   Estelle v. Gamble, 429

U.S. 97, 106 (1976).   Smith’s contention regarding exhaustion is

without merit.   The complaint was dismissed on its merits.

    AFFIRMED.
