IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-21031 Summary Calendar

BERTRAND J. TUCKER, Plaintiff-Appellant,

versus CALVIN TUCKER, T. ESPARZA, MICHAEL W. COUNTZ, Warden, Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA-H-92-2975 - - - - - - - - - - July 16, 1996 Before HIGGINBOTHAM, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:* Bertrand J. Tucker, TDCJ No. 559631, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. Tucker contends that he alleged sufficient facts demonstrating that the defendants were deliberately indifferent to his serious medical needs when they delayed a needed operation for several months by removing him for a minor transgression on his part from a bus line that would have transferred him to the hospital. Because

Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. the evidence presented at Tucker’s Spears hearing demonstrates that his condition did not constitute a serious medical need, Tucker did not allege a constitutional violation of the denial of medical treatment. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The district court did not abuse its discretion in dismissing the complaint as frivolous. The motion for a jury trial is DENIED.

AFFIRMED.