IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-21068 Summary Calendar

BILLY RAY RISLEY,

Plaintiff-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; M.B. THALER; C. BROWN; ZIMA, DR.,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-1618 --------------------

October 22, 1999

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Billy Ray Risley, Texas prisoner # 715659, appeals the

district court’s dismissal of his

civil rights

complaint as frivolous. See

(e)(2)(B)(i).

Risley contends that M.B. Thaler, former warden of the Ellis unit

of the Texas Department of Criminal Justice, Institutional

Division; Dr. Zima, a physician employed at the Ellis Unit; and

C. Brown, a guard also employed at the Ellis Unit subjected him

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-21068 -2-

to cruel and unusual punishment and were deliberately indifferent

to his serious medical needs by requiring him to perform work

beyond his physical capacity. Risley contends that the district

court erred in denying his motion for summary judgment and in

denying his right to a jury trial. He also argues that the

district court abused its discretion by denying his motion for

the appointment of counsel, denying his motions for discovery,

and in dismissing his § 1983 complaint as frivolous.

Risley has not shown that the district court abused its

discretion by denying his motion for the appointment of counsel.

Risley’s claim is simple and straightforward and his pleadings

show that he is literate and able to present cogent arguments to

the court. See Ulmer v. Chancellor,

(5th

Cir. 1982).

Risley has not shown that the district court abused its

discretion in denying his discovery requests. The district court

was neither arbitrary nor unreasonable in denying discovery

motions for a defendant that had not yet been served with process

and had not yet filed an answer. Mayo v. Tri-Bell Indus., Inc.,

(5th Cir. 1986).

Risley has not shown that the district court erred in

denying his motion for a summary judgment. Risley was not

entitled to obtain a default judgment because, pursuant to an

order of the district court, the defendants were under no

obligation to answer Risley’s complaint before the Spears

hearing.

Risley has not shown that the district court erroneously No. 98-21068 -3-

deprived him of his right to a jury trial by dismissing his

complaint following the Spears hearing. A district court may

dismiss a complaint as frivolous following a Spears hearing

despite a jury-trial request. Spears v. McCotter,

(5th Cir. 1985).

Nor has Risley shown that the district court abused its

discretion in dismissing his § 1983 action as frivolous. See

§ 1915(e)(2)(B)(i). Risley’s allegations indicate disagreement

with his doctor’s initial diagnosis that he was capable of doing

field work; at most, they show negligence or medical malpractice.

As noted above, disagreement with one’s medical treatment,

negligence, or medical malpractice is insufficient to support a

§ 1983 claim. Varnado v. Lynaugh,

(5th Cir.

1991). The district court’s dismissal of Risley’s § 1983

complaint is AFFIRMED.