     Case: 10-11083 Document: 00511439736 Page: 1 Date Filed: 04/08/2011




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

                                                 FILED
                                                                             April 8, 2011
                                      No. 10-11083
                                    c/w No. 10-11136                        Lyle W. Cayce
                                   Summary Calendar                              Clerk



CHRISTOPHER FLORES,

                                                   Plaintiff-Appellant

v.

CARY J. COOK, Assistant Warden; KEVIN P. PINNEY, Major of Security;
RICHARD D. AVANTS, Captain of Security; CHARLES S. HENDRIX,
Lieutenant of Security; RICHARD G. LEAL, Assistant Warden; JANAY B.
WILLIAMS, Property Officer; KELLI WARD, Administrative Assistant,

                                                   Defendants-Appellees




                   Appeals from the United States District Court
                        for the Northern District of Texas
                               USDC No. 1:09-CV-9


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Christopher Flores, Texas prisoner # 1336588, seeks
to proceed in forma pauperis (IFP) on appeal following dismissal as frivolous of
his 42 U.S.C. § 1983 complaint. In his complaint, he alleged that the defendants,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-11083
                                 c/w No. 10-11136

in retaliation for his filing grievances or complaints against prison officials,
issued a false disciplinary charge for failing to obey an order. According to
Flores, this resulted in his transfer to a less desirable prison unit.
      Flores’s IFP motion is a challenge to the district court’s certification that
his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Our inquiry into whether an appeal is taken in good faith “is
limited to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted). Because the district court
dismissed Flores’s claim as frivolous, our review is for abuse of discretion. See
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Flores alleges several procedural errors by the magistrate judge in
conducting the Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) hearing. Flores
asserts that the magistrate judge erred in not requiring the defendants to file an
answer and in not allowing him to conduct discovery. He also asserts that he
was not allowed to subpoena any witnesses or question any state officials.
Lastly, Flores contends that he was not allowed to examine or challenge the use
of prison records.
      Section 1915(e) instructs the district court that it “shall dismiss the case
at any time if the court determines that . . . the action . . . fails to state a claim
on which relief may be granted.” § 1915(e)(2)(ii). Dismissal under § 1915 “is
often made sua sponte prior to the issuance of process, so as to spare prospective
defendants the inconvenience and expense of answering such complaints.”
Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 1991) (internal quotation marks
omitted).
      A Spears hearing is designed to permit the court to pierce the veil of the
pro se complaint so as “‘to dig beneath the conclusional allegations.’” Wesson v.
Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (quoting Spears, 766 F.2d at 180).


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                                  No. 10-11083
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Within the context of the Spears hearing, the court “has the discretion to decide
the best way to elicit the complainant’s articulation of his grievance and the
basis for making any credibility assessment needed.” Wilson, 926 F.2d at 483.
      It was not error, therefore, for the magistrate judge to dismiss the
complaint sua sponte prior to its service on the defendants and without allowing
discovery. See id. at 482. Moreover, Flores fails to identify the evidence that
would have been produced as the result of any discovery and fails to explain how
allowing discovery would have changed the course of the proceedings. Neither
does Flores name the witnesses who should have been subpoenaed and has not
demonstrated that any relevant testimony or evidence was excluded. He also
fails to explain which state officials he desired to question at the hearing or what
such questioning would have revealed. Flores also fails to identify the records
he was not allowed to review. His conclusional allegations are insufficient to
show error. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
      Furthermore, Flores apparently misunderstands the nature of a Spears
hearing. The purpose of the Spears hearing is not to address the merits of the
complaint but to focus on the legal viability of the allegations. See Wesson, 910
F.2d at 281. The magistrate judge was not required to allow Flores to present
witnesses, cross-examine the defendants, or present evidence because these
rights relate to consideration of the merits of his complaint. See id.
      We also reject as without merit Flores’s retaliation claim. Flores has not
alleged a series of events from which retaliation could plausibly be inferred. See
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Flores did not identify any
specific grievance or complaint against any particular prison official that
precipitated the alleged retaliatory act.     Flores’s allegations, based on his
personal belief, that he had been retaliated against are not sufficient to state a
valid claim of retaliation. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.
1997). The magistrate judge did not abuse his discretion in dismissing Flores’s


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claims that he was denied due process during his disciplinary proceeding as
barred by Heck v. Humphrey, 512 U.S. 477 (1994), in as much as Flores failed to
show that the disciplinary conviction had been invalidated or expunged.
      Flores’s appeal is without arguable merit and thus is frivolous.          See
Howard, 707 F.2d at 219-20. Because the appeal is frivolous, it is dismissed.
See 5 TH C IR. R. 42.2. Flores is cautioned that the dismissal of this appeal as
frivolous counts as a strike under 28 U.S.C. § 1915(g), as does the district court’s
dismissal as frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). As he now has two strikes under § 1915(g), Flores is cautioned that
if he accumulates a third strike under § 1915(g), he will not be allowed to
proceed IFP in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he “is under imminent danger of serious physical
injury.” See § 1915(g).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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