                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                           _________________

                             No. 95-31146

                         (Summary Calendar)
                          _________________


          JOHN W PATTON,


                                 Plaintiff-Appellant,

          versus


          JEFFERSON PARISH SHERIFF’S OFFICE; SUSAN D
          RUSHING, Lt; FRED WILLIAMS, Major; JPSO; HARRY
          LEE, Sheriff; RICHARD RODRIGUE, Chief; JPSO;
          RICHARD P IEYOUB, Attorney General; JANET
          RENO, U S Attorney General; TAMMY LYNN
          DAVIDSON; ROY J CASTANEDO; TAMEKA ROBERTS;
          THOMAS REED; ANITA REED; MAUREEN MCKINNEY;
          PATRICIA J LATON; ANN LECOMTTE; CAREN MORGAN;
          KENNETH KLINE, Detective; G PATRICK HAND, III;
          JUANITA   VERNON;   HINTON   CASTANEDO;   TONI
          STONEBERGER; ERNEST V RICHARDS, IV, Judge,
          Division B; ANDRE MAILLHO, Captain; LAWRENCE E
          BIRI, JR; GREG NOBLE; ALLAN J GREEN; CHARLES
          KILBOURN; CHRISTINE CAMPAGNO; TERRY GRAFFED,
          Detective; LINDA MATTHEWS; ROBERT LONG,


                                 Defendants-Appellees.



          Appeal from the United States District Court
              For the Eastern District of Louisiana
                          (CA-95-2253-R)


                          June 27, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1

     Plaintiff John W. Patton brought this suit, pursuant to 42

U.S.C. § 1983, alleging that he was falsely arrested and charged

with 160 crimes on January 7, 1994.            The suit was assigned to a

magistrate     judge,    who    ordered    Patton        to        answer    written

interrogatories.         In     Patton’s       answers        to     the     written

interrogatories,    Patton     stated   that    three    months          after   being

falsely arrested he was further charged with seven more crimes, two

of which resulted in convictions.          According to Patton, he was

never convicted on any of the 160 allegedly false charges.                       After

receiving Patton’s answers to the interrogatories, the magistrate

judge held a telephone conference with Patton.                      The magistrate

judge reported that during this conference Patton “admitted” that

he had been arrested on all 167 charges on January 7.                       Based on

this fact, the magistrate judge recommended that Patton’s suit be

dismissed as frivolous under 28 U.S.C. § 1915(d).                   The magistrate

judge reasoned that because Patton was ultimately convicted for a

crime upon which his arrest was predicated, attacking that arrest

would    necessarily    implicate   the    validity       of       his    subsequent

conviction.    Accordingly, the magistrate judge felt that Patton’s

§ 1983 suit was barred by Heck v. Humphrey, ___ U.S. ___, ___, 114

S. Ct. 2364, 2372-74, 129 L. Ed. 2d 383 (1994) (holding that a



     1
            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.

                                    -2-
plaintiff cannot recover damages under § 1983 for actions which, if

found unlawful, would render a state conviction or sentence invalid

unless that conviction or sentence has been reversed, expunged,

invalidated,       or   otherwise   called    into   question).       Patton

vociferously objected to the magistrate judge’s findings. He asked

to   speak    to    the   magistrate   judge     again   to     correct   his

“misstatements” to the magistrate judge’s questions. He then filed

written objections to the magistrate judge’s recommendations in

which he continued to maintain that his January 7 arrest did not

involve any charges upon which he was later convicted.                    The

district court adopted the recommendations of the magistrate, and

dismissed Patton’s suit based on Heck.

     We review a district court’s § 1915(d) dismissal for abuse of

discretion.    Denton v. Hernandez, ___ U.S.___, ___, 112 S. Ct.

1728, 1734, 118 L. Ed. 2d 340 (1992); Ancar v. Sara Plasma, Inc.,

964 F.2d 465, 468 (5th Cir. 1992).         A court may dismiss an in forma

pauperis claim under § 1915(d) “if satisfied that the action is

frivolous or malicious.”        28 U.S.C. § 1915(d).          A complaint is

frivolous “where it lacks an arguable basis either in law or in

fact.”   Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827,

1831-32, 104 L. Ed. 2d 338 (1989).              “[A] finding of factual

frivolousness is appropriate when the facts alleged rise to the

level of the irrational or the wholly incredible.” Denton,___ U.S.

at ___, 112 S. Ct. at 1733.         A court may not dismiss an in forma


                                     -3-
pauperis    complaint     merely    because    it   finds    the   plaintiff’s

allegations to be unlikely, but may do so only when the alleged

facts are "clearly baseless.”        Id.    (citations omitted).2      A § 1983

claim that is barred by the rule in Heck is legally frivolous under

§ 1915(d).    Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994).

      We find the district court abused its discretion in dismissing

as frivolous Patton’s § 1983 suit.          On the record presented, Patton

has maintained throughout these proceedings that his arrest on

January 7 was malicious and false, and that he was never convicted

on any of the 160 charges brought at the time of his January

arrest.    In dismissing Patton’s suit as frivolous, the district

court relied solely on the magistrate judge’s statement in his

recommendations that Patton “admitted” in his telephone conference

that all 167 charges were brought pursuant to Patton’s January

arrest.    The record contains no transcript or recording of this

telephone conference, and we are thus unable to review it.3                   In



      2
            In reviewing a district court's frivolousness determination, we
consider factors such as whether the plaintiff was proceeding pro se, whether the
district court inappropriately resolved genuine issues of disputed fact, whether
the court applied erroneous legal conclusions, whether the district court
provided a statement explaining the dismissal that facilitates intelligent
appellate review, and whether the district court dismissed the complaint with or
without prejudice. Denton, ___ U.S. at ___, 112 S. Ct. at 1730.
      3
            We note that it is standard procedure for a magistrate or district
court to conduct Spears hearings on the record in order to facilitate meaningful
appellate review. See, e.g., Eason v. Holt, 73 F.3d 600, 603-04 (5th Cir 1996)
(looking to transcript of Spears hearing to evaluate propriety of district
court’s dismissal under § 1915(d)); Wesson v. Oglesby, 910 F.2d 278, 282 (5th
Cir. 1990) (holding that district court erred in adopting the recommendations of
the magistrate “without benefit of a transcript or tape recording of the Spears
hearing”).

                                      -4-
light of Patton’s original answers to his interrogatories, and his

protestations     that   he   misspoke   to    the    magistrate,   we   cannot

determine from this record whether Patton was arrested on all 167

charges in January or not.        Patton continues to maintain that his

conviction arose from charges independent from and filed subsequent

to his allegedly unlawful January arrest. If these facts are true,

Patton’s § 1983 suit challenging the validity of his January arrest

is unrelated to the validity of his subsequent conviction.4

      Further, “[i]t is well established that a claim of unlawful

arrest, standing alone, does not necessarily implicate the validity

of   a criminal    prosecution     following    the    arrest.”     Mackey   v.

Dickson, 47 F.3d 744, 746 (5th Cir. 1995).             As we have previously

noted, if a defendant “is tried and convicted and in his contested

criminal case no evidence is presented resulting directly or

indirectly from any of his arrests, it is difficult to see how any

illegality in any of his arrests could be inconsistent with his

conviction.”    Id.; see also Montoya v. Scott, 65 F.3d 405, 421 (5th

Cir. 1995) (noting the “established rule that illegal arrest or

detention does not void a subsequent conviction”).                A conviction

does not ipso facto establish that probable cause existed for the


      4
            We also note that the record is silent as to the procedure by which
Patton was arrested. The details of Patton’s arrest could be determinative of
his claim. See Campbell v. City of San Antonio, 43 F.3d 973, 976 (5th Cir. 1995)
(holding that indictment by a grand jury establishes probable cause for arrest);
Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994) (holding that “[i]t is well
settled that if facts supporting an arrest are placed before an independent
intermediary such as a magistrate or grand jury, the intermediary’s decision
breaks the chain of causation for false arrest”).

                                      -5-
defendant’s arrest.     Thus, even if Patton was ultimately convicted

on charges brought pursuant to his January arrest, Patton’s § 1983

suit challenging the validity of that arrest would not necessarily

implicate the invalidity of his conviction, and therefore would not

be barred by Heck.       See Mackey, 47 F.3d at 746 (holding that

district court erred in dismissing as frivolous prisoner’s § 1983

suit challenging the validity of his arrest on the basis that false

arrest   did   not   necessarily   implicate   the   invalidity   of   his

conviction and therefore Heck did not bar the prisoner’s suit).

Accordingly, the district court decision to dismiss Patton’s suit

as frivolous under § 1915(d) was erroneous.

     We VACATE the district court’s § 1915(d) dismissal of Patton’s

§ 1983 suit, and REMAND for further proceedings.




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