                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 24, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40235
                        Conference Calendar


RICKY L. WALKER,

                                    Plaintiff-Appellant,

versus

P.W. PACE, Regional Director of Grievance; WESLEY W. PRATT,
Assistant Warden; LYNWOOD B. COOK, Major,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:05-CV-271
                       --------------------

Before JOLLY, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Ricky L. Walker, Texas prisoner # 585916, appeals from the

dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for

failure to state a claim, pursuant to 28 U.S.C. § 1915A.

     Walker complains of the Spears v. McCotter, 766 F.2d 179

(5th Cir. 1985), hearing in his case being conducted by the

magistrate judge.   He also asserts that Assistant Warden Wesley

Pratt should not have been allowed to testify at the hearing.

The magistrate judge had statutory authority to conduct the


     *
       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this opinion should not be published and is not precedent except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. 06-40235
                                 -2-

hearing, 28 U.S.C. § 636(b)(1)(A), and this court recognizes that

prison officials may testify at Spears hearings.      See Wilson v.

Barrientos, 926 F.2d 480, 483 (5th Cir. 1991).

     Walker’s allegations and his testimony at the Spears hearing

do not give rise to an inference that Major Lynwood Cook

retaliated against him for filing a grievance against the prison

education department.    Rather, the allegations suggest that

Walker was placed in safekeeping for his own safety.      See Johnson

v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (requiring that

the conduct alleged to be retaliatory would not have occurred

absent a retaliatory motivation).    Even if his allegations were

true, no relief can be granted on the facts Walker alleged.        See

Bass v. Parkwood Hosp., 180 F.3d 234, 240 (5th Cir. 1999).

     Walker’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).      The

appeal is dismissed.    See 5TH CIR. R. 42.2.   The district court’s

dismissal of Walker’s action and this court’s dismissal of his

appeal each count as a strike against Walker for purposes of

28 U.S.C. § 1915(g).    Adepegba v. Hammons, 103 F.3d 383, 387-88

(5th Cir. 1996).   If he accumulates three strikes, he may no

longer proceed in forma pauperis 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.
