UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 95-31146

(Summary Calendar)

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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; T ONI

STONEBERGER; ERNEST V RICHARDS, IV, Judge,

Division B; ANDRE MAILLHO, Captain; LAWRENCE E

BIRI, JR; GREG NOBLE; ALLAN J GREEN; CHARLES

K ILBOURN; 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.1 Pursua nt 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opinion should not be published and is not precedent except under the limited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- PER CURIAM: 1

Plaintiff John W. Patton brought this suit, pursu ant to 42

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

with 160 cri mes 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

h e 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, 2372-7 4, 129 L. Ed. 2d 383 (1994) (holding that a-3-

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

found unlawful, would render a state conviction or sentence invalid

unless that conviction or senten ce has been reversed, expunged,

inval idated, 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 recommendatio ns in

which he contin ued 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. D enton 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 i n 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.” N

eitzke v. Williams

, 490 U.S. 319, 325, 109 S. Ct. 182 7

,

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

fri volousness is appropriate when the facts alleged rise to the

level of the irrational or the wholly incredible.” D enton

,___ U.S.

at ___, 112 S. Ct. at 1733. A court may not dismiss an in forma2 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

prov ided 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. S ee, 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. O g lesby

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

a llegations to be unlikely, but may do so only when the al leged

facts are "clearly baseless.” I d

. (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 proceedin gs 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 In4 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. S ee 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. 199 4) (holding that “[i]t is well

settled that if fact s 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- 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.” M ackey 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.” I d.; see also Montoya v. Scott

, 65 F.3d 405, 421 (5th

Cir. 199 5) (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-6-

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

. S ee 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 o f his

conviction and therefore Heck did not bar the p risoner’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.