IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11083

c/w No. 10-11136

Summary Calendar

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,

United States Court of Appeals

Fifth Circuit

F I L E D

April 8, 2011

Lyle W. Cayce

Clerk

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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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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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 5TH CIR. 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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