* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

### 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; KEV IN P. PINNEY, Major of Security; R ICHARD D. AVANTS, Captain of Security; CHARLES S. HEND RIX, Lieutenant of Security; RICHA RD 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. § 1983complaint. I n 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 ClerkNo. 10-11083 c/w No. 10-11136

2 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 i s 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 towhether the appeal involves legal pointsarguable on their merits (and therefore not frivolous).” H oward 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 Spearsv. McCotter, 766 F.2d 179 (5th Cir. 1985) hearing. Flores asserts that the magistratejudge erred in not requiring the defendants tofile 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 ofprocess, 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 S pears, 766 F.2d at 180).No. 10-11083 c/w No. 10-11136

3 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 evidenc e that would have been produced as the result ofany discovery and fails toexplain 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 toexplain which state officials he desired toquestion 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 S pears 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. SeeWesson, 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 ofevents 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. SeeJohnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). The magistratejudge did not abuse his discretion in dismissing Flores’sNo. 10-11083 c/w No. 10-11136

4 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, 1 03 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 ofserious physical injury.” See § 1915(g). APPEAL DISMISSED; SANCTION WARNING ISSUED.