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.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:05-CV-271
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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this opinion should not be published and is not precedent except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.