(caption unavailable)

1 Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-20045
Summary Calendar
_____________________
ROBERT RASBERRY, JR., Plaintiff-Appellant,
versus
LESTER H. BEAIRD, ET AL., Defendants-Appellees.
___________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-91-850)
___________________________________________________________________
(September 14, 1994)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
Per Curiam1:
Robert Rasberry, Jr. (Rasberry) filed this civil rights case
pro se and applied for pauper status under 28 U.S.C. § 1915. He is
an inmate of the Texas Department of Criminal Justice -
Institutional Division (TDCJ-ID). He sought relief under 42 U.S.C.
§ 1983, claiming that his constitutional rights were violated
because he was not allowed to review transcripts of a federal
petition for writ of habeas corpus in order to prepare an appeal

-- 1 of 3 --

2Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
brief. After holding a Spears2 hearing, the trial court granted in
forma pauperis status and dismissed the complaint with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(d). We affirm.
Rasberry argues that the district court erred by using hearsay
testimony and unauthenticated records at the Spears hearing to
dismiss his suit.
The purpose of a Spears hearing is "to flesh out the substance
of a prisoner's claims." Wesson v. Oglesby, 910 F.2d 278, 281 (5th
Cir. 1990). However, the use of hearsay witnesses and
unauthenticated records to counter a prisoner's allegations is
improper. Gilbert v. Collins, 905 F.2d 61, 63 (5th Cir. 1990).
Credibility assessments at a Spears hearing must be made by
assessing "the inherent plausibility of a prisoner's allegations
based on objective factors." Id. (internal quotation and citation
omitted). If a prisoner's version of the facts, as contained in
his complaint and elaborated upon at the Spears hearing "is
inherently plausible and internally consistent, a court may not for
purposes of a § 1915(d) dismissal simply choose to believe
conflicting material facts alleged by the defendants." Wesson, 910
F.2d at 282.
However, Rasberry's argument is without factual foundation
because the district court did not use the alleged hearsay
testimony or the alleged unauthenticated records to address whether
Rasberry was allowed meaningful opportunity to review his records.
The court noted that it was precluded from making a "determination

-- 2 of 3 --

3
as to the credibility of one witness over another, or of one party
over another, in a Spears hearing," citing Wilson v. Barrientos,
926 F.2d 480 (5th Cir. 1991). Rather, the district court
determined that the defendants' actions failed to prejudice
Rasberry's legal position, and concluded that Rasberry did not
state a viable denial-of-access-to-the-courts claim. Rasberry does
not directly challenge this determination.
For the foregoing reasons, Rasberry's appeal is DISMISSED as
frivolous. See 5th Cir. R. 42.2.

-- 3 of 3 --