IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41263 Summary Calendar

STEVE ALAN BAKER et al.,

Plaintiffs,

STEVE ALAN BAKER,

Plaintiff-Appellant,

versus

STATE OF TEXAS; TEXAS BOARD OF CRIMINAL JUSTICE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION COMPANY DEPARTMENTS; UT MEDICAL BRANCH; MANAGED HEALTH CARE SYSTEM, et al.,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CV-692 --------------------

October 27, 1999

Before GARWOOD, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

The district court ordered that Steve Alan Baker’s (#632428)

civil rights action be held in abeyance because Baker became mute

and could not give testimony during hearings held pursuant to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-41263 -2-

Spears v. McCotter,

(5th Cir. 1985). Baker has

appealed. The district court’s order is an appealable

interlocutory order under the collateral-order doctrine. See

Johnson v. State of Texas,

(5th Cir. 1989).

We review the district court’s order, which adopted the

findings and conclusions contained in the report and

recommendation of the magistrate judge, for an abuse of

discretion. See

. Although the magistrate judge noted

that administrative closure is appropriate “if circumstances

prevent a lawsuit from proceeding” and “only ‘as a last resort

after all other alternatives . . . have been rejected,’” see

Patton v. Jefferson Correctional Center,

, 461 n.3

(5th Cir. 1998), she did not explain why the lawsuit cannot

proceed because of Baker’s muteness and did not expressly

consider and reject other alternatives.

The Spears procedure is itself an alternative to requiring

responses to written questions. See Eason v. Holt,

(5th Cir. 1996). Although the magistrate judge stated that

she was “unable to determine whether Plaintiff even had stated a

cause of action, which it why this Court attempted to conduct a

Spears hearing,” she did not explain how the complaint is

inadequate and why those inadequacies could not be fleshed out

through written interrogatories. The district court’s order is

VACATED, and the case is REMANDED for further proceedings.

VACATED AND REMANDED.