UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60883
Summary Calendar
CARL LEE STOKES,
Plaintiff-Appellant,
VERSUS
GEORGE WARD, Assistant District Attorney; STATE OF MISSISSIPPI;
ADAMS COUNTY DISTRICT ATTORNEY OFFICE; LISA D. JORDAN, Attorney
at Law; FOREST AL JOHNSON, Circuit Court Judge; RONNIE HARPER,
District Attorney
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi
(5:96-CV1488BrS)
November 21, 1997
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Carl Lee Stokes, proceeding pro se and in forma pauperis
(IFP), filed a 42 U.S.C. § 1983 complaint against the State of
Mississippi; the Adams County District Attorneys’ Office, Circuit
Court Judge Forrest Johnson, District Attorney Ronnie Harper,
*
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this opinion should not be published and is not precedent except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. 96-60883
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Assistant District Attorney George Ward, and defense attorney
Lisa D. Jordan alleging that the defendants conspired to deprive
him of his constitutional rights and a fair trial. The district
court sua sponte dismissed Stokes’ complaint as frivolous. 28
U.S.C. § 1915(e)(2). Stokes appeals. The district court granted
Stokes permission to proceed IFP on appeal.
I.
An IFP complaint may be dismissed as frivolous under
§ 1915(e)(2)(B)(I) if it has no arguable basis in law or in fact.
Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). We review
§1915(e)(2) dismissals for abuse of discretion. Id. We begin by
assessing the defendants’ claims of immunity.
A.
Judicial officers are entitled to absolute immunity from
damages in § 1983 actions arising out of acts performed in the
exercise of their judicial functions. Krueger v. Reimer, 66 F.3d
75, 77 (5th Cir. 1995). This immunity is not affected by the
alleged magnitude of the judge’s errors or the mendacity of his
acts. Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).
Judicial immunity can be overcome only by showing that the
actions complained of were nonjudicial in nature or by showing
that the actions were taken in the absence of jurisdiction. Id.
Loose charges of conspiracy unsupported by specific factual
allegations are insufficient to state a § 1983 violation. See
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Mills v. Criminal District Court #3, 837 F.2d 677, 679 (5th Cir.
1988).
Conduct is judicial in nature if it is “normally performed
by a judge and the parties affected dealt with the judge in his
judicial capacity.” Boyd, 31 F.3d at 285 (quotations omitted).
Conversing with counsel regarding the docket and controlling the
court’s docket are judicial functions. Because the conduct of
which Stokes complains was judicial in nature, Stokes’ claims
against Judge Johnson are barred by the absolute immunity of the
judge.
B.
“Criminal prosecutors also enjoy absolute immunity from
claims for damages asserted under § 1983 for actions taken in the
presentation of the State’s case.” Boyd, 31 F.3d at 285. This
immunity extends to acts undertaken in the course of the
prosecutor’s role as an advocate for the State. Id.
Stokes complains of Ward’s conduct during closing argument,
which is an integral part of carrying the State’s case through
the judicial process. Even if we accept as true Stokes’
allegation that Ward made a racially discriminatory remark in
closing, Ward’s conduct is protected by the doctrine of absolute
immunity. Esteves v. Brock, 106 F.3d 674, 677 (5th Cir. 1997).
Stokes’ speculative allegations that Ward and Harper
conspired with the other defendants to convict him are
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insufficient to establish § 1983 liability. Mills, 837 F.2d at
679. Further, Stokes has not alleged personal conduct by Harper,
which is an essential element of a § 1983 cause of action.
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
C.
The Supreme Court has consistently held that the Eleventh
Amendment confers absolute immunity on an unconsenting state or
its “arms” from suits brought in federal court by the state's own
citizens. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993). "This jurisdictional bar
applies regardless of the nature of the relief sought."
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984). Section 1983 does not include a waiver of the states'
sovereign immunity. Quern v. Jordan, 440 U.S. 332, 338-40
(1979). The State of Mississippi is absolutely immune from suit
under the Eleventh Amendment. See Bogard v. Cook, 586 F.2d 399,
410 (5th Cir. 1978). Stokes’ claims against the State are
frivolous.
Stokes also contends that the Adams County D.A.’s Office is
liable for Ward’s actions in the prosecution of Stokes. The
doctrine of respondeat superior does not apply in § 1983 actions.
Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990). Ward’s
actions alone cannot make the D.A.’s Office liable. The D.A.’s
Office can be liable for establishing an unconstitutional policy,
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however. Krueger, 66 F.3d at 77. Stokes has not previously
asserted, nor does he assert on appeal, that the D.A.’s Office
implemented any unconstitutional policy. Stokes’ claim against
the D.A.’s Office has no basis in law.
D.
Stokes concedes that his attorney, Jordan, is not a state
actor, but Stokes contends that she is liable under § 1983
because she conspired with Judge Johnson and prosecutors Ward and
Harper to plot against Stokes and to convict him in a sham trial.
A state prisoner’s claim for damages is not cognizable under §
1983 if a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence unless the
prisoner can demonstrate that the conviction or sentence
previously has been invalidated. Heck v. Humphrey, 512 U.S. 477,
487 (1984). A § 1983 claim that falls under the rule in Heck is
frivolous. Boyd, 31 F.3d at 283.
Stokes’ allegations against Jordan that she conspired with
the other defendants to convict him in a sham trial necessarily
imply the invalidity of his conviction. See Heck, 512 U.S. at
487. Because Stokes has not demonstrated the invalidity of the
conviction, his claim is not cognizable under § 1983 and is
frivolous. See Boyd, 31 F.3d at 283.2
2
To the extent that Stokes alleges that he should not be
confined because of his attorney’s ineffective assistance, that
portion of his complaint must be pursued through a petition for
the writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S.
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II.
The district court did not abuse its discretion in
dismissing Stokes’ § 1983 complaint as frivolous. Stokes’ appeal
is without arguable merit and is frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). Stokes’ appeal is
DISMISSED. 5th Cir. R. 42.2.
475, 500 (1973).
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