IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60447
Summary Calendar
MATTIE B. POLK; TERRENCE POLK; MERLINDA POLK,
Plaintiffs-Appellants,
versus
ANTHONY FARESE, Attorney at Law; MARY JANE LEMON,
Special Assistant Attorney General, State of Mississippi;
STATE OF MISSISSIPPI,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:96-CV-131 SAA
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May 13, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Mattie B. Polk and her son and daughter-in-law Terrence and
Merlinda Polk (“the Polks”) appeal the district court’s grant of
summary judgment in favor of the defendants in their civil rights
action, filed pro se pursuant to 42 U.S.C. § 1983. The Polks
sued private attorney Anthony Farese, Assistant Attorney General
Mary Jane Lemon, and the State of Mississippi, alleging that the
defendants had violated their constitutional rights in taking
*
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that this opinion should not be published and is not precedent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. 97-60447
-2-
various property in a civil forfeiture proceeding.
We review the district court’s grant of summary judgment de
novo. Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1326
(5th Cir. 1996). For the same reasons given by the magistrate
judge, the defendant Lemon is entitled summary judgment based
upon absolute prosecutorial immunity and qualified immunity. See
Polk v. Farese, No. 3:96-CV-131-A (N.D. Miss. June 10, 1997);
Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Alexander v.
Ieyoub, No. 92-4278 (5th Cir. July 2, 1993) (slip op.); Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982).
Also for the reasons given by the magistrate judge, private
attorney Farese is entitled to summary judgment because the Polks
failed to demonstrate that he acted under “color of state law.”
See Polk, supra; Leffall v. Dallas Indep. Sch. Dist., 28 F.3d
521, 525 (5th Cir. 1994).
The magistrate judge correctly determined that the State of
Mississippi was entitled to absolute immunity under the Eleventh
Amendment. Puerto Rico Aqueduct and Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993).
The magistrate judge did not abuse his discretion in
declining to enter a default judgment against defendants Lemon
and the State. See Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir.
1996).
AFFIRMED.