IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20902
Conference Calendar
NICHOLAS J. BABINEAUX,
Plaintiff-Appellant,
versus
TOMMY B. THOMAS; DENISE COLLINS, Judge;
208TH DISTRICT COURT HARRIS COUNTY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-1674
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August 26, 1999
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Nicholas J. Babineaux filed the instant lawsuit under 42
U.S.C. § 1983 alleging that Harris County Sheriff Tommy B. Thomas
and Texas District Court Judge Denise Collins had violated his
constitutional rights during criminal proceedings which resulted
in his conviction for aggregate theft. The district court
granted Thomas’s motion to dismiss the claim against him pursuant
to Fed. R. Civ. P. 12(b)(6), and dismissed the remaining claims
as frivolous pursuant to 28 U.S.C. § 1915(e)(2).
*
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that this opinion should not be published and is not precedent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. 98-20902
-2-
We review the dismissal under Rule 12(b)(6) de novo, and we
will not affirm the dismissal unless no relief could be granted
according to any set of facts that could be proven consistent
with the allegations. See Holmes v. Texas A&M Univ., 145 F.3d
681, 683 (5th Cir. 1998). Because Babineaux failed to allege
facts that stated a claim against Thomas, both in his official
and individual capacities, see Monell v. Department of Social
Servs. of City of New York, 436 U.S. 658, 694 (1978); Lozano v.
Smith, 718 F.2d 756, 768 (5th Cir. 1983), the district court
properly granted Thomas’s motion to dismiss.
The district court may dismiss an IFP complaint as frivolous
under § 1915(e)(2)(B)(i) if it lacks an arguable basis in law or
fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
We review such a dismissal for an abuse of discretion. Id.
Examination of Babineaux’s claims reveals that they lack an
arguable basis in law or fact. See Mays v. Sudderth, 97 F.3d
107, 110-11 (5th Cir. 1996)(judges have absolute immunity for
judicial acts performed in judicial proceedings even if the
action taken was in error, done maliciously, or exceeded her
authority, unless the act was taken in the clear absence of all
jurisdiction); Mills v. Criminal Dist. Court #3, 837 F.2d 677,
679 (5th Cir. 1988)(court-appointed defense attorneys are not
official state actors and are generally not subject to suit under
§ 1983).
No. 98-20902
-3-
Because Babineaux’s appeal has no arguable merit, it is
DISMISSED AS FRIVOLOUS.1 See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
1
Babineaux was no longer incarcerated when he filed the
instant notice of appeal. The dismissal of the instant appeal as
frivolous is therefore not counted as a strike against him for
purposes of 28 U.S.C. § 1915(g). The district court’s dismissal
of the instant action, however, is a strike. See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996).