No. 00-40017
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40017
Conference Calendar
GREGORY A. SHANAFELT,
Plaintiff-Appellant,
versus
THE OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS;
COLLIN COUNTY DISTRICT ATTORNEY;
C. SANDAVOL, Judge; GREGORY BREWER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:99-CV-264
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April 13, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Gregory A. Shanafelt, Texas prisoner # 859126, appeals the
district court’s dismissal as frivolous of his 42 U.S.C. § 1983
civil rights complaint. Shanafelt is seeking monetary damages
for an alleged violation of his Sixth and Fourteenth Amendment
rights to compulsory process. Shanafelt contends that the
defendants failed to subpoena a list of witnesses he requested be
present at his criminal trial. Shanafelt was convicted of
*
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that this opinion should not be published and is not precedent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. 00-40017
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burglary of a habitation pursuant to a guilty plea which he
entered after his criminal trial resulted in a hung jury. The
district court dismissed Shanafelt’s § 1983 complaint as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) after it
determined that Shanafelt’s claims were barred under the rule in
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
A review of the record indicates that all but one of the
defendants in this case are immune from suit. Shanafelt’s claims
against the Attorney General of the State of Texas and the Collin
County, Texas, District Attorney are barred by the Eleventh
Amendment. See Esteves v. Brock, 106 F.3d 674, 676-78 (5th Cir.
1997). Shanafelt’s claim against Doris Berry, Assistant District
Attorney of Collin County, Texas, to the extent it is brought
against Berry in her individual capacity, it is barred because
Berry is protected from personal liability by absolute
prosecutorial immunity. Id. at 677. Any official-capacity claim
against Berry is barred by the Eleventh Amendment. Id. at 677
& n.8. Shanafelt’s claim against Judge Sandavol is barred
because the Judge is entitled to absolute judicial immunity.
Mays v. Sudderth, 97 F.3d 107, 110-11 (5th Cir. 1996). The
remaining defendant, Shanafelt’s court-appointed attorney,
Gregory Brewer, is not a state actor and is not subject to suit
under § 1983. Mills v. Criminal Dist. Court #3, 837 F.2d 677,
679 (5th Cir. 1988).
As none of the defendants were properly before the court,
Shanafelt’s claims should have been dismissed with prejudice as
frivolous pursuant to § 1915(e)(2)(B)(i). Marts v. Hines, 117
No. 00-40017
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F.3d 1504, 1505-06 (5th Cir. 1997)(en banc). The district
court’s dismissal of Shanafelt’s § 1983 complaint may be affirmed
on that basis. See Esteves, 106 F.3d at 676 (holding that a
trial court judgment may be affirmed for reasons other than those
relied on at the trial level). Shanafelt’s appeal is without
arguable merit and, thus, frivolous. Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983). As the appeal is frivolous, it is
DISMISSED. 5th Cir. R. 42.2.
The district court’s dismissal of Shanafelt’s complaint and
this court’s dismissal of the appeal as frivolous count as two
“strikes” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Shanafelt is
CAUTIONED that if he accumulates three “strikes” under § 1915(g),
he will not be able to proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See
§ 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.