IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40819
Conference Calendar
STEPHAN STROUD,
Plaintiff-Appellant,
versus
VANCE PATTON; KELLY KOCK KOLPAC; SCOTT ELLISON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-99-CV-505
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December 13, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Stephan Stroud, Texas prisoner #745916, appeals from the
dismissal of some of his civil rights claims as frivolous and the
dismissal of his remaining claims without prejudice so that he
may pursue habeas corpus relief on those claims. Stroud argues
in relevant part that the defendants, all private attorneys,
conspired with the prosecutor in his case and that the district
judge should have recused herself in his case.
Stroud provides no specific allegations indicating that any
conspiracy existed. Conclusional allegations of conspiracy do
*
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that this opinion should not be published and is not precedent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. 00-40819
-2-
not give rise to federal constitutional claims. Babb v. Dorman,
33 F.3d 472, 476 (5th Cir. 1994). The defendants could not be
liable for any civil rights violation arising from their
representation of Stroud unless they were conspiring with a state
actor. See Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).
Stroud does not contend that the district court erred by
dismissing his ineffective-assistance and coerced-plea
contentions without prejudice. He has abandoned any such
contention for appeal. In re Mun. Bond Reporting Antitrust
Litig., 672 F.2d 436, 439 n.6 (5th Cir. 1982).
Stroud’s allegations regarding the district judge do not
indicate that a reasonable person would question the district
judge’s impartiality. United States v. Bremers, 195 F.3d 221,
226 (5th Cir. 2000). The denial of Stroud’s recusal motion was
not an abuse of discretion. Id.
Stroud’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.
42.2. The dismissal of this appeal as frivolous counts as a
“strike” for purposes of 28 U.S.C. § 1915(g), as does the
district court’s dismissal of Stroud’s complaint as frivolous.
See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Stroud therefore has two “strikes” under 28 U.S.C. § 1915(g).
Stroud is warned that if he accumulates three “strikes” pursuant
to 28 U.S.C. § 1915(g), he may not proceed in forma pauperis in
any civil action or appeal filed while he is incarcerated or
No. 00-40819
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detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED. 5TH CIR. R. 42.2.