IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10112
Conference Calendar
AMARIO LYNN MCPHERSON,
Plaintiff-Appellant,
versus
TIM CURRY, Tarrant County District Attorney;
TARRANT COUNTY GRAND JURY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CV-1541-Y
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Amario Lynn McPherson, Texas prisoner No. 743366, appeals
the district court’s dismissal of his complaint pursuant to 28
U.S.C. §§ 1915A (b)(1) and 1915(e)(2)(b). McPherson alleged in
his complaint that Tarrant County, Texas, District Attorney Tim
Curry conspired with members of the Tarrant County Grand Jury to
issue a fraudulent indictment against McPherson. McPherson
sought relief under 42 U.S.C. §§ 1981, 1983, and 1987; the
*
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that this opinion should not be published and is not precedent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. 01-10112
-2-
Racketeer Influenced and Corrupt Organizations (RICO) statute, 18
U.S.C. § 1961(l); and various federal criminal statutes.
The district court determined that McPherson’s § 1983 and
1981 civil rights claims were time-barred; that his RICO claims
were frivolous; and that no private causes of action existed
under § 1987 or any of the criminal statutes cited by McPherson.
On appeal, McPherson challenges only the dismissal of his
claims under § 1983. He has thus abandoned the other grounds for
recovery that he raised in the district court. Evans v. City of
Marlin, Tex., 986 F.2d 104, 106 n.1 (5th Cir. 1993); FED. R. APP.
P. 28(a)(6).
We find no error in the district court’s determination that
McPherson’s § 1983 claims were not timely filed. Denton v.
Hernandez, 504 U.S. 25, 31-34 (1992). In any event, we note that
McPherson’s claims are frivolous because both the district
attorney and members of the grand jury are entitled to absolute
prosecutorial immunity from claims under § 1983. Martone v.
McKeithen, 413 F.2d 1373, 1375-76 (5th Cir. 1969); see Sojourner
T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
McPherson’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 and the dismissal as frivolous
by the district court each count as a "strike" for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). McPherson, therefore, has two "strikes" under
No. 01-10112
-3-
28 U.S.C. § 1915(g). We caution McPherson that once he
accumulates three strikes, he may not proceed in forma pauperis
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 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.