IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 00-10909, 01-10006
Summary Calendar
DONALD L. NELSON,
Plaintiff-Appellant,
versus
CITY OF BURLESON; CHARLES THORN; PAUL PREVIATE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CV-2873-R
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July 6, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Donald L. Nelson, proceeding pro se, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action and its award of
attorney’s fees to the defendants pursuant to 42 U.S.C. § 1988.
Nelson argues that he did state a claim under the Fourth and
Fifth Amendments and that Heck v. Humphrey, 512 U.S. 477 (1994)
did not apply because the defendants were not state actors and
because the presiding judge acted without jurisdiction. Neither
argument demonstrates any error in the conclusion of the district
*
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that this opinion should not be published and is not precedent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.
Nos. 00-10909, 01-10006
-2-
court that Nelson was attempting to challenge his traffic
convictions by way of this § 1983 action for damages without
having first had his convictions set aside by the Texas courts,
which is prohibited by Heck. The district court correctly held
that Nelson’s allegations of due process or other constitutional
violations in his prosecutions for traffic offenses called his
convictions into question and were barred by Heck.
In opposition to the district court’s award of attorney’s
fees, Nelson argues again that Heck does not apply and that his
complaint was not frivolous. The district court correctly
applied Heck and correctly determined that Nelson’s circular,
nonsensical arguments at the hearing as to why Heck did not apply
were frivolous. Nelson argues that there were errors in the
billing statement, but he does not give any specifics. He argues
that the law firm of Tooley & Voss did not have the authority to
represent the defendants in this cause of action according to the
language of the City of Burleson’s Home Rule Charter. Nelson
concedes that the magistrate judge was correct in her
determination that the City was entitled to retain any attorney
it desired to defend this suit. He argues that the law firm
acted without authority because they did not comply with the
requirement to file an Oath of Office with the Secretary of
State. Nelson’s argument is not directed to any of the factors
required to be considered in awarding attorney’s fees under
§ 1988. The district court did not abuse its discretion in
awarding the defendants attorney’s fees under § 1988. United
States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991).
Nos. 00-10909, 01-10006
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Nelson’s appeals have no arguable merit, are frivolous and
are DISMISSED. 5th Cir. R. 42.2. Nelson was placed on notice of
the frivolity of his claims in the magistrate judge’s report and
again by the magistrate judge at the hearing on the defendants’
motion for attorney’s fees. He presents no good faith arguments
for reversal of either judgment on appeal. Appellees’ motions
for sanctions per Fed. R. App. P. 38 are GRANTED in the amount of
double costs plus $2,000 in attorney’s fees.
APPEALS DISMISSED; MOTIONS FOR SANCTIONS GRANTED.