Case: 13-30128 Document: 00512441511 Page: 1 Date Filed: 11/14/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30128 November 14, 2013
Summary Calendar
Lyle W. Cayce
Clerk
KENNETH JAMES MOUTON,
Plaintiff-Appellant
v.
STATE OF LOUISIANA; OFFICE OF DISTRICT ATTORNEY; RONALD
DAUTERIVE; PATRICK MICHOT; WAYNE CLIFTON; HAROLD
REGISTER,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:12-CV-1320
Before HIGGINBOTHAM, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
Kenneth James Mouton, Louisiana prisoner # 328541, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state
a claim. In his complaint, Mouton alleged that he had been convicted of armed
robbery and aggravated criminal damage and sought damages, asserting
various errors that occurred as part of his criminal trial and subsequent
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-30128 Document: 00512441511 Page: 2 Date Filed: 11/14/2013
No. 13-30128
postconviction proceedings. The district court concluded that Mouton’s claims
were barred by Heck v. Humphrey, 512 U.S. 477 (1994). Additionally, Mouton’s
claim against Harold Register was subject to dismissal because Register, as a
private attorney, was not a state actor within the meaning of § 1983. The
claims against Dauterive and Michot were also subject to dismissal on grounds
of absolute immunity.
We review de novo the district court’s dismissal. Hale v. King, 642 F.3d
492, 497 (5th Cir. 2011). Mouton disagrees with the finding that his claims are
barred under Heck. He contends that he is not attempting to overturn his
conviction via a habeas corpus application, but instead is seeking damages for
the alleged constitutional violations. Mouton also reasserts the merits of the
claims he raised in his § 1983 complaint.
The test to determine whether a claim is barred by Heck is not whether
success would invalidate the conviction, but whether a judgment in favor of the
plaintiff would “necessarily imply the invalidity of his conviction or sentence.”
Heck, 512 U.S. at 486-87. Mouton’s arguments regarding ineffective
assistance, prosecutorial misconduct, trial court error, judicial misconduct,
juror misconduct, and wrongful incarceration are all barred by Heck because
these claims are directly related to the validity of his conviction. See id. As
Mouton has failed to establish that his conviction has been reversed, expunged,
declared invalid, or called into question by a federal court’s issuance of a writ
of habeas corpus, the district court did not err in dismissing his complaint for
failure to state a claim. See Heck, 512 U.S. at 486-87.
To the extent that the district court based its dismissal on grounds of
immunity and Register’s status as a private attorney, Mouton has not
adequately briefed any challenge to the district court’s determination and has
abandoned these issues on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25
2
Case: 13-30128 Document: 00512441511 Page: 3 Date Filed: 11/14/2013
No. 13-30128
(5th Cir. 1993). Thus, the appeal is without arguable merit and is thus
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. Mouton’s motion
for the appointment of counsel is denied.
The dismissal of this appeal counts as one strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Mouton has two prior strikes. See Mouton v. State, No. 3:12-CV-236 (M.D. La.
Jan. 8, 2013); Mouton v. John, et al., No. 3:11-CV-225 (M.D. La. Apr. 26, 2011).
Accordingly, he is barred from proceeding IFP in any civil action or appeal filed
in a court of the United States while he is incarcerated or detained in any
facility unless he “is under imminent danger of serious physical injury.”
§ 1915(g).
APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; § 1915(g) BAR IMPOSED.
3