IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60904
Conference Calendar
DESHON SANDERS,
Plaintiff-Appellant,
versus
U.S. JUSTICE COURT OF SUNFLOWER COUNTY; ROBERT L. JOHNSON,
MISSISSIPPI DEPARTMENT OF CORRECTIONS, Commissioner;
FRANK L. MCWILLIAMS, Attorney at Law; JOHN BURRELL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:00-CV-337-D-B
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April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Deshon Sanders, Mississippi prisoner # 84225, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action for
failure to state a claim upon which relief may be granted.
Sanders’ motion for appointment of counsel is DENIED. Sanders
argues that Judge Burrell and prosecutor McWilliams violated
their duties, thereby taking themselves outside the scope 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that this opinion should not be published and is not precedent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. 01-60904
-2-
immunity, by failing to bring criminal charges against the
individuals who allegedly assaulted him.**
A 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal for failure to
state a claim is reviewed under the same de novo standard as a
dismissal under FED. R. CIV. P. 12(b)(6). Black v. Warren, 134
F.3d 732, 733-34 (5th Cir. 1998).
Judicial officers are entitled to absolute immunity from
damage claims under 42 U.S.C. § 1983 arising out of acts
performed in the exercise of their judicial functions. Graves v.
Hampton, 1 F.3d 315, 317 (5th Cir. 1993). “[J]udicial immunity is
not overcome by allegations of bad faith or malice.” Mireles v.
Waco, 502 U.S. 9, 11 (1991). A judge is not deprived of immunity
because the action taken was in error. Id. at 12-13. A judge’s
immunity is overcome only for actions not taken in the judge’s
judicial capacity or action taken in complete absence of all
jurisdiction. Id. at 11-12. Sanders does not identify any facts
which would overcome Judge Burrell’s judicial immunity. The
district court correctly dismissed Sanders’ claim against Judge
Burrell based on absolute judicial immunity.
A criminal prosecutor is immune from civil suit for damages
under 42 U.S.C. § 1983 in presenting the state's case. Imbler v.
Pachtman, 424 U.S. 409, 431 (1976). “The decision to file or not
file criminal charges falls within this category of acts that
**
Sanders does not address his claim for injunctive relief
on appeal, and it is considered abandoned. Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993).
No. 01-60904
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will not give rise to section 1983 liability.” Oliver v.
Collins, 904 F.2d 278, 281 (5th Cir. 1990) (dismissing prisoner’s
42 U.S.C. § 1983 claim against sheriff for failure to press
charges against correctional officers involved in an alleged
assault). The district court correctly dismissed Sanders’ claim
against prosecutor McWilliams.
Sanders’ 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. Sanders is hereby informed that the dismissal of this
appeal as frivolous counts as a strike for purposes of 28 U.S.C.
§ 1915(g), in addition to the strike for the district court’s
dismissal for failure to state a claim upon which relief may be
granted. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of
[§ 1915(g)].”). We caution Sanders that once he accumulates
three strikes, he may not 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; MOTION DENIED.