United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-41647
Conference Calendar
CAROLYN FOSTER; MURRELL FOSTER,
Plaintiffs-Appellants,
versus
BILLY DALE MOYE, An Individual; Donald W. Capshaw,
Individually,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-63
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Carolyn and Murrell Foster appeal the dismissal of their
42 U.S.C. § 1983 suit pursuant to FED. R. CIV. P. 12(b)(6) for
failure to state a claim. We dismiss the appeal as frivolous.
Judge Moye is absolutely immune from liability. See
Brinkmann v. Johnston, 793 F.2d 111, 112 (5th Cir. 1986). The
Fosters’ challenge to Judge Moye’s credentials is a question for
*
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that this opinion should not be published and is not precedent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. 02-41647
-2-
the Texas courts and does not affect his immunity from suit. Cf.
Holloway v. Walker, 765 F.2d 517, 523-24 (5th Cir. 1985).
The Fosters’ allegation that defendant Capshaw, a private
party, is liable because he conspired with Judge Moye, a state
actor, to deprive them of their rights to access the courts is
conclusional and therefore insufficient to survive Rule 12(b)(6)
dismissal. See Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th
Cir. 1987).
This appeal is without arguable merit and is therefore
dismissed. See 5th Cir. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The Fosters’ pleadings contain several
unflattering references to the district judge and opposing
counsel. The Fosters are cautioned that the use of abusive
language in future pleadings will not be tolerated and will be
stricken. See Theriault v. Silber, 579 F.2d 302, 302 (5th Cir.
1978).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.