United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10681
Summary Calendar
JASON DEWORD DADE,
Plaintiff-Appellant,
versus
HAROLD ENTZ, Judge, 194th District; NFN THOMAS, Justice, Judge,
5th District of Appeals; NFN FITZGERALD, Justice, Judge, 5th
District of Appeals; CHARLES CAMPBELL, Judge, 5th District of
Appeals; LEGISLATURE STATE OF TEXAS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CV-00228
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Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jason DeWord Dade, Texas state prisoner # 1115939, appeals
the dismissal of his pro se, in forma pauperis 42 U.S.C. § 1983
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)
and 28 U.S.C. § 1915A(b)(1). Dade argues that the district court
judge who convicted and sentenced him, and the appellate court
judges who affirmed his conviction, violated his constitutional
*
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that this opinion should not be published and is not precedent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. 03-10681
-2-
rights. He also argues that the Texas legislature violated his
constitutional rights when it enacted various laws.
Dade’s complaint lacks an arguable basis in law. He has
sued judicial officers who are immune from suit, without
identifying facts that would overcome judicial immunity. See
Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). He has also
sued the Texas legislature, which enjoys Eleventh Amendment
immunity. See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993). Additionally, the issues
Dade raises imply the invalidity of his conviction and sentence.
Dade’s conviction was not reversed on direct appeal, and there is
no indication in the record that it was expunged by an executive
order, declared invalid by a state tribunal authorized to make
such a determination, or called into question by a federal
court’s issuance of a writ of habeas corpus. Therefore, Dade has
failed to state a claim for a § 1983 constitutional violation.
See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996); Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994). Although the district
court’s dismissal was based on other grounds, we may dismiss this
appeal on the alternate grounds of immunity and failure to
satisfy the conditions set forth in Heck. See Sojourner T. v.
Edwards, 974 F.2d 27, 30 (5th Cir. 1992) (court may affirm
judgment on any basis supported by the record).
The appeal is frivolous and is therefore DISMISSED. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
No. 03-10681
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R. 42.2. The dismissal of this appeal and the district court’s
dismissal 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). Dade is WARNED that if 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 AS FRIVOLOUS; SANCTIONS WARNING ISSUED.