United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 12, 2004
Charles R. Fulbruge III
Clerk
No. 04-40200
Summary Calendar
DESIREE A. SHAW,
Plaintiff-Appellant,
versus
CHARLIE HARRIS; GERALD A. GOODWIN; CLYDE HERRINGTON, District
Attorney for Angelina County, TX; JOHN R. HEATH, SR., Attorney at
Law; CLAYTON CARROLL RICHARDSON; VIVIAN BROOKS; JAMES BRUCE, Dr.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:03-CV-194
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Desiree Shaw, Texas prisoner no. 769352, appeals the
dismissal of her 42 U.S.C. § 1983 action. Shaw is serving a 32-
year sentence for the 1996 murder of her husband. She alleged
primarily that the defendants conspired to violate her
constitutional right to due process by concealing or tampering
with evidence, prosecuting her based on false evidence and
perjury, and submitting false evidence at her state habeas corpus
*
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this opinion should not be published and is not precedent except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. 04-40200
-2-
proceeding. She also contends that some of the defendants
defamed her, that one defendant deprived her mortally wounded
husband of emergency medical care, and that one defendant
rendered ineffective assistance of counsel. Shaw did not seek
damages, but requested injunctive and declaratory relief that
would ensure her “meaningful” access to the courts. We review de
novo claims dismissed pursuant to 28 U.S.C. § 1915A. Ruiz v.
United States, 160 F.3d 273, 275 (5th Cir. 1998).
The district court properly concluded that the vast majority
of Shaw’s claims are barred by the rule of Heck v. Humphrey, 512
U.S. 477, 487 (1994). If, in an action under 42 U.S.C. § 1983,
“a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence . . . the complaint must
be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” Heck, 512
U.S. at 487. Heck applies to claims for injunctive relief that
imply the invalidity of the conviction. Kutzner v. Montgomery
County, 303 F.3d 339, 340-41 (5th Cir. 2002).
Shaw does not show that her conviction has already been
reversed on appeal or otherwise invalidated through proper
channels of postconviction relief. A decision granting Shaw
injunctive or declaratory relief on her allegations of evidence
tampering and concealment, perjury, ineffectiveness of counsel,
prosecutorial misconduct, or the filing of false affidavits in
her state habeas corpus proceeding, including any defamation
No. 04-40200
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claims based on those affidavits, would necessarily imply that
her conviction was invalid. Thus, all of those claims are barred
by Heck.
To the extent Shaw asserts claims that are not barred by
Heck but which occurred prior to or contemporaneously with her
conviction, such as her claim of denial of emergency medical
care, such claims are barred by the Texas statute of limitations
for tort actions that applies in 42 U.S.C. § 1983 actions. See
Burrell v. Newsome, 833 F.2d 416, 420 (5th Cir. 1989).
We affirm the dismissal of Shaw’s claims against District
Attorney Clyde Herrington and Judge Gerald Goodwin on grounds of
absolute prosecutorial and judicial immunity. See Imbler v.
Pachtman, 424 U.S. 409, 427-28 (1976) (prosecutorial immunity);
Dennis v. Sparks, 449 U.S. 24, 27 (1980) (judicial immunity).
Shaw fails to address the district court’s dismissal of her
claim against Dr. Brooks or any defamation claim that did not
concern the defendants’ state habeas affidavits. She therefore
waives appeal of those claims. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (issues not briefed are abandoned); see
also Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987) (noting that general arguments are
insufficient to preserve issues for appeal and that this court
need not construct arguments or theories for pro se appellants).
Shaw’s contentions in this court that the district court
should have ordered discovery or held an evidentiary hearing are
No. 04-40200
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without merit. Discovery and a hearing are not required prior to
dismissal under 28 U.S.C. § 1915A, and Shaw has shown no need for
either discovery or a hearing.
The judgment of the district court is AFFIRMED.
Shaw’s motion for appointment of counsel is DENIED.
JUDGMENT AFFIRMED; ALL MOTIONS DENIED