United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-10463
Summary Calendar
CALVIN M. SMALL,
Plaintiff-Appellant,
versus
DALLAS COUNTY, TEXAS; JIM HAMLIN, District Clerk;
MANNY ALVAREZ, 5th Criminal District Court; JIM MOORE,
Attorney,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CV-1427
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Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.
PER CURIAM:*
Calvin M. Small, Texas prisoner # 1014715, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
complaint for failure to state a claim upon which relief may be
granted pursuant to FED. R. CIV. P. 12(b)(6). Small argues that the
district court erred in dismissing his claim against Judge Manny
Alvarez based on absolute immunity. Small’s reliance on Turner v.
Upton County, 915 F.2d 133, 138 (1990), is misplaced as it did not
*
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opinion should not be published and is not precedent except under the limited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.
hold that a judge who has absolute immunity may be held liable for
the actions of his alleged coconspirators. See Holloway v. Walker,
765 F.2d 517, 522 (5th Cir. 1998) (“It is a well settled rule that
where a judge’s absolute immunity would protect him from liability
for the performance of particular acts, mere allegations that he
performed these acts pursuant to a bribe or conspiracy will not be
sufficient to avoid immunity.”). Because Small has not shown that
the actions complained of were nonjudicial in nature or were taken
in the complete absence of jurisdiction, the district court did not
err in holding that Judge Alvarez was entitled to absolute
immunity. See Mireless v. Waco, 502 U.S. 9, 11-12 (1991); Boyd v.
Biggers, 31 F.3d 279, 284 (5th Cir. 1994).
Small argues that the district court erred in dismissing his
claim against his attorney, Jim Moore. Small’s claim against Moore
is not cognizable under § 1983 because a defense attorney in a
criminal proceeding is not a state actor. Hudson v. Hughes,
98 F.3d 868, 873 (5th Cir. 1996). Further, Small’s allegations of
a conspiracy are conclusional and do not suffice to state a civil
rights conspiracy. See Mills v. Criminal District Court #3,
837 F.2d 677, 679 (5th Cir. 1988); see also Hale v. Harney,
786 F.2d 688, 690 (5th Cir. 1986).
Small also argues that the district court erred in dismissing
his claims based on Heck v. Humphrey, 512 U.S. 477 (1994), and he
relies on Wilkinson v. Dotson, 544 U.S. 74, 125 S. Ct. 1242 (2005).
2
Small has not shown that his claim would not necessarily imply the
invalidity of his conviction. Therefore, the district court did
not err in holding that Small’s claims were barred by Heck.
See Heck, 512 U.S. at 486-87; Kutzner v. Montgomery County,
303 F.3d 339, 340-41 (5th Cir. 2002).
The district court’s judgment may be affirmed on any ground
apparent from the record. United States v. McSween, 53 F.3d 684,
687 n.3 (5th Cir. 1992). Jim Hamlin, Clerk of the district court,
is entitled to absolute immunity as Small has not alleged that any
of his actions were not taken under court order or at a judge’s
discretion. See Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001).
Further, Small’s unsupported conclusional allegations are
insufficient to establish a conspiracy between Hamlin and Dallas
County. See Mills, 837 F.2d at 679; Hale, 786 F.2d at 690.
AFFIRMED.
3