Case: 16-50048 Document: 00513969013 Page: 1 Date Filed: 04/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50048
Fifth Circuit
FILED
Summary Calendar April 26, 2017
Lyle W. Cayce
COLLINS O. NYABWA, Clerk
Plaintiff-Appellant
v.
JUDGE SHARON KELLER; JUDGE LAWRENCE E. MYERS; JUDGE BERT
RICHARDSON; JUDGE KEVIN YEARY; JUDGE CHERYL L. JOHNSON;
JUDGE MICHAEL KEASLER; JUDGE BARBARA HERVEY; JUDGE ELSA
ALCALA; JUDGE DAVID NEWELL,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:15-CV-735
Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: ∗
Collins O. Nyabwa, former Texas prisoner # 1729106, filed a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983 against nine judges on the Texas
Court of Criminal Appeals alleging that they violated his due process rights by
delaying action on his legal claims. He sought $5 million in damages. In
∗
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 16-50048 Document: 00513969013 Page: 2 Date Filed: 04/26/2017
No. 16-50048
response to Nyabwa’s motion to proceed in forma pauperis, the district court
dismissed his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) because he
sought only money damages from defendants who are immune from such suits.
On appeal, Nyabwa contends that the defendants were not entitled to
absolute immunity because they are elected and should therefore be considered
politicians. He alleges that, because the defendants are subject to political
influence, their actions or inactions (1) are taken outside of a judicial capacity
and (2) occur in the complete absence of all jurisdiction. He admits that he can
find no precedent from this court supporting his argument.
As to claims for money damages, judges are generally entitled to absolute
immunity for acts performed in the exercise of their judicial functions. Mireles
v. Waco, 502 U.S. 9, 9-10 (1991); Boyd v. Biggers, 31 F.3d 279, 284-85 (5th Cir.
1994). Although Nyabwa correctly cites to the two instances in which a judge
is not protected by absolute immunity, his argument that the judge’s elected
status renders those exceptions applicable lacks merit. We join our sister
circuits in rejecting the proposition that state judges are not entitled to
absolute immunity simply because they are elected. See Goldstein v. Galvin,
719 F.3d 16, 29 & n.3 (1st Cir. 2013); Keystone Redevelopment Partners, LLC
v. Decker, 631 F.3d 89, 98 n.4 (3d Cir. 2011); Tobin for Governor v. Illinois State
Bd. of Elections, 268 F.3d 517, 526 (7th Cir. 2001); Brown v. Griesenauer, 970
F.2d 431, 439 (8th Cir. 1992).
In his complaint, Nyabwa challenged the defendants’ actions or inactions
in their judicial capacities. Accordingly, the defendants were entitled to
absolute immunity from Nyabwa’s claims for damages. See Boyd, 31 F.3d at
284-85. The district court therefore properly dismissed Nyabwa’s complaint
under § 1915(e)(2)(B)(iii).
AFFIRMED.
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