IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2009
No. 08-60501
Summary Calendar Charles R. Fulbruge III
Clerk
DEBORAH CHAMPLUVIER
Plaintiff-Appellant
v.
ALLEN B COUCH JR, In His Individual Capacity
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:08-CV-15
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Deborah Champluvier appeals the district court’s dismissal of her civil
action against Allen B. Couch, Jr., the prosecutor in her criminal trial on charges
for embezzlement, for failure to state a claim upon which relief may be granted
pursuant to FED. R. CIV. P. 12(b)(6). The district court denied Champluvier’s in
forma pauperis (IFP) motion and certified that the appeal was not taken in good
faith. Champluvier has filed a motion for leave to proceed IFP on appeal in this
*
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should not be published and is not precedent except under the limited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. 08-60501
court, challenging the district court’s certification. Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997).
An IFP complaint dismissed for failure to state a claim is reviewed
de novo. Black v. Warren, 134 F.3d 732, 734 (5th Cir.1998). The “court accepts
all well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.
2007) (internal quotation marks and citation omitted). “However, conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass’n,
987 F.2d 278, 284 (5th Cir. 1993).
Champluvier argues that she is not a prisoner and did not file her IFP
motion under 28 U.S.C. § 1915. This argument lacks merit. In both prisoner
and nonprisoner litigation, a district court may deny a motion for leave to appeal
IFP by certifying that the appeal is not taken in good faith and by providing
written reasons for the certification. Baugh, 117 F.3d at 202; see also Kuylen v.
Whitfield, 244 F.3d 137 (5th Cir. 2000) (unpublished) (applying Baugh and 28
U.S.C. § 1915(a)(3) to nonprisoner IFP motion).
Champluvier argues that the district court erred in determining that her
complaint was filed pursuant to 42 U.S.C. § 1983. The district court did not err
in determining that the proper vehicle for raising constitutional claims against
state officials is a § 1983 action. See Planned Parenthood of Houston and
Southeast Texas v. Sanchez, 480 F.3d 734, 739 (5th Cir. 2007); Burns-Toole,
D.D.S. v. Byrne, D.D.S., 11 F.3d 1270, 1273 n.3 (5th Cir. 1994).
Champluvier argues that the district court erred in dismissing her
complaint for failure to state a claim upon which relief may be granted and in
holding that Couch had absolute immunity from liability for his actions taken
as a prosecutor. Champluvier’s arguments are conclusional. Champluvier has
not shown that the prosecutor was not entitled to immunity because he was
acting beyond the scope of his authority. The issue whether the criminal statute
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No. 08-60501
applied to her was not decided until the Mississippi Supreme Court ruled in her
direct appeal that the statute did not apply to her company, which was a
Mississippi Limited Liability company. Even if the prosecutor acted in error,
maliciously, or in excess of his authority, he would not be subject to liability
because Champluvier has not shown that he “acted in the clear absence of all
jurisdiction.” See Kerr v. Lyford, 171 F.3d 330, 337 (5th Cir. 1999) (internal
quotation marks and citation omitted), abrogated on other grounds, Castellano
v. Frazogo, 352 F.3d 939 (5th Cir. 2003). To the extent Champluvier is arguing
that Couch violated her rights under the Mississippi Constitution and is not
entitled to immunity because the Mississippi Supreme Court has held that when
one’s constitutional rights are violated there is no immunity, she may not raise
this claim for the first time on appeal. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999). Champluvier has not identified any error in the
following determinations of the district court: Couch’s actions were taken during
the course and scope of his duties as a prosecutor; Couch was entitled to absolute
immunity from liability for his actions as a prosecutor; Champluvier’s claims
under the Fifth, Eighth, and Fourteenth Amendments lack merit; and
Champluvier’s malicious prosecution claim is not a constitutional claim
cognizable under § 1983. Champluvier has not shown that her “mental anguish”
claim is a separate legal claim based on the United States Constitution or
federal statute which is cognizable under § 1983; she has not adequately briefed
this issue. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).
Champluvier has failed to identify any nonfrivolous ground for appeal, and
the record shows that she failed to state a cause of action against Couch.
Therefore, her motion to appeal IFP is denied, and her appeal is dismissed as
frivolous. 5TH CIR. R. 42.2; see Howard, 707 F.2d at 219-20.
IFP MOTION DENIED; APPEAL DISMISSED.
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