Case: 21-40500 Document: 00516418103 Page: 1 Date Filed: 08/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 3, 2022
No. 21-40500
Lyle W. Cayce
Clerk
Lisa Marie Searcy,
Plaintiff—Appellant,
versus
Henry Trochesset; Patricia Grady; Joann Fentanes;
Texas Board of Pardons and Paroles; Nicole Olsen;
Haley Sloss; Jack Roady, Galveston County District
Attorney; Jim Yarbrough, Galveston Mayor; Justice
Ken Thompson Frost, Fourteenth Court of Appeals;
Court of Criminal Appeals; Mark Henry, County Judge;
Mark Aronowitz; Texas Commission on Jail Standards,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:21-CV-54
Before Richman, Chief Judge, and Ho and Engelhardt, Circuit
Judges.
Case: 21-40500 Document: 00516418103 Page: 2 Date Filed: 08/03/2022
No. 21-40500
Per Curiam:*
Lisa Searcy, a Galveston County Jail inmate, filed a 42 U.S.C. § 1983
civil rights complaint against a myriad of defendants raising numerous claims
including retaliation, obstruction of access to courts, prosecutorial
misconduct, and ineffective assistance of counsel, among other requests for
relief. The district court dismissed Searcy’s suit with prejudice under 28
U.S.C. § 1915A. Searcy filed a notice of appeal. We affirm.
I
Searcy filed a civil-rights complaint alleging that she was a “victim of
police and state corruption.” She asked the district court to dismiss the
criminal charges against her, release her from custody, and grant her an
injunction against further prosecution and an order of expunction. She also
requested an order terminating the employment and disbarring or revoking
the licenses held by the attorney-defendants.
The district court scrutinized Searcy’s pleadings under the Prison
Litigation Reform Act. Section 1915A(b) of the Act requires the court to
dismiss the complaint if it “is frivolous, malicious, or fails to state a claim
upon which relief may be granted,” or “seeks monetary relief from a
defendant who is immune from such relief.” 1
The district court determined that Searcy could not sue governmental
agencies, such as the Texas Board of Pardons and Paroles, state court judges
and state prosecutors because they were immune from suit. In addition, the
court determined that Searcy’s claims against her defense attorneys should
be dismissed because criminal defense attorneys, even those appointed by the
court, are not state actors for purposes of a § 1983 suit. The court also
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
1
28 U.S.C. § 1915A(b).
2
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concluded that Searcy had not demonstrated that either Mayor Yarbrough or
a state court judge implemented a policy that resulted in a deprivation of her
civil rights.
The district court held that it lacked the power to grant injunctive
relief to Searcy in her state court proceedings and that it lacked authority to
dismiss her pending state criminal charges. To the extent Searcy sought a
release from custody, the court explained that a habeas application was the
correct method by which to seek such relief but declined to recharacterize
her § 1983 suit as a habeas application. The court therefore dismissed
Searcy’s suit with prejudice under § 1915A.
The court also ordered that the dismissal count as a “strike” under 28
U.S.C. § 1915(g). Section 1915(g) bars a prisoner from proceeding in forma
pauperis (IFP) in a civil action or appeal “if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.” 2
The district court granted Searcy leave to proceed IFP on appeal.
Searcy appeals the dismissal of her suit.
II
Because the district court dismissed Searcy’s complaint for failure to
state a claim, as frivolous, and on the ground of immunity, this court reviews
2
28 U.S.C. § 1915(g).
3
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the dismissal de novo. 3 When reviewing a dismissal for failure to state a
claim, the court “accept[s] all well-pleaded facts as true and view[s] those
facts in the light most favorable to the plaintiff.” 4 Nonetheless, a complaint
will not proceed unless it “contain[s] sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” 5 This court will
“not accept as true conclusory allegations, unwarranted factual inferences,
or legal conclusions.” 6
To state a claim under § 1983, a plaintiff must allege a violation of a
right, privilege, or immunity secured by the Constitution or laws of the
United States and must demonstrate that the alleged deprivation was
committed by a state actor, that is, a person acting under color of state law. 7
Searcy sued the Texas Board of Pardons and Paroles, the Texas
Commission on Jail Standards, and the Texas Court of Criminal Appeals.
She also sued other state court judges as well as state prosecutors involved
with her pending criminal charges. Searcy only generally asserts that these
agencies and entities are not immune under the Eleventh Amendment but
does not address the district court’s conclusions that they are
instrumentalities of the State of Texas. 8 She similarly fails to explain why the
3
See Carlucci v. Chapa, 884 F.3d 534, 537 (5th Cir. 2018); Perez v. United States,
481 F. App’x 203, 206 (5th Cir. 2012) (per curiam) (unpublished).
4
Whitley v. Hanna, 726 F.3d 631, 637 (5th Cir. 2013).
5
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted).
6
Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Plotkin v. IP Axess
Inc., 407 F.3d 690, 696 (5th Cir. 2005)).
7
Bryant v. Military Dep’t of Miss., 597 F.3d 678, 686 (5th Cir. 2010).
8
Champagne v. Jefferson Par. Sheriff’s Off., 188 F.3d 312, 313 (5th Cir. 1999)
(“Whether an entity is covered by a State’s Eleventh Amendment immunity turns on the
entity’s (1) status under state statutes and case law, (2) funding, (3) local autonomy,
4
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state prosecutors and state judges are not entitled to immunity. 9 By failing to
contest adequately the district court’s reasons for concluding that these
agencies, entities, and judicial officers were entitled to immunity, she has
forfeited these claims. 10
As to Searcy’s claims against her defense attorneys, court-appointed
lawyers are not state actors for § 1983 purposes when they are performing
traditional functions as counsel in a criminal proceeding. 11 There is no
indication that Searcy’s attorneys were serving in any other function than
that of a traditional criminal defense attorney when representing her.
Therefore, the district court did not err by dismissing Searcy’s claims against
her defense attorneys. 12
Next, Searcy generally asserts that Mayor Yarbrough is not immune
from her § 1983 claims. But she does not address the district court’s
conclusion that there was no evidence Mayor Yarbrough, as a supervisory
official, implemented a policy that resulted in a deprivation of her civil rights.
An official who did not personally participate in the alleged constitutional
deprivation is liable under § 1983 only if he “implement[ed] a policy so
(4) concern with local or statewide problems, (5) ability to sue in its own name, and (6) right
to hold and use property.”).
9
See Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994) (“Judicial officers are entitled
to absolute immunity from claims for damages arising out of acts performed in the exercise
of their judicial functions.”); see also id. at 285 (“Prosecutorial immunity applies to the
prosecutor’s actions in initiating the prosecution and in carrying the case through the
judicial process.”).
10
See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
11
Polk Cnty. v. Dodson, 454 U.S. 312, 317-19 (1981); see also Mills v. Crim. Dist. Ct.
No. 3, 837 F.2d 677, 679 (5th Cir. 1988) (“[P]rivate attorneys, even court-appointed
attorneys, are not official state actors, and generally are not subject to suit under section
1983.”).
12
See Dodson, 454 U.S. at 317-25; Mills, 837 F.2d at 679.
5
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deficient that the policy itself is a repudiation of constitutional rights and is
the moving force of the constitutional violation.” 13 By failing to address the
district court’s reasons for concluding that Mayor Yarbrough was not subject
to supervisory liability, she has forfeited this claim. 14
Searcy’s claim against Sheriff Trochesset similarly fails. The district
court did not specifically address her claim against Sheriff Trochesset, but
she does not address this failure and only generally reiterates her claims
against him in her brief to this court. These conclusory allegations are
insufficient to establish a facially plausible claim. 15
Searcy argues that the district court erred in dismissing her § 1983 suit
without holding an evidentiary hearing. Before dismissing a pro se litigant’s
case, a district court ordinarily must provide an opportunity to amend the
complaint to remedy any deficiencies. 16 The primary means that have
evolved for remedying inadequacies in a prisoner’s pleadings are a Spears 17
evidentiary hearing or a questionnaire. 18 Those methods are unnecessary,
however, “if the plaintiff has already pleaded his best case.” 19 Accordingly,
this court can affirm if the plaintiff fails to state any facts he would have
alleged in an amended complaint to overcome the deficiencies identified by
13
Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (internal quotation marks
and citation omitted).
14
See Hughes, 191 F.3d at 613.
15
See Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010).
16
See Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009).
17
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
18
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
19
Brewster, 587 F.3d at 768 (internal quotation marks and citation omitted).
6
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the district court. 20 Searcy’s conclusory arguments on appeal fail to state any
facts that she could have alleged or supported with discovery to overcome
the district court’s specific reasons for dismissing her claims against each
defendant. She fails to demonstrate that she had not pleaded her best case or
that the district court erred in failing to conduct a Spears hearing or provide
any other opportunities to develop her claims.
Finally, the district court did not err in denying Searcy’s requests to
dismiss her state charges, to provide injunctive relief in her state court
proceedings, and to release her from detainment. A federal court may not
intervene in state court proceedings, such as by dismissing charges, unless
exceptional circumstances are present. 21 Searcy’s general requests for such
action are insufficient to establish those circumstances. Similarly, a district
court has no power to direct state officials in the performance of their duties
by way of injunctive relief. 22 Lastly, the appropriate mechanism for
requesting release from detainment is the federal habeas statute. 23
Searcy has not shown that the district court erred in dismissing her
§ 1983 suit under § 1915A. 24
20
See id.; see also Brown v. Taylor, 829 F.3d 365, 370 (5th Cir. 2016) (vacating when
the record did not reflect that the plaintiff “could not or would not amend his complaint to
allege more specific facts had the district court informed him of such a deficiency”); cf.
Rodgers v. Lancaster Police & Fire Dep’t, 713 F. App’x 323, 325 (5th Cir. 2018) (per curiam)
(unpublished) (affirming dismissal without allowing discovery where the plaintiff did not
indicate “what discovery would have revealed or how it would have affected the district
court’s dismissal of her complaint”).
21
See Younger v. Harris, 401 U.S. 37, 43-45 (1971).
22
See Moye v. Clerk, Dekalb Cnty. Superior Court, 474 F.2d 1275, 1275-76 (5th
Cir. 1973).
23
See Nelson v. Campbell, 541 U.S. 637, 643 (2004).
24
Cf. Carlucci v. Chapa, 884 F.3d 534, 537 (5th Cir. 2018).
7
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III
In addition to dismissing Searcy’s suit, the district court also imposed
a strike against Searcy under § 1915(g). While Searcy references this
potential issue, she does not brief it. “Although we liberally construe the
briefs of pro se appellants, we also require that arguments must be briefed to
be preserved.” 25 Because Searcy has not preserved this issue, we will not
reach it.
* * *
For these reasons, we AFFIRM the district court’s order.
25
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price v. Digital Equip.
Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)).
8