Case: 11-30715 Document: 00511872588 Page: 1 Date Filed: 05/31/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 31, 2012
No. 11-30715
Summary Calendar Lyle W. Cayce
Clerk
ALVIN ELZY,
Plaintiff-Appellant
v.
LOUISIANA STATE; CRIMINAL DISTRICT COURT, Case Number 292-307,
Section J,
Defendants-Appellees
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-964
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Alvin Elzy, Louisiana prisoner # 1000252372, proceeding pro se and in
forma pauperis (IFP), filed a civil rights complaint under 42 U.S.C. § 1983
naming the State of Louisiana as a defendant. He asserted that he was
convicted and sentenced for attempted aggravated rape in violation of his
constitutional rights and asked the court to reverse his conviction and sentence
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-30715
and award him $100,000 in damages. The district court dismissed his complaint
as frivolous and for failure to state a claim, and Elzy appeals.
We review de novo a district court’s dismissal of a complaint as frivolous
and for failure to state a claim under both 28 U.S.C. § 1915A and § 1915(e)(2).
Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009); Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005). We will uphold a dismissal for failure to state a claim
if, “taking the plaintiff’s allegations as true, it appears that no relief could be
granted based on the plaintiff’s alleged facts.” Samford, 562 F.3d at 678
(internal quotation marks and citation omitted). A claim is frivolous if it lacks
“any arguable basis in law or fact.” Id. (internal quotation marks and citation
omitted).
The magistrate judge and district court were correct that the State is
immune from a civil rights suit for damages and thus any § 1983 claims against
the State of Louisiana necessarily fail. See McCarthy ex rel. Travis v. Hawkins,
381 F.3d 407, 412 (5th Cir. 2004). They were also correct that any claim for
damages is also barred by Heck v. Humphrey, 512 U.S. 477 (1994), because
judgment in Elzy’s favor “would necessarily imply the invalidity of his conviction
or sentence,” which he did not allege had been previously overturned or
invalidated. 512 U.S. at 487. Though Elzy appears to argue that he may seek
the invalidation of his conviction through a § 1983 action, the sole vehicle for
obtaining this relief in federal court is by petitioning for a writ of habeas corpus.
See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005); Preiser v. Rodriguez, 411 U.S.
475, 499-500 (1973).
In his objection to the magistrate judge’s report, Elzy expressed a desire
to add other defendants, including the trial court and prosecutors, which could
be construed as an attempt to amend the complaint. See United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996). Generally a district court should not
dismiss a pro se complaint without giving the plaintiff an opportunity to amend,
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Nonetheless, dismissal was
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No. 11-30715
warranted because bringing the same claims against these or any other potential
defendants would be “indisputably meritless.” Id. at 9 n.5 (internal quotation
marks and citations omitted). Attempts to sue state employees in their official
capacities for monetary damages would be barred by sovereign immunity. See
McCarthy ex rel. Travis, 381 F.3d at 412. Prosecutors and judicial officers would
be entitled to absolute immunity for acts taken in the performance of their
prosecutorial or judicial functions. See Boyd v. Biggers, 31 F.3d 279, 284-85 (5th
Cir. 1994). More broadly, Elzy could not overcome the Heck bar because any
award of damages in his favor would necessitate a ruling that his conviction was
invalid, see Heck, 512 U.S. at 486-87, and he may not seek the invalidation of his
conviction through a § 1983 claim, no matter what defendant he names, see
Preiser, 411 U.S. at 499-500.
To the extent that Elzy attempts to raise on appeal new claims related to
a subsequent arrest and conviction, we will not consider them because Elzy
failed to raise them in the district court. See Stewart Glass & Mirror, Inc. v.
U.S. Auto Glass Discount Cntrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).
The judgment of the district court is affirmed. Elzy’s request to submit
supplemental briefing is granted. The district court’s dismissal of Elzy’s
complaint counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Elzy is warned that if he
accumulates three strikes, he will not be allowed to bring a civil action or appeal
a judgment in forma pauperis unless he is under imminent danger of serious
physical injury. See § 1915(g).
AFFIRMED; PERMISSION TO SUBMIT SUPPLEMENTAL BRIEFING
GRANTED; SANCTION WARNING ISSUED.
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