Lawson v. Moore ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60232
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JAMES BERNARD LAWSON,
Plaintiff-Appellant,
versus
MICHAEL MOORE; STATE OF MISSISSIPPI;
CYNTHIA SPEETJENS; WILLIAM F. COLEMAN,
Circuit Judge; THOMAS FORTNER, Attorney;
CITY OF CLINTON, MISSISSIPPI,
Police Department,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:94-CV-713
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July 18, 1995
Before JOLLY, DAVIS and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
James B. Lawson's motion for leave to proceed in forma
pauperis (IFP) is hereby DENIED.
A reviewing court will disturb a district court's dismissal of
a pauper's complaint as frivolous only on finding an abuse of
discretion. A district court may dismiss such a complaint as
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-60232
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frivolous "``where it lacks an arguable basis either in law or in
fact.'" Denton v. Hernandez, 504 U.S. 25, 31, 33 (1992)(quoting
Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
Lawson's claims that he was prosecuted maliciously implicate
the State, Attorney General Moore, Assistant District Attorney
Speetjens, and perhaps Judge Coleman. First, judges are absolutely
immune from civil liability for their judicial activities unless
they act in the "``clear absence of all jurisdiction.'" Stump v.
Sparkman, 435 U.S. 349, 356-57 (1978)(citations omitted). Judge
Coleman therefore was immune from Lawson's damages action.
Second, prosecutors are absolutely immune from damages actions
under 42 U.S.C. § 1983 for the performance of prosecutorial
functions. Slavin v. Curry, 574 F.2d 1256, 1264 (5th Cir.),
modified in part, 583 F.2d 779 (5th Cir. 1978). Such functions
include the initiation of prosecution and presentation of evidence,
Imbler v. Pachtman, 424 U.S. 409, 431 (1976), and the collection,
examination, and interpretation of documents. Cook v. Houston
Post, 616 F.2d 791, 793 (5th Cir. 1980). Moore and Speetjens
therefore were immune from Lawson's damages action.
Third, the Eleventh Amendment protects states from damages
actions. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).
Mississippi has not waived its sovereign immunity. MISS. CODE ANN.
§ 11-46-5(4)(supp. 1994). The State is immune from Lawson's
damages action.
Lawson contends that the defendants pressed forward with his
prosecution despite knowing of various constitutional violations by
police officers, but he does not allege how the City of Clinton was
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involved. He has waived any contentions against the City of
Clinton, which could have been liable only for the police
misconduct Lawson alleges. By failing to brief his possible
appellate issues against the City, Lawson has abandoned those
issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
Lawson contends that the district court erred by dismissing
his claims pursuant to Heck v. Humphrey, 114 S. Ct. 2364 (1994).
The district court applied Heck only to Lawson's claims against
Attorney Fortner. Lawson does not repeat his conspiracy contention
implicating Fortner. Fortner is not a state actor and could not
have violated § 1983 absent some involvement with the other
defendants. Polk County v. Dodson, 454 U.S. 312, 325 (1981).
Because we may dispose of Lawson's claim against Fortner on the
basis that Fortner is not a state actor, we need not reach Lawson's
Heck contention.
Finally, Lawson is warned that he will be sanctioned if he
files frivolous appeals in the future. See Smith v. McCleod, 946
F.2d 417, 418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68,
69 (5th Cir. 1991).
APPEAL DISMISSED.