Walton v. Parish of Lasalle , 258 F. App'x 633 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 11, 2007
No. 06-31257
Conference Calendar Charles R. Fulbruge III
Clerk
RONALD WALTON
Plaintiff-Appellant
v.
PARISH OF LASALLE; JOSEPH WILSON; JOSEPH KUTCH; J P MAUFFREY;
J REED WALTERS
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:06-CV-1148
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Ronald Walton, Louisiana prisoner # 115318, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action as frivolous and for failure to state a
claim. Walton sued the Parish of LaSalle, the head of the Indigent Defender’s
Board in LaSalle, the attorney appointed by the Indigent Defender’s Board to
represent him, the trial judge, and the assistant district attorney who prosecuted
*
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should not be published and is not precedent except under the limited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. 06-31257
him. He argues that the district court erred in holding that the defendants were
immune from suit or did not act under color of state law.
Walton argues that his counsel conspired with the prosecutor, the trial
judge, and the head of the Indigent Defender’s Board to secure his conviction and
continued imprisonment. Because he raises this conspiracy allegation for the
first time on appeal, we do not consider it. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999).
Although Walton contends that the trial judge acted without jurisdiction
and that the prosecutor was entitled only to qualified immunity, he has not
shown that the district court erred in holding that these parties were entitled to
immunity from suit. See Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993);
Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). Similarly, because the
allegations made by Walton against his defense counsel related to his counsel’s
performance in representing him, he has not shown that the district court erred
in holding that his counsel did not act under color of state law. See Polk County
v. Dodson, 454 U.S. 312, 325 (1981). The head of the Indigent Defender’s Board
may not be held liable under § 1983 for appointing counsel to represent Walton.
See id. at 325-27 (recognizing § 1983 will not support liability under a theory of
respondeat superior).
Walton contends that the district court also erred in applying Heck v.
Humphrey, 512 U.S. 477 (1994), since he was not challenging the fact or
duration of his confinement, and he sought declaratory and injunctive relief.
Because a declaration that Walton’s conviction was secured through a violation
of due process would call into question the validity of his conviction, the district
court’s application of Heck was proper. See Heck, 512 U.S. at 486-87; Clarke v.
Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998) (en banc).
Walton has abandoned his arguments against LaSalle Parish by failing to
brief them on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
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No. 06-31257
Walton’s appeal is without arguable merit and is therefore dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.
R. 42.2. The dismissal of this appeal as frivolous counts as a strike under 28
U.S.C. § 1915(g), as does the district court’s dismissal of Walton’s complaint. See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Walton is
cautioned that if he accumulates three strikes under § 1915(g), he will not be
permitted to proceed in forma pauperis in any civil action or appeal filed while
he is incarcerated or detained in any facility unless he is under imminent danger
of serious physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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