Rogers v. Dept of Corrections ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31390
Conference Calendar
JOSEPH R. ROGERS,
Plaintiff-Appellant,
versus
DEPARTMENT OF CORRECTIONS; FRED Y. CLARK; BOARD OF PAROLE;
PEGGY LANDRY; VEDEGRA SCOTT; R. JONES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CV-726-D
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June 13, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Joseph R. Rogers, Louisiana prisoner #105914, appeals from
the district court’s dismissal of his civil-rights lawsuit filed
pursuant to 42 U.S.C. § 1983. The district court dismissed his
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii), and
(iii), because it held that his complaint lacked an arguable
basis in law or fact, failed to state a claim upon which relief
could be granted, and sought damages against defendants who were
absolutely immune.
*
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that this opinion should not be published and is not precedent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. 00-31390
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Rogers alleged that his constitutional rights were violated
due to the revocation of his parole and the refusals of his
requests for a revocation rehearing. The Louisiana Department of
Public Safety and Corrections is absolutely immune from suit due
to the Eleventh Amendment. See Champagne v. Jefferson Parish
Sheriff’s Office, 188 F.3d 312, 313 (5th Cir. 1999). Members of
the Louisiana Board of Parole are absolutely immune from suit
when performing adjudicative functions. See Walter v. Torres,
917 F.2d 1379, 1380 (5th Cir. 1990). Because all of the
defendants named in Rogers’ complaint are absolutely immune from
suit, his complaint was properly dismissed under 28 U.S.C.
§ 1915(e)(2)(B)(iii).
Furthermore, his claim challenging the revocation of his
parole is barred under Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). This claim was therefore properly dismissed as frivolous
and for failure to state a claim on which relief may be granted
under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
His appeal is without arguable merit and is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a “strike”
for purposes of 28 U.S.C. § 1915(g), as does the district court’s
dismissal. See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). We warn Rogers that if he accumulates three
“strikes” under 28 U.S.C. § 1915(g), he will not be able to
proceed in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is
No. 00-31390
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under imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED; STRIKE WARNING ISSUED.