Dannon Sellers v. Charles Plattsmier , 637 F. App'x 111 ( 2015 )

Case: 15-30520 Document: 00513293913 Page: 1 Date Filed: 12/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-30520
Fifth Circuit
FILED
December 3, 2015
Lyle W. Cayce
Clerk
DANNON KEITH SELLERS,
Plaintiff–Appellant,
versus
CHARLES B. PLATTSMIER; ERIC R. MCCLENDON,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:14-CV-3453
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Dannon Sellers, Louisiana prisoner # 556277, moves for leave to proceed
in forma pauperis (“IFP”) in this appeal of the dismissal of his 42 U.S.C. § 1983
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30520
complaint. The motion is a challenge to the district court’s certification that
the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).
In his complaint, Sellers maintained that the defendants, employees of
the Louisiana Attorney Disciplinary Board (“LADB”), had failed to pursue dis-
ciplinary action against the prosecutors of his criminal case despite that the
charging bill of information was invalid. The district court dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B), concluding that to the extent Sellers was seeking
dismissal of the charges, the claims sounded in habeas corpus; that any request
for monetary damages based on his purportedly illegal detention was barred
by Heck v. Humphrey, 512 U.S. 477 (1994); and that the defendants were
immune because they were acting in a prosecutorial capacity. Sellers contends
that the defendants were required to act on his behalf because the state prose-
cutors had violated his constitutional and statutory rights and that the district
court had failed to take into account his request for a preliminary injunction.
In the district court, Sellers contended that he was not challenging the
validity of his conviction or sentence but was instead disputing the processes
followed by the prosecution in seeking conviction. But Sellers’s assertion that
the prosecutors should have been sanctioned for proceeding under an invalid
charging instrument does call into question the validity of the conviction, and
his request that the LADB order dismissal of the bill of information appears to
be an implicit request for release from imprisonment. A state prisoner chal-
lenging the fact or duration of his confinement who seeks an immediate or
accelerated release from confinement must seek habeas relief under 28 U.S.C.
§ 2254. See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). Likewise, a prisoner
alleging that he is unconstitutionally imprisoned may not recover monetary
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No. 15-30520
damages until he has shown that the conviction or sentence has been previ-
ously invalidated. Heck, 512 U.S. at 486–87.
The district court properly concluded that the LADB employees were
absolutely immune from suit because their decision not to pursue disciplinary
charges against the attorneys was prosecutorial in nature. See Imbler v. Pacht-
man, 424 U.S. 409, 431–31 (1976); Green v. State Bar of Tex., 27 F.3d 1083,
1088 (5th Cir. 1994). Though Sellers is correct that such immunity does not
bar requests for equitable relief, see Chrissy F. by Medley v. Miss. Dep’t of Pub.
Welfare, 925 F.2d 844, 849 (5th Cir. 1991), he did not request any specific relief
in his request for a preliminary injunction. In his civil rights complaint, he
asked that the defendants be compelled to order the prosecutors to dismiss the
bill of information and that they pull the attorneys’ law licenses. Even if we
construe those demands as the requested relief in the request for preliminary
injunction, Sellers has not shown that he is likely to succeed on the merits of
his claims relating to the dismissal of the charging instrument or that he will
suffer any injury if the prosecutors do not lose their law licenses. See Byrum
v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). Thus, the district court did not
abuse its discretion in its implicit denial of an injunction. See Women’s Med.
Ctr. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001); Norman v. Apache Corp.,
19 F.3d 1017, 1021 (5th Cir. 1994).
Sellers has not shown that the district court erred or abused its discre-
tion by dismissing. See Black v. Warren, 134 F.3d 732, 733–34 (5th Cir. 1998);
Walter v. Torres, 917 F.2d 1379, 1383 (5th Cir. 1990). Therefore, he has not
established that he will present a nonfrivolous issue on appeal. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for leave to
proceed IFP is denied, and the appeal is dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
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The district court’s dismissal of Sellers’s complaint as frivolous and for
suing an immune defendant and this court’s dismissal of this appeal as frivo-
lous count as two strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). In addition, Sellers has accumulated another
strike. See Sellers v. Haney, No. 6:15-CV-270 (W.D. La. June 25, 2015); see also
Coleman v. Tollefson, 135 S. Ct. 1759, 1763–64 (2015). Sellers is therefore
barred from proceeding IFP in any civil action or appeal filed while he is incar-
cerated or detained in any facility unless he is under imminent danger of seri-
ous physical injury. See § 1915(g).
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