Brattain v. Spurger , 154 F. App'x 411 ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-11220
(Summary Calendar)
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ROBERT EDWARD BRATTAIN,
Plaintiff - Appellant,
versus
JIM SPURGER, Detective; PAMELA BENSON, Judge;
CITY OF BALCH SPRINGS, TEXAS; CITY OF
HUTCHINS, TEXAS,
Defendants - Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(3:97-CV-1275-X)
April 2, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Robert Edward Brattain, Texas prisoner #603113, appeals the
dismissal of his civil rights complaint as frivolous pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(iii), 1915A(b)(2). Brattain argues that
*
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that this opinion should not be published and is not precedent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.
Judge Benson is not protected by judicial immunity because the
warrant was an evidentiary search warrant issued pursuant to TEX.
CODE CRIM. P. art. 18.02(10), and Judge Benson was not authorized to
issue such a warrant. Contrary to Brattain’s contentions, however,
Judge Benson was authorized to issue the warrant, which was issued
to search for a handgun used to commit a crime and therefore was
not an evidentiary warrant. See TEX. CODE CRIM. P. art. 18.02(9)
(authorizing issuance of search warrant for “implements or
instruments used in the commission of a crime”). Thus, Judge
Benson’s issuance of the warrant was therefore protected by
judicial immunity. See Mays v. Sudderth, 97 F.3d 107, 111 (5th
Cir. 1996) (“A judge will not be deprived of immunity because the
action he took was in error, was done maliciously, or was in excess
of his authority; rather, he will be subject to liability only when
he has acted in the ‘clear absence of all jurisdiction.’”) (quoting
Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331
(1978)); Ammons v. Baldwin, 705 F.2d 1445, 1447-48 (5th Cir. 1983)
(holding that judge was immune for issuing arrest warrant). We
accordingly AFFIRM the dismissal of Brattain’s claims against Judge
Benson.
With respect to the remaining defendants, Brattain argues that
the district court erred in dismissing his claims in light of Heck
v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). Construing
Brattain’s complaint as seeking monetary damages “for his arrest
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and prosecution for the misdemeanor offense, and the subsequent
revocation of his parole” the district court held that his claim
called into question the legality of his confinement and were
therefore barred by Heck. Brattain contends that the district
court misunderstood his complaint, which he claims seeks damages
for the unconstitutional issuance and execution of the search and
arrest warrant that resulted in his arrest. Although attacking the
validity of a parole revocation proceeding must satisfy Heck, see
Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995), “a claim of
unlawful arrest, standing alone, does not necessarily implicate the
validity of a criminal prosecution following the arrest.” See
Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995); Montoya v.
Scott, 65 F.3d 405, 421 (5th Cir. 1995), cert. denied, 116 S. Ct.
1417, 134 L. Ed. 2d 542 (1996) (noting the “established rule that
illegal arrest or detention does not void a subsequent
conviction”). Liberally construed, Brattain’s pro se complaint and
answers to the magistrate’s questionnaire challenge the legality of
his arrest, and the record does not clearly reflect whether this
challenge, if successful, would implicate the validity of his
conviction or parole revocation. We accordingly VACATE the portion
of the district court’s dismissal invoking Heck and REMAND for
further proceedings. Brattain’s motion for the appointment of
counsel on appeal is DENIED.
AFFIRMED IN PART; VACATED AND REMANDED IN PART; MOTION DENIED.
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