McCoy v. Jones ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-31221
    Conference Calendar
    BILLY M. McCOY,
    Plaintiff-Appellant,
    versus
    JERRY L. JONES;
    DANIEL MILTON MOORE, III;
    JIMMY N. DIMOS; JERRY FINLEY,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 01-CV-770
    --------------------
    April 10, 2002
    Before SMITH, DeMOSS, and PARKER, Circuit Judges.
    PER CURIAM:*
    Billy M. McCoy, Louisiana prisoner # 75868, proceeding pro
    se and in forma pauperis (IFP), appeals the dismissal as
    frivolous of his 42 U.S.C. § 1983 complaint against District
    Attorney Jerry L. Jones, Judge Daniel Milton Moore, III, and his
    defense attorneys, Jimmy N. Dimos and Jerry Finley.    Because
    McCoy does not allege that any defendant was acting outside the
    scope of his duties as prosecuting attorney, judge, or defense
    attorney, each of these defendants is immune from suit for money
    *
    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    that this opinion should not be published and is not precedent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. 01-31221
    -2-
    damages.    See Polk County v. Dodson, 
    454 U.S. 312
    , 325 (1981);
    see also Boyd v. Biggers, 
    31 F.3d 279
    , 285 (5th Cir. 1994).
    Although McCoy amended his complaint to seek injunctive and
    declaratory relief, FED. R. CIV. P. 15(a), those claims are
    meritless as well.    All of McCoy’s claims are challenges to the
    fact or duration of his custody, and his sole relief is a writ of
    habeas corpus.     See Preiser v. Rodriguez, 
    411 U.S. 475
    , 499
    (1973).    This appeal is without arguable merit and, thus,
    frivolous.     See Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir.
    1983).    Because the appeal is frivolous, it is DISMISSED, and
    McCoy’s request for the appointment of counsel is DENIED.       5TH
    CIR. R. 42.2; Mayfield v. Collins, 
    918 F.2d 560
    (5th Cir. 1990).
    The three-strikes provision of 28 U.S.C. § 1915(g)
    “prohibits a prisoner from proceeding IFP if he has had three
    actions or appeals dismissed for frivolousness, maliciousness, or
    failure to state a claim.”     Carson v. Johnson, 
    112 F.3d 818
    , 819
    (5th Cir. 1997).    McCoy has previously had at least one strike
    against him.     McCoy v. Stalder, No. 97-48-A-1 (M.D. La. Mar. 10,
    1997).    McCoy has acquired another two strikes as a result of
    this frivolous complaint and appeal.        See Adepegba v. Hammons,
    
    103 F.3d 383
    , 386-88 (5th Cir. 1996).       He now has at least three
    strikes.    Accordingly, McCoy may no longer proceed IFP 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 28 U.S.C. § 1915(g).
    APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; REQUEST
    FOR COUNSEL DENIED.