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Hobbs v. United States , 73 F. App'x 54 ( 2003 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                 August 19, 2003
Charles R. Fulbruge III
Clerk
No. 03-20155
Conference Calendar
DONALD F. HOBBS,
Plaintiff-Appellant,
versus
UNITED STATES, (Federal Torts Claims Act);
KENNETH M. HOYT, U.S. Judge,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-4524
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Donald F. Hobbs (“Hobbs”), Texas state prisoner #691219,
proceeding pro se and in forma pauperis (“IFP”), appeals the
sua sponte dismissal of his
    42 U.S.C. § 1983
     and Federal Torts
Claims Act complaint for failure to state a claim upon which
relief could be granted pursuant to 28 U.S.C. § 1915A(b)(1).
Hobbs argues that Judge Kenneth M. Hoyt was not entitled to
absolute immunity because in a lawsuit, not related to the
*
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that this opinion should not be published and is not precedent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. 03-20155
-2-
instant lawsuit, Judge Hoyt acted without jurisdiction.    Hobbs
also contends that the sua sponte dismissal of his complaint was
erroneous because he was not given an opportunity to develop the
factual basis of his allegations.
We review dismissals under 28 U.S.C. § 1915A de novo.
Ruiz v. United States,
    160 F.3d 273
    , 275 (5th Cir. 1998).
Judges enjoy absolute judicial immunity for judicial acts
performed in judicial proceedings.   Mays v. Sudderth,
    97 F.3d 107
    , 110-11 (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.’”
    Id. at 111
     (quoting
Stump v. Sparkman,
    435 U.S. 349
    , 356-57 (1978) (further citation
omitted)).   Judge Hoyt did not lack jurisdiction in Hobbs’s
previous case because Hobbs’s prior interlocutory appeal
challenging the venue of his hearing was not appealable.        See
Askanase v. Livingwell, Inc.,
    981 F.2d 807
    , 809-10 (5th Cir.
1993).   Consequently, Judge Hoyt and the United States of America
are entitled to absolute immunity.   See Resolution Trust Corp.
v. United States Fidelity & Guar. Co.,
    27 F.3d 122
    , 126 (5th Cir.
1994);
    28 U.S.C. § 2674
    .   Hobbs’s contention that the district
court’s sua sponte dismissal of his complaint was erroneous lacks
merit because Hobbs has failed to identify additional facts that
could have been pleaded to support his complaint, and because he
No. 03-20155
-3-
set forth his “best case” in the district court.   See Bazrowx
v. Scott,
    136 F.3d 1053
    , 1054 (5th Cir. 1998).
Hobbs’s appeal is without arguable merit and is dismissed as
frivolous.   See 5TH CIR. R. 42.2; Howard v. King,
    707 F.2d 215
    ,
219-20 (5th Cir. 1983).   The dismissal of the appeal as frivolous
and the district court’s dismissal of Hobbs’s
    42 U.S.C. § 1983
    complaint for failure to state a claim each count as a “strike”
under the three-strikes provision of
    28 U.S.C. § 1915
    (g).
See Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996).
Hobbs is CAUTIONED 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 under
imminent danger of serious physical injury.   See
    28 U.S.C. § 1915
    (g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.