Hodges v. Smith ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20444
Conference Calendar
EDWARD S. HODGES, III,
Plaintiff-Appellant,
versus
BRADLEY SMITH; BILL R. TURNER; JIM W.
JAMES; JOHN M. DELANEY; MICHAEL R.
HOESCHOLER; BRAZOS COUNTY COMM’RS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA-H-95-5020
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August 21, 1996
Before KING, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:*
Edward S. Hodges, III (#313950), appeals the dismissal of
his civil rights action as frivolous. “[C]ivil tort actions are
not appropriate vehicles for challenging the validity of
outstanding criminal judgments.” See Heck v. Humphrey, 114
S. Ct. 2364, 2372 (1994). Hodges’s claims call into question the
validity of his conviction and sentence and may not be considered
in a § 1983 action under the rule in Heck because Hodges has not
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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demonstrated that his conviction and sentence have been
invalidated.
Even though this complaint is subject to dismissal under
Heck, “it remains appropriate for district courts to consider the
possible applicability of the doctrine of absolute immunity.”
Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). Defendants
Jim James, Bill Turner, Bradley Smith, and John Delaney are
entitled to absolute immunity from suit for damages in § 1983
actions arising out of acts performed in the exercise of their
prosecutorial and judicial functions. Boyd, 31 F.3d at 284(prosecutorial immunity); Graves v. Hampton, 1 F.3d 315, 317 (5th
Cir. 1993) (judicial immunity).
Finally, we note that Hodges’s claim against his appointed
trial counsel, Michael R. Hoescholer, does not involve state
action and is not cognizable under § 1983. See Polk County v.
Dodson, 454 U.S. 312, 321-22, 325 (1981).
The district court did not abuse its discretion in
dismissing the complaint as frivolous. Booker v. Koonce, 2 F.3d
114, 115 (5th Cir. 1993). The appeal is without arguable merit
and thus frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983). Because the appeal is frivolous, it is DISMISSED.
5th Cir. R. 42.2.
We caution Hodges that any additional frivolous appeals
filed by him will invite the imposition of sanctions. To avoid
sanctions, Hodges is further cautioned to review all pending
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appeals to ensure that they do not raise arguments that are
frivolous.
APPEAL DISMISSED. SANCTION WARNING ISSUED.