Robinson v. USA , 185 F. App'x 347 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-30947
Summary Calendar
EARL A ROBINSON
Plaintiff - Appellant
v.
UNITED STATES OF AMERICA, FEDERAL BUREAU OF INVESTIGATION,
LEON HUSS, DANIEL J WEHR, FRED P HARPER, JR, CITY OF MAMOU,
PHYLLIS SOILEAU, CHARLES R ISRAEL, TODD ORTIS, NICHOLAS SOILEAU,
ET AL
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:04-CV-2098
--------------------
Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Earl A. Robinson, Louisiana prisoner # 390863, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 suit as
frivolous and for failure to state a claim upon which relief may
be granted pursuant to 28 U.S.C. § 1915(e)(2)(B). Robinson has
filed two appellate briefs, the second of which includes a letter
asking that the court consider that brief on appeal. We construe
this as a motion to substitute briefs, which is granted.
*
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this opinion should not be published and is not precedent except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. 05-30947
-2-
Robinson argues that his complaint should not have been
dismissed under Heck v. Humphrey, 512 U.S. 477 (1994). He has
not shown, however, that a majority of his claims would not
necessarily imply the invalidity of his conviction. Therefore,
the district court did not err. See Heck, 512 U.S. at 486-87;
Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). The district
court also properly determined that the numerous state
prosecutors and the state court judge named as defendants were
entitled to absolute immunity. See Boyd v. Biggers, 31 F.3d 279,
284-85 (5th Cir. 1994).
Robinson also argues that the district court erroneously
dismissed certain private citizens because they were not state
actors when these parties conspired with police to fabricate
charges and evidence. In addition to calling into question the
validity of his conviction, Robinson’s conspiracy claim is
conclusional, and the district court did not err. See Heck, 512
U.S. at 486-87; Mills v. Criminal Dist. Court No. 3, 837 F.2d
677, 679 (5th Cir. 1988).
Robinson contends that numerous federal and state entities
failed to investigate his complaints that other defendants had
violated his constitutional rights. The alleged failure to
investigate complaints and to take action in response to them
does not provide a basis for a civil rights suit. See Oliver v.
Collins, 904 F.2d 278, 281 (5th Cir. 1990).
No. 05-30947
-3-
Robinson’s appeal is without arguable merit and is
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is dismissed. See
5TH CIR. R. 42.2. Robinson is cautioned that the dismissal of
this appeal as frivolous, and the district court’s dismissal of
his complaint as frivolous and for failure to state a claim,
count as strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). If he accumulates
three strikes under § 1915(g), he will not be able to proceed in
forma pauperis (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 § 1915(g).
MOTION TO SUBSTITUTE BRIEFS GRANTED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.