Robinson v. Stewart ( 2000 )

No. 99-60490
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60490
Conference Calendar
DAVID A. ROBINSON,
Plaintiff-Appellant,
versus
BEAU STEWART; CONO A. CARANNA, II,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:99-CV-35-GR
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February 16, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
David A. Robinson, Mississippi inmate #16036, appeals the
dismissal of his civil rights complaint for failure to state a
claim and for seeking monetary relief from defendants immune from
suit. See 28 U.S.C. § 1915(e)(2)(B)(ii), (iii). IT IS ORDERED
that Robinson’s request for the appointment of counsel is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
Robinson asserts that that his claim, if successful, would
not invalidate his conviction, and therefore, his complaint
should proceed. His assertion is without merit. A due process
*
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that this opinion should not be published and is not precedent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. 99-60490
-2-
challenge to the prosecutor’s comments during closing argument,
if successful, would invalidate Robinson’s conviction. See
Ortega v. McCotter, 808 F.2d 406, 408-11 (5th Cir. 1987). The
district court did not err in dismissing the complaint. See Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994).
Robinson’s argument concerning prosecutorial immunity is
also without merit. Robinson’s allegations of improper comments
by the prosecutor would be defeated by prosecutorial immunity.
See Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994).
This appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). The appeal is DISMISSED as frivolous. See 5TH CIR.
R. 42.2.
This dismissal is Robinson’s third strike pursuant to 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996); see also Robinson v. Stewart, No. 1:99cv35GR
(S.D. Miss. July 9, 1999); Robinson v. Eaves, No. 98-cv-168 (S.D.
Miss. June 30, 1999). Pursuant to § 1915(g), Robinson is BARRED
from proceeding 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.
APPEAL DISMISSED. MOTION DENIED.