Carey v. Black

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20649
Summary Calendar
WESLEY CAREY, JR.,
Plaintiff-Appellant,
versus
NORMAN W. BLACK, Chief Judge; DAVID G. HALPERN,
Assistant Attorney General; MINERVA CASTRO,
Deputy Clerk; PATRICK E. HIGGINBOTHAM, U.S.
Circuit Judge; JOHN M. DUHÉ, JR., U.S. Circuit
Judge; DWAINE M. MASSEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-679
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April 4, 1997
Before KING, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Texas prisoner Wesley Carey, Jr., #601696, seeks leave to
proceed in forma pauperis (IFP) to appeal the dismissal of his
civil rights action as frivolous. Carey’s motion for leave to
proceed IFP is GRANTED.
*
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that this opinion should not be published and is not precedent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.
No. 96-20649
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Because no further briefing is needed to determine Carey’s
appeal, we proceed to consider the merits of the appeal.
Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).
Carey contends that the district court erred by failing to hold a
hearing pursuant to Spears v. McCotter, 766 F.2d 179, 182 (5th
Cir. 1985), on his complaint; that the judicial defendants are
not immune from his claims for damages and injunctive relief; and
that his conspiracy contention against the defendants is
meritorious.
The judicial defendants in Carey’s case are absolutely
immune from damages for the actions forming the basis of Carey’s
complaint. Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995).
The judicial defendants are not immune from injunctive relief.
Holloway v. Walker, 765 F.2d 517, 525 (5th Cir.), cert. denied,
474 U.S. 1037 (1985). The conspiracy allegations in Carey’s
complaint are conclusional and do not indicate any constitutional
violations independent from his conspiracy claim. The district
court did not abuse its discretion by dismissing Carey’s
complaint as frivolous. Moreover, Carey’s appeal is frivolous
and therefore is dismissed as frivolous.
After payment of an initial partial filing fee of $2.53,
Carey shall make monthly payments of twenty percent of the
preceding month’s income credited to his account. See 28 U.S.C.
§ 1915(b). The agency having custody of Carey is directed to
forward payments from his prisoner account to the clerk of the
No. 96-20649
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district court each time the amount in his account exceeds $10
until the filing fee is paid. Id.
This appeal is the third action or appeal brought by Carey
while in prison that has been dismissed as frivolous. Carey may
pursue no further civil actions or appeals in forma pauperis
while in prison unless he “is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).
APPEAL DISMISSED. 5TH CIR. R. 42.2. SANCTIONS IMPOSED.