Phillips v. Cowie

Case: 22-10767 Document: 00516677484 Page: 1 Date Filed: 03/15/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10767
FILED
March 15, 2023
Donnie Earl Phillips, Jr., Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Robert Ray Cowie; Scott Wisch; Tom Benson; Rob
Hayden; Mollee Westfall; Patrick Curran; Alejandra
Estrada; Mamie Bush Johnson; J. Eric Nikols; Scotty
Jones,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-1362
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Donnie Earl Phillips, Jr., Texas prisoner #0518336, asserted various
claims under 42 U.S.C. § 1983 relating to his conviction and sentence for
driving while intoxicated. The district court granted Phillips’s motion to
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10767 Document: 00516677484 Page: 2 Date Filed: 03/15/2023
No. 22-10767
proceed in forma pauperis and allowed the filing of two amended complaints.
After Phillips filed a second amended complaint, the district court dismissed
several of his claims with prejudice and entered a partial final judgment pur-
suant to Rule 54(b) of the Federal Rules of Civil Procedure. Phillips v. Cowie,
No. 4:21-CV-1362, ECF 23 (July 15, 2022) (opinion and order); id. ECF 24
(partial final judgment). The partial dismissal addressed the claims Phillips
asserted against his private defense attorneys, several Tarrant County judges,
and various bail bondsmen. The district court explained that, on the facts
alleged, the defense attorneys and bail bondsmen are not state actors for pur-
poses of § 1983, and that the state judges were entitled to absolute immunity.
Phillips appealed the partial final judgment, and the district court granted his
motion to proceed in forma pauperis on appeal.
We have jurisdiction to consider appeals from partial final judgments
where the district court determines that there is no just reason to delay dis-
missal. 28 U.S.C. § 1291; see Jones v. Singing River Health Servs. Found., 865
F.3d 285, 292 n.3 (5th Cir. 2017). But where, as here, the appellant proceeds
in forma pauperis, we must dismiss the appeal if the issues presented are friv-
olous. 28 U.S.C. § 1915(e)(2)(B)(i). Issues are frivolous if they are not “ar-
guable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Phillips’s issues are not arguable on their merits. First, private attor-
neys are not state actors except in the exceptional case that they conspire with
an actual state official. Hudson v. Hughes, 98 F.3d 868, 873 (5th Cir. 1996);
Mills v. Crim. Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir. 1988); see, e.g.,
Uresti v. Reyes, 506 F. Appx. 328, 329 (5th Cir. 2011). The same is generally
true of bail bondsmen. Tebo v. Tebo, 550 F.3d 492, 496 (5th Cir. 2008); Landy
v. A-Able Bonding, Inc., 75 F.3d 200, 203–05 (5th Cir. 1996); see, e.g., Cabal-
lero v. Aamco Bail Bonding Co., No. 97-20617, 1998 WL 414307, at *2 (5th Cir.
July 16, 1998) (asking whether bondsman “enlisted the assistance of law en-
forcement officers” or “displayed an arrest warrant”) (citation and internal
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No. 22-10767
quotation marks omitted). Accepting the facts alleged in Phillips’s second
amended complaint as true, they do not show that that the defense attorneys
or the bail bondsmen were acting under color of state law. Second, a judge is
entitled to absolute immunity from acts taken in his or her judicial capacity.
See, e.g., Davis v. Tarrant County, 565 F.3d 214, 222 (5th Cir. 2009) (citing
Stump v. Sparkman, 435 U.S. 349, 362 (1978)). Phillips’s complaint alleges
that one judge wrongfully entered his conviction and that another committed
a clerical on the judgment. The judges are entitled to absolute immunity be-
cause those actions were plainly taken in the judges’ judicial capacity.
The issues raised in Phillips’s appeal are not arguable on the merits.
We therefore must DISMISS the appeal. 28 U.S.C. § 1291(e)(2)(B)(i).
The petition for a writ of mandamus and motion to file a supplemental brief
are DENIED AS MOOT.
3