McAnally v. McCollough ( 2000 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 00-60142
    Conference Calendar
    RAY MCANALLY,
    Plaintiff-Appellant,
    versus
    JOHN MCCULLOUGH,
    Defendant-Appellee.
    - - - - - - - - - -
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 2:99-CV-240-P-B
    - - - - - - - - - -
    December 13, 2000
    Before DAVIS, STEWART, and PARKER, Circuit Judges.
    PER CURIAM:*
    Ray McAnally, Mississippi prisoner # 07790, appeals the
    district court’s dismissal of his 
    42 U.S.C. § 1983
     complaint.
    The district court dismissed the complaint pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(ii) for failure to state a claim.    On appeal,
    McAnally reurges the merits of his complaint, but does not
    challenge the district court’s conclusion that McCullough was a
    private citizen not acting under color of state law.    See Barnes
    v. Lehman, 
    861 F.2d 1383
    , 1385 (5th Cir. 1988)(to state a § 1983
    *
    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    that this opinion should not be published and is not precedent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. 00-60142
    -2-
    claim, plaintiff must allege that defendant was acting under
    color of state law).
    This court reviews de novo a district court’s dismissal of a
    prisoner’s civil rights complaint under 
    28 U.S.C. § 1915
    (e)(2)(B)(ii) for failure to state a claim.    Berry v.
    Brady, 
    192 F.3d 504
    , 507 (5th Cir. 1999).    The same de novo
    standard is employed for reviewing a complaint dismissed pursuant
    to Fed. R. Civ. P. 12(b)(6).    Black v. Warren, 
    134 F.3d 732
    , 734
    (5th Cir. 1998).    The district court erred when it dismissed
    McAnally’s complaint sua sponte, because it did so without giving
    him the opportunity to amend his complaint.    Jones, 188 F.3d at
    326.    This error is harmless, however, because even if McAnally
    had amended his complaint to plead state action, his complaint is
    an indirect attack on the validity of his conviction, and that
    attack is barred by Heck v. Humphrey, 
    512 U.S. 477
    , 486-87
    (1994).    See Jacquez v. Procunier, 
    801 F.2d 789
    , 792 (5th Cir.
    1986)(if it is obvious that no amendment to the complaint can
    save the prisoner’s pro se lawsuit, no reversible error in not
    giving opportunity to do so).    Accordingly, the district court’s
    dismissal is AFFIRMED.    See Bickford v. Int’l Speedway Corp., 
    654 F.2d 1028
    , 1031 (5th Cir. 1981)(this court may affirm on grounds
    different from those employed by the district court).