Dade v. Entz , 83 F. App'x 676 ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS        December 19, 2003
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 03-10681
    Summary Calendar
    JASON DEWORD DADE,
    Plaintiff-Appellant,
    versus
    HAROLD ENTZ, Judge, 194th District; NFN THOMAS, Justice, Judge,
    5th District of Appeals; NFN FITZGERALD, Justice, Judge, 5th
    District of Appeals; CHARLES CAMPBELL, Judge, 5th District of
    Appeals; LEGISLATURE STATE OF TEXAS,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:03-CV-00228
    --------------------
    Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Jason DeWord Dade, Texas state prisoner # 1115939, appeals
    the dismissal of his pro se, in forma pauperis 
    42 U.S.C. § 1983
    complaint as frivolous pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(i)
    and 28 U.S.C. § 1915A(b)(1).   Dade argues that the district court
    judge who convicted and sentenced him, and the appellate court
    judges who affirmed his conviction, violated his constitutional
    *
    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    that this opinion should not be published and is not precedent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. 03-10681
    -2-
    rights.   He also argues that the Texas legislature violated his
    constitutional rights when it enacted various laws.
    Dade’s complaint lacks an arguable basis in law.    He has
    sued judicial officers who are immune from suit, without
    identifying facts that would overcome judicial immunity.     See
    Boyd v. Biggers, 
    31 F.3d 279
    , 284 (5th Cir. 1994).     He has also
    sued the Texas legislature, which enjoys Eleventh Amendment
    immunity.   See Puerto Rico Aqueduct and Sewer Auth. v. Metcalf &
    Eddy, Inc., 
    506 U.S. 139
    , 144 (1993).     Additionally, the issues
    Dade raises imply the invalidity of his conviction and sentence.
    Dade’s conviction was not reversed on direct appeal, and there is
    no indication in the record that it was expunged by an executive
    order, declared invalid by a state tribunal authorized to make
    such a determination, or called into question by a federal
    court’s issuance of a writ of habeas corpus.    Therefore, Dade has
    failed to state a claim for a § 1983 constitutional violation.
    See Johnson v. McElveen, 
    101 F.3d 423
    , 424 (5th Cir. 1996); Heck
    v. Humphrey, 
    512 U.S. 477
    , 486-87 (1994).    Although the district
    court’s dismissal was based on other grounds, we may dismiss this
    appeal on the alternate grounds of immunity and failure to
    satisfy the conditions set forth in Heck.     See Sojourner T. v.
    Edwards, 
    974 F.2d 27
    , 30 (5th Cir. 1992) (court may affirm
    judgment on any basis supported by the record).
    The appeal is frivolous and is therefore DISMISSED.     See
    Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983); 5TH CIR.
    No. 03-10681
    -3-
    R. 42.2.   The dismissal of this appeal and the district court’s
    dismissal each count as a “strike” for purposes of 
    28 U.S.C. § 1915
    (g).    See Adepegba v. Hammons, 
    103 F.3d 383
    , 387-88 (5th
    Cir. 1996).   Dade is WARNED that if he accumulates three strikes
    he may not proceed 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.
    See 
    28 U.S.C. § 1915
    (g).
    APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS WARNING ISSUED.