Hicks v. Unell ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10011
Summary Calendar
LEROY HICKS,
Plaintiff-Appellant,
versus
GARY UNELL; DALLAS COUNTY;
JOHN VANCE, DA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:95-CV-2355
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April 1, 1996
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
Leroy Hicks appeals the district court’s 28 U.S.C. § 1915(d)
dismissal with prejudice of his pro se, in forma pauperis (IFP),
42 U.S.C. § 1983 action. Hicks contends that against his court
appointed attorney, Gary Unell, and John Vance, the district
attorney who prosecuted Hicks’ criminal case, conspired to
*
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that this opinion should not be published and is not precedent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. 96-10011
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maliciously and improperly convict him, that Unell was
ineffective, and that the indictment against him was void.
The district court properly dismissed with prejudice Hicks’
§ 1983 claims which directly attack his underlying conviction
because Hicks’ conviction has not been invalidated or called into
question and because district attorney Vance is absolutely immune
from damages. See Heck v. Humphrey, 114 S. Ct. 2364, 2372
(1994); Boyd v. Biggers, 31 F.3d 279, 284-85 (5th Cir. 1994).
Accordingly, Hicks’ appeal is dismissed as frivolous. See 5th
Cir. R. 42.2. Hicks’ motion for failure of process is DENIED as
unnecessary.
We caution Hicks that the filing of frivolous appeals could
result in sanctions. E.g. Smith V. McCleod, 946 F.2d 417, 418
(5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68, 69 (5th Cir.
1991). We advise Hicks to review any other appeals pending in
this court at this time and recommend that he move to withdraw
any appeal that is frivolous.
APPEAL DISMISSED. MOTION DENIED.