Lawson v. Moore ( 1995 )


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  •                     IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT
    
                                    __________________
    
                                       No. 95-60232
                                    __________________
    
    
    JAMES BERNARD LAWSON,
    
                                                    Plaintiff-Appellant,
    
    versus
    
    MICHAEL MOORE; STATE OF MISSISSIPPI;
    CYNTHIA SPEETJENS; WILLIAM F. COLEMAN,
    Circuit Judge; THOMAS FORTNER, Attorney;
    CITY OF CLINTON, MISSISSIPPI,
    Police Department,
    
                                                    Defendants-Appellees.
    
    
    
                              - - - - - - - - - -
                 Appeal from the United States District Court
                   for the Southern District of Mississippi
                             USDC No. 3:94-CV-713
                              - - - - - - - - - -
                                 July 18, 1995
    
    Before JOLLY, DAVIS and EMILIO M. GARZA, Circuit Judges.
    
    PER CURIAM:*
    
         James     B.    Lawson's    motion   for   leave   to   proceed   in   forma
    
    pauperis (IFP) is hereby DENIED.
    
         A reviewing court will disturb a district court's dismissal of
    
    a pauper's complaint as frivolous only on finding an abuse of
    
    discretion.         A district court may dismiss such a complaint as
    
    
         *
              Local Rule 47.5 provides: "The publication of opinions
    that have no precedential value and merely decide particular
    cases on the basis of well-settled principles of law imposes
    needless expense on the public and burdens on the legal
    profession." Pursuant to that Rule, the court has determined
    that this opinion should not be published.
                                     No. 95-60232
                                          -2-
    
    frivolous "`where it lacks an arguable basis either in law or in
    
    fact.'"    Denton v. Hernandez, 
    504 U.S. 25
    , 31, 33 (1992)(quoting
    
    Neitzke v. Williams, 
    490 U.S. 319
    , 325 (1989)).
    
         Lawson's claims that he was prosecuted maliciously implicate
    
    the State, Attorney General Moore, Assistant District Attorney
    
    Speetjens, and perhaps Judge Coleman. First, judges are absolutely
    
    immune from civil liability for their judicial activities unless
    
    they act in the "`clear absence of all jurisdiction.'"                  Stump v.
    
    Sparkman, 
    435 U.S. 349
    , 356-57 (1978)(citations omitted).                   Judge
    
    Coleman therefore was immune from Lawson's damages action.
    
         Second, prosecutors are absolutely immune from damages actions
    
    under 42     U.S.C.   §   1983   for   the   performance     of    prosecutorial
    
    functions.     Slavin v. Curry, 
    574 F.2d 1256
    , 1264 (5th Cir.),
    
    modified in part, 
    583 F.2d 779
     (5th Cir. 1978).                   Such functions
    
    include the initiation of prosecution and presentation of evidence,
    
    Imbler v. Pachtman, 
    424 U.S. 409
    , 431 (1976), and the collection,
    
    examination, and interpretation of documents.                Cook v. Houston
    
    Post, 
    616 F.2d 791
    , 793 (5th Cir. 1980).              Moore and Speetjens
    
    therefore were immune from Lawson's damages action.
    
         Third, the Eleventh Amendment protects states from damages
    
    actions.      Edelman     v.   Jordan,   
    415 U.S. 651
    ,    662-63     (1974).
    
    Mississippi has not waived its sovereign immunity.                 MISS. CODE ANN.
    
    § 11-46-5(4)(supp. 1994).          The State is immune from Lawson's
    
    damages action.
    
         Lawson contends that the defendants pressed forward with his
    
    prosecution despite knowing of various constitutional violations by
    
    police officers, but he does not allege how the City of Clinton was
                                        No. 95-60232
                                             -3-
    
    involved.     He has waived any contentions against the City of
    
    Clinton,    which       could    have   been   liable   only    for    the    police
    
    misconduct Lawson alleges.                By failing to brief his possible
    
    appellate issues against the City, Lawson has abandoned those
    
    issues.     See Yohey v. Collins, 
    985 F.2d 222
    , 224-25 (5th Cir.
    
    1993).
    
         Lawson contends that the district court erred by dismissing
    
    his claims pursuant to Heck v. Humphrey, 
    114 S. Ct. 2364
     (1994).
    
    The district court applied Heck only to Lawson's claims against
    
    Attorney Fortner. Lawson does not repeat his conspiracy contention
    
    implicating Fortner.            Fortner is not a state actor and could not
    
    have violated       §    1983    absent    some   involvement   with    the    other
    
    defendants.     Polk County v. Dodson, 
    454 U.S. 312
    , 325 (1981).
    
    Because we may dispose of Lawson's claim against Fortner on the
    
    basis that Fortner is not a state actor, we need not reach Lawson's
    
    Heck contention.
    
         Finally, Lawson is warned that he will be sanctioned if he
    
    files frivolous appeals in the future.               See Smith v. McCleod, 
    946 F.2d 417
    , 418 (5th Cir. 1991); Jackson v. Carpenter, 
    921 F.2d 68
    ,
    
    69 (5th Cir. 1991).
    
         APPEAL DISMISSED.