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Johnson v. Bigelow, 06-30255 (2007)

Court: Court of Appeals for the Fifth Circuit Number: 06-30255 Visitors: 34
Filed: Apr. 17, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 17, 2007 Charles R. Fulbruge III Clerk No. 06-30255 Conference Calendar DARRELL JOHNSON, Plaintiff-Appellant, versus RAYMOND C. BIGELOW, District Court Judge Section “I”, Orleans Criminal District Court, Defendant-Appellee. - Appeals from the United States District Court for the Eastern District of Louisiana USDC No. 2:05-CV-6647 - Before HIGGINBOTHAM, BENAVIDES, and PRADO, Ci
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                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 17, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 06-30255
                          Conference Calendar


DARRELL JOHNSON,

                                      Plaintiff-Appellant,

versus

RAYMOND C. BIGELOW, District Court Judge Section “I”,
Orleans Criminal District Court,

                                      Defendant-Appellee.

                       --------------------
          Appeals from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:05-CV-6647
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

     Darrell Johnson, Louisiana prisoner # 114419, has filed a

motion for leave to proceed in forma pauperis (IFP) on appeal.

The district court denied Johnson’s motion to appeal IFP and

certified that the appeal was not taken in good faith.        By

moving for IFP, Johnson is challenging the district court’s

certification.     See Baugh v. Taylor, 
117 F.3d 197
, 202 (5th Cir.

1997).




     *
       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this opinion should not be published and is not precedent except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. 06-30255
                                 -2-

     Johnson argues that the district court erred in dismissing

his 42 U.S.C. § 1983 suit because Judge Bigelow is not judicially

immune from claims for equitable relief and for attorney’s fees.

He also argues that federal courts, via § 1983, may address

unconstitutional actions taken by state courts by awarding

injunctive relief.

     Johnson is correct that judicial immunity does not bar

claims for injunctive or declaratory relief in civil rights

actions.    See Holloway v. Walker, 
765 F.2d 517
, 525 (5th Cir.

1985).    The dismissal of his claims for such relief was

nevertheless appropriate as the federal courts have no authority

to direct state courts or their judicial officers in the

performance of their duties.    See Moye v. Clerk, DeKalb County

Superior Court, 
474 F.2d 1275
, 1276 (5th Cir. 1973).     Johnson’s

request for attorney’s fees pursuant to 42 U.S.C. § 1988, which

allows a district court, in its discretion, to award attorney’s

fees to a prevailing party in a § 1983 action, was also properly

dismissed as Johnson did not prevail in his § 1983 suit.      See

§ 1988.

     As Johnson has not shown that the district court’s dismissal

of his appeal was incorrect, his request for IFP is denied and

his appeal is dismissed as frivolous.      See 
Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2.   The district court’s dismissal of his

§ 1983 suit and this court’s dismissal of this appeal as

frivolous each count as strikes for purposes of 28 U.S.C.
                            No. 06-30255
                                 -3-

§ 1915(g).    See Adepegba v. Hammons, 
103 F.3d 383
, 385-87 (5th

Cir. 1996).   Johnson is cautioned that once he accumulates three

strikes, he may not proceed IFP 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

§ 1915(g).

     IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.

Source:  CourtListener

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