Filed: Oct. 06, 2021
Latest Update: Oct. 07, 2021
Case: 21-60442 Document: 00516044473 Page: 1 Date Filed: 10/06/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60442
FILED
October 6, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Bobby Walker, Jr.,
Plaintiff—Appellant,
versus
The State of Mississippi; Angel Myers McIlrath; Justin
Michael Lovorn; Robert P. Krebs, Judge,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:20-CV-338
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Bobby Walker Jr., Mississippi prisoner # 200997006, has appealed the
dismissal as frivolous of his civil rights action against the State of Mississippi,
Jackson County District Attorney Angel McIlrath, Assistant District
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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No. 21-60442
Attorney Justin Lovorn, and Circuit Judge Robert Krebs. See 28 U.S.C.
§ 1915(e)(2)(B)(i). The district court determined that the State of
Mississippi was not amenable to suit under 42 U.S.C. § 1983 and that the
individual defendants were absolutely immune from suit. Our review is for
an abuse of discretion. See Butler v. S. Porter, 999 F.3d 287, 292 (5th Cir.
2021).
Walker asserts that he should have been permitted to amend his
complaint to substitute the County of Jackson for the State of Mississippi as
a defendant. No error has been shown with respect to dismissal of the claims
against the State of Mississippi, and there is no reason to believe that Walker
can allege facts that would entitle him to relief from the County of Jackson.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
Walker’s claims against the individual defendants call into question
the validity of the bond revocation proceedings and, therefore, implicate the
rule in Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, to recover
damages for actions whose unlawfulness would imply the invalidity of the
adverse decisions with respect to his release on bond, Walker would have to
prove that the decisions have “been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ
of habeas corpus.”
Id. The applicability of the doctrine of absolute immunity
is ordinarily considered as a threshold question before reaching the Heck
analysis. See Boyd v. Biggers,
31 F.3d 279, 284 (5th Cir. 1994).
Prosecutors have absolute immunity from suit for actions performed
within the scope of their prosecutorial duties. Imbler v. Pachtman, 424 U.S.
409, 420-24, 431 (1976). “Prosecutorial immunity applies to the
prosecutor’s actions in initiating the prosecution and in carrying the case
through the judicial process.” Boyd,
31 F.3d at 285. “[A]cts undertaken by
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No. 21-60442
a prosecutor in preparing for the initiation of judicial proceedings or for trial,
and which occur in the course of his role as an advocate for the State, are
entitled to the protections of absolute immunity.” Buckley v. Fitzsimmons,
509 U.S. 259, 273 (1993). Absolute immunity does not extend to a
prosecutor’s acts that are investigatory. See
id. at 273-74. Walker’s
speculative accusations, if true, do not show that McIlrath or Lovorn acted
outside the scope of their prosecutorial duties or that either of them acted as
an investigator with respect to the bond revocation proceedings. See
id.
“Judicial officers are entitled to absolute immunity from claims for
damages arising out of acts performed in the exercise of their judicial
functions.” Boyd, 31 F.3d at 284. To prevail, Walker must show that Judge
Krebs’s actions were “nonjudicial in nature” or that they were “taken in the
complete absence of all jurisdiction.” See
id.
Walker contended below that the conditions set by Judge Krebs were
too restrictive, that bond was improperly revoked, and that the reinstatement
of bond was improperly denied; he contended that Judge Krebs was unfairly
biased. Walker complains on appeal that, without having an opportunity to
conduct discovery, he could not show how the judge and the prosecutors
were biased and conspired against him because he was charged with a sex
crime. “[J]udicial immunity is an immunity from suit, not just from ultimate
assessment of damages[, and it] is not overcome by allegations of bad faith or
malice.” Mireles v. Waco, 502 U.S. 9, 11 (1991); Ballard v. Wall,
413 F.3d 510,
515 (5th Cir. 2005).
Walker concedes that the actions of Judge Krebs were judicial in
nature. He contends instead that Judge Krebs exceeded his authority because
he is a judge of an “inferior” court and that Judge Krebs lacked jurisdiction
because he was not charged by a criminal complaint supported by an affidavit.
These contentions are without merit. See Pryer v. Gardner, 247 So. 3d 1245,
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No. 21-60442
1251 (Miss. 2018); Chapell v. State, 107 So. 3d 1003, 1006 (Miss. Ct. App.
2012).
The judgment is AFFIRMED. Walker’s motion for a preliminary
injunction is DENIED.
The district court’s dismissal of Walker’s complaint as frivolous
counts as a single strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996), abrogated in part on other grounds, Coleman
v. Tollefson,
575 U.S. 532, 537 (2015). We WARN Walker 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 § 1915(g).
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