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Walker v. State of Mississippi, 21-60442 (2021)

Court: Court of Appeals for the Fifth Circuit Number: 21-60442 Visitors: 16
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   opinion should not be published and is not precedent except under the limited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.
Case: 21-60442       Document: 00516044473         Page: 2    Date Filed: 10/06/2021




                                    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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Case: 21-60442      Document: 00516044473           Page: 3     Date Filed: 10/06/2021




                                     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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Case: 21-60442      Document: 00516044473           Page: 4     Date Filed: 10/06/2021




                                     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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Source:  CourtListener

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