Carey v. Black

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-20649 Summary Calendar

WESLEY CAREY, JR.,

Plaintiff-Appellant,

versus

NORMAN W. BLACK, Chief Judge; DAVID G. HALPERN, Assistant Attorney General; MINERVA CASTRO, Deputy Clerk; PATRICK E. HIGGINBOTHAM, U.S. Circuit Judge; JOHN M. DUHÉ, JR., U.S. Circuit Judge; DWAINE M. MASSEY,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-96-CV-679 - - - - - - - - - - April 4, 1997 Before KING, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

Texas prisoner Wesley Carey, Jr., #601696, seeks leave to

proceed in forma pauperis (IFP) to appeal the dismissal of his

civil rights action as frivolous. Carey’s motion for leave to

proceed IFP is GRANTED.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-20649 - 2 -

Because no further briefing is needed to determine Carey’s

appeal, we proceed to consider the merits of the appeal.

Dickinson v. Wainwright, 626 F.2d 1184, 1186 (5th Cir. 1980).

Carey contends that the district court erred by failing to hold a

hearing pursuant to Spears v. McCotter, 766 F.2d 179, 182 (5th

Cir. 1985), on his complaint; that the judicial defendants are

not immune from his claims for damages and injunctive relief; and

that his conspiracy contention against the defendants is

meritorious.

The judicial defendants in Carey’s case are absolutely

immune from damages for the actions forming the basis of Carey’s

complaint. Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995).

The judicial defendants are not immune from injunctive relief.

Holloway v. Walker, 765 F.2d 517, 525 (5th Cir.), cert. denied,

474 U.S. 1037 (1985). The conspiracy allegations in Carey’s

complaint are conclusional and do not indicate any constitutional

violations independent from his conspiracy claim. The district

court did not abuse its discretion by dismissing Carey’s

complaint as frivolous. Moreover, Carey’s appeal is frivolous

and therefore is dismissed as frivolous.

After payment of an initial partial filing fee of $2.53,

Carey shall make monthly payments of twenty percent of the

preceding month’s income credited to his account. See 28 U.S.C.

§ 1915(b). The agency having custody of Carey is directed to

forward payments from his prisoner account to the clerk of the No. 96-20649 - 3 -

district court each time the amount in his account exceeds $10

until the filing fee is paid. Id.

This appeal is the third action or appeal brought by Carey

while in prison that has been dismissed as frivolous. Carey may

pursue no further civil actions or appeals in forma pauperis

while in prison unless he “is under imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g).

APPEAL DISMISSED. 5TH CIR. R. 42.2. SANCTIONS IMPOSED.