Clay v. Wilkinson Cty Bd Sup

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 01-60065
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60065 Conference Calendar

LOUIS JAMES CLAY, JR.,

Plaintiff-Appellant,

versus

WILKINSON CO. BOARD OF SUPERVISORS; LILLIE B. SANDERS,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:00-CV-261-BrS -------------------- June 13, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Louis James Clay, Jr., Mississippi inmate #08452, proceeding

pro se and in forma pauperis (“IFP”) appeals the district court’s

dismissal of his IFP civil rights complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(iii) for seeking monetary relief against a

defendant who is immune from such relief. Clay asserts that he

brought an actionable 42 U.S.C. § 1983 claim and that the

district court erred by dismissing his complaint without

affording Clay the opportunity to present proof of his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-60065 -2-

allegations. He states that public officials can be sued for

monetary damages. Clay asserts for the first time that the

district court judge should have been recused from the

proceedings.

Section 1915(e)(2)(B) requires a district court to dismiss

an IFP complaint at any time if the court determines that such

complaint “(i) is frivolous or malicious; (ii) fails to state a

claim upon which relief may be granted; or (iii) seeks monetary

relief against a defendant who is immune from such relief.”

§ 1915(e)(2)(B).

Because Clay did not move for recusal in the district court

our review of his assertion that the district court should have

been recused is for plain error only. See Douglass v. United

Servs. Auto. Assn, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc).

This claim would require resolution of factual issues and cannot

rise to the level of plain error. See United States v. Vital, 68

F.3d 114, 119 (5th Cir. 1995).

Judges are absolutely immune from civil suit for damages for

actions taken within their judicial capacity. Brewer v.

Blackwell, 692 F.2d 387, 396 (5th Cir. 1982). Clay does not

allege that Judge Lillie B. Sanders acted in the absence of

jurisdiction or in a non-judicial capacity, and she is absolutely

immune in this action for damages because her rulings were

undertaken in her judicial role. Clay has not briefed his claims

against the Wilkinson County Board of Supervisors. Those claims

are therefore considered to be abandoned. See Fed. R. App. P. No. 01-60065 -3-

28(a)(9); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995);

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

Accordingly, Clay’s appeal is DISMISSED as frivolous. See

5TH CIR. R. 42.2.

The dismissal of Clay’s complaint as frivolous and the

dismissal of this appeal as frivolous each count as a strike for

purposes of 28 U.S.C. § 1915(g). See Patton v. Jefferson

Correctional Ctr., 136 F.3d 458, 462-64 (5th Cir. 1998); Adepegba

v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). We caution

Clay that once 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 28 U.S.C.

§ 1915(g).

APPEAL DISMISSED; 28 U.S.C. § 1915(g) WARNING ISSUED.