Hinkle v. Johnston

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 01-10185
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10185 Conference Calendar

ERIC R. HINKLE,

Plaintiff-Appellant,

versus

STEVEN JAMES JOHNSTON; DANIEL ALTMAN; FRED W. DAVIS, Presiding Judge sued in his individual and official capacity; TERRIE LIVINGSTON, Justice 2nd Court of Appeals sued in his individual and official capacity; LEE ANN DAUPHINOT, Justice 2nd Court of Appeals sued in her individual and official capacity; DAVID RICHARDS, Justice 2nd Court of Appeals sued in his individual and official capacity; THOMAS R. PHILLIPS, Chief Justice, Texas Supreme Court sued in his individual and official capacity; NATHAN L. HECHT, Justice, sued in his individual and official capacity; CRAIG T. ENOCH, Justice sued in his individual and official capacity; PRISCILLA R. OWENS, Justice sued in her individual and official capacity; JAMES A. BAKER, Justice, sued in his individual and official capacity; GREG ABBOTT, Justice, sued in his individual and official capacity; DEBORAH G. HANKINSON, Justice sued in her individual and official capacity; HARRIET O’NIELL, Justice sued in her individual and official capacity; ALBERTO R. GONZALES, Justice sued in his individual and official capacity,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:01-CV-44-A -------------------- June 13, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10185 -2-

Eric Randall Hinkle, Texas prisoner # 849430, appeals the

district court’s partial order of dismissal dismissing his 42

U.S.C. § 1983 claims against the Texas judges and justices named

in his complaint pursuant to 28 U.S.C. § 1915A(b) based on

judicial immunity. Hinkle argues that the judges are not

entitled to judicial immunity because they acted in the absence

of all jurisdiction in handling his state civil lawsuit. The

crux of his jurisdictional argument is that because he was born

in Oklahoma, he was not a resident of Texas and so the Texas

state courts did not have personal jurisdiction over him or his

lawsuit. He also argues that the Texas courts did not

impartially consider his lawsuit and dismissed it based on

procedural technicalities; that the judges were biased and should

have recused themselves; and that the judges wrongfully dismissed

his civil lawsuit procedurally under state law.

Judicial officers are entitled to absolute immunity from

damage claims under § 1983 arising out of acts performed in the

exercise of their judicial functions. Graves v. Hampton, 1 F.3d

315, 317 (5th Cir. 1993). “[J]udicial immunity is not overcome by

allegations of bad faith or malice.” Mireles v. Waco, 502 U.S.

9, 11 (1991). A judge is not deprived of immunity because the

action taken was in error. Id. at 12-13. A judge’s immunity is

overcome only for actions not taken in the judge’s judicial

capacity or action taken in complete absence of all jurisdiction.

Id. at 11-12.

Hinkle’s arguments amount to no more than arguing that the

judges’ actions were improper. His arguments do not show that No. 01-10185 -3-

the district court erred in dismissing his claims against the

judges under § 1915A(b)(2). Ruiz v. United States, 160 F.3d 273,

275 (5th Cir. 1998) (de novo review).

Hinkle also argues that the district court erred in

dismissing his action for failure to file an amended complaint by

the date ordered. Because Hinkle did not appeal the district

court’s final judgment dismissing his remaining claims, this

court does not have jurisdiction to review that judgment.

Hinkle’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.

42.2. Hinkle is hereby informed that the dismissal of this

appeal as frivolous counts as a strike for purposes of 28 U.S.C.

§ 1915(g). We hereby inform Hinkle that he has accumulated three

strikes, and that 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 28 U.S.C. § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS.