Krueger v. Reimer

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 14, 1995
• Docket: 95-50461
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50461 Summary Calendar __________________

Kent Anthony Krueger,

Plaintiff-Appellant,

versus

Bill Reimer, District Attorney; and Fred Moore, Judge, Comal County,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the Western District of Texas ______________________________________________ (September 26, 1995)

Before KING, SMITH and BENAVIDES, Circuit Judges.

Per Curiam:

Kent Anthony Krueger appeals from the district court's

dismissal as frivolous of his 42 U.S.C. § 1983 claim against Comal

County, Bill Reimer, District Attorney of Comal County, and Fred

Moore, a Texas state district judge. We will affirm.

I. BACKGROUND

Krueger, a Texas prisoner, filed a civil rights action

pursuant to 42 U.S.C. § 1983 against Reimer and Moore, alleging that they conspired to deprive him of his right to appeal his

conviction by denying his request to proceed in forma pauperis on

appeal and by denying his right to self-representation. He also

asserted that Comal County was liable because Reimer and Moore

acted as final policy makers for Comal County. The magistrate

judge recommended that Krueger's claims should be dismissed as

frivolous because they lacked an arguable basis in law or fact and

that the district court should warn Krueger of the possible

imposition of sanctions for filing future frivolous actions. The

district court adopted the magistrate's recommendations, and

dismissed Krueger's suit with prejudice. Krueger filed a timely

appeal.

II.

Dismissal of an in forma pauperis petition under 28 U.S.C. §

1915(d) is permissible if the district court is "satisfied that the

action is frivolous or malicious." Graves v. Hampton, 1 F.3d 315,

317 (5th Cir. 1993). An action is frivolous if it lacks an

arguable basis either in law or in fact. Neitzke v. Williams, 490

U.S. 319, 325, 109 S. Ct. 1827, 1831-32 (1989). We review a

district court's section 1915(d) dismissal under an abuse of

discretion standard. Denton v. Hernandez, U.S. , 112 S.

Ct. 1728, 1734 (1992). We have reviewed the record, and we affirm

the district court's dismissal for the following reasons:

(1) The Supreme Court has held that, in order to recover damages

for harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a section 1983 plaintiff must

2 prove that the conviction has been reversed on direct appeal,

expunged by executive order, declared invalid by a state

tribunal authorized to make such a determination, or called

into question by a federal court's issuance of a writ of

habeas corpus. Heck v. Humphrey, U.S. , 114 S. Ct.

2364, 2372 (1994). To the extent that Krueger's claims, if

successful, would necessarily imply that his state criminal

conviction is invalid, they are not cognizable under section

1983 because Krueger has not proved that his conviction and

sentence for burglary have been invalidated.

(2) Reimer and Judge Moore are absolutely immune from liability in

Krueger's section 1983 suit. Despite the applicability of

Heck, a district court may appropriately consider the possible

applicability of the doctrine of absolute immunity as a

threshold matter in making a section 1915(d) determination.

See Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).

Reimer, as a district attorney, is absolutely immune in a

civil rights suit for any actions taken pursuant to his role

as State advocate in preparing for the initiation of judicial

proceedings or for trial. Id. at 285. Similarly, judicial

officers enjoy absolute immunity from liability for damages

for acts performed in the exercise of their judicial

functions. Id. at 284. Krueger's claims against Reimer and

Judge Moore concern their actions during Krueger's criminal

trial and, therefore, are covered by the doctrines of

prosecutorial and judicial immunity.

(4) Krueger's allegation that Comal County is liable because

3 Reimer and Moore acted as final policy makers for the County

is without foundation in law or in fact. In order to recover

a judgment against a local governmental entity under section

1983, Krueger must establish that he sustained a deprivation

of his constitutional rights as a result of some official

policy, practice, or custom of the governmental entity.

Monell v. Department of Social Servs. of the City of New York,

436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978). A local

judge acting in his or her judicial capacity is not considered

a local government official whose actions are attributable to

the county. See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.

1992); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.) cert.

denied, 474 U.S. 1007 (1985).

If a district attorney exceeds the scope of his

prosecutorial duties, a county may be held liable under

certain limited circumstances. See Turner v. Upton County,

915 F.2d 133, 137-38 (5th Cir. 1990), cert. denied, 498 U.S.

1069 (1991) (county may be held liable for the acts of

district attorney who entered into conspiracy with county

sheriff, the ultimate repository of law enforcement power in

the county). Krueger has made no specific factual allegations

that either Reimer or Judge Moore acted outside the scope of

his prosecutorial or judicial functions. Because both Reimer

and Judge Moore were acting in their official capacities in

Krueger's criminal trial, their actions do not constitute the

official policy of Comal County.

(5) Krueger also contends that the district court erred in

4 dismissing his claims because it did not review the fifty-two

exhibits that Krueger filed with his objections to the

magistrate judge's report. Our review of the record indicates

that the district court conducted a de novo review of the

magistrate's report and the record, including Krueger's

exhibits, before dismissing the section 1983 action.

Krueger's contention that the trial court failed to review the

exhibits lacks merit.

The district court did not abuse its discretion in concluding

that Krueger claims have no arguable basis in law or in fact.

Accordingly, we affirm the district court's dismissal of his

section 1983 claim as frivolous.