McCoy v. Jones

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2002
• Docket: 01-31221
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31221 Conference Calendar

BILLY M. McCOY,

Plaintiff-Appellant, versus

JERRY L. JONES; DANIEL MILTON MOORE, III; JIMMY N. DIMOS; JERRY FINLEY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CV-770 -------------------- April 10, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Billy M. McCoy, Louisiana prisoner # 75868, proceeding pro

se and in forma pauperis (IFP), appeals the dismissal as

frivolous of his 42 U.S.C. § 1983 complaint against District

Attorney Jerry L. Jones, Judge Daniel Milton Moore, III, and his

defense attorneys, Jimmy N. Dimos and Jerry Finley. Because

McCoy does not allege that any defendant was acting outside the

scope of his duties as prosecuting attorney, judge, or defense

attorney, each of these defendants is immune from suit for money

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-31221 -2-

damages. See Polk County v. Dodson, 454 U.S. 312, 325 (1981);

see also Boyd v. Biggers, 31 F.3d 279, 285 (5th Cir. 1994).

Although McCoy amended his complaint to seek injunctive and

declaratory relief, FED. R. CIV. P. 15(a), those claims are

meritless as well. All of McCoy’s claims are challenges to the

fact or duration of his custody, and his sole relief is a writ of

habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 499

(1973). This appeal is without arguable merit and, thus,

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

1983). Because the appeal is frivolous, it is DISMISSED, and

McCoy’s request for the appointment of counsel is DENIED. 5TH

CIR. R. 42.2; Mayfield v. Collins, 918 F.2d 560 (5th Cir. 1990).

The three-strikes provision of 28 U.S.C. § 1915(g)

“prohibits a prisoner from proceeding IFP if he has had three

actions or appeals dismissed for frivolousness, maliciousness, or

failure to state a claim.” Carson v. Johnson, 112 F.3d 818, 819

(5th Cir. 1997). McCoy has previously had at least one strike

against him. McCoy v. Stalder, No. 97-48-A-1 (M.D. La. Mar. 10,

1997). McCoy has acquired another two strikes as a result of

this frivolous complaint and appeal. See Adepegba v. Hammons,

103 F.3d 383, 386-88 (5th Cir. 1996). He now has at least three

strikes. Accordingly, McCoy may no longer 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; 28 U.S.C. § 1915(g) BAR IMPOSED; REQUEST

FOR COUNSEL DENIED.