McPherson v. Curry

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 12, 2001
• Docket: 01-10112
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10112 Conference Calendar

AMARIO LYNN MCPHERSON,

Plaintiff-Appellant,

versus

TIM CURRY, Tarrant County District Attorney; TARRANT COUNTY GRAND JURY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CV-1541-Y -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Amario Lynn McPherson, Texas prisoner No. 743366, appeals

the district court’s dismissal of his complaint pursuant to 28

U.S.C. §§ 1915A (b)(1) and 1915(e)(2)(b). McPherson alleged in

his complaint that Tarrant County, Texas, District Attorney Tim

Curry conspired with members of the Tarrant County Grand Jury to

issue a fraudulent indictment against McPherson. McPherson

sought relief under 42 U.S.C. §§ 1981, 1983, and 1987; the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10112 -2-

Racketeer Influenced and Corrupt Organizations (RICO) statute, 18

U.S.C. § 1961(l); and various federal criminal statutes.

The district court determined that McPherson’s § 1983 and

1981 civil rights claims were time-barred; that his RICO claims

were frivolous; and that no private causes of action existed

under § 1987 or any of the criminal statutes cited by McPherson.

On appeal, McPherson challenges only the dismissal of his

claims under § 1983. He has thus abandoned the other grounds for

recovery that he raised in the district court. Evans v. City of

Marlin, Tex., 986 F.2d 104, 106 n.1 (5th Cir. 1993); FED. R. APP.

P. 28(a)(6).

We find no error in the district court’s determination that

McPherson’s § 1983 claims were not timely filed. Denton v.

Hernandez, 504 U.S. 25, 31-34 (1992). In any event, we note that

McPherson’s claims are frivolous because both the district

attorney and members of the grand jury are entitled to absolute

prosecutorial immunity from claims under § 1983. Martone v.

McKeithen, 413 F.2d 1373, 1375-76 (5th Cir. 1969); see Sojourner

T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).

McPherson’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.

The dismissal of this appeal and the dismissal as frivolous

by the district court each count as a "strike" for purposes of 28

U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88

(5th Cir. 1996). McPherson, therefore, has two "strikes" under No. 01-10112 -3-

28 U.S.C. § 1915(g). We caution McPherson 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; SANCTIONS WARNING ISSUED.