Rogers v. Dept of Corrections

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 00-31390
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-31390 Conference Calendar

JOSEPH R. ROGERS,

Plaintiff-Appellant,

versus

DEPARTMENT OF CORRECTIONS; FRED Y. CLARK; BOARD OF PAROLE; PEGGY LANDRY; VEDEGRA SCOTT; R. JONES,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 00-CV-726-D - - - - - - - - - - June 13, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Joseph R. Rogers, Louisiana prisoner #105914, appeals from

the district court’s dismissal of his civil-rights lawsuit filed

pursuant to 42 U.S.C. § 1983. The district court dismissed his

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii), and

(iii), because it held that his complaint lacked an arguable

basis in law or fact, failed to state a claim upon which relief

could be granted, and sought damages against defendants who were

absolutely immune.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-31390 -2-

Rogers alleged that his constitutional rights were violated

due to the revocation of his parole and the refusals of his

requests for a revocation rehearing. The Louisiana Department of

Public Safety and Corrections is absolutely immune from suit due

to the Eleventh Amendment. See Champagne v. Jefferson Parish

Sheriff’s Office, 188 F.3d 312, 313 (5th Cir. 1999). Members of

the Louisiana Board of Parole are absolutely immune from suit

when performing adjudicative functions. See Walter v. Torres,

917 F.2d 1379, 1380 (5th Cir. 1990). Because all of the

defendants named in Rogers’ complaint are absolutely immune from

suit, his complaint was properly dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(iii).

Furthermore, his claim challenging the revocation of his

parole is barred under Heck v. Humphrey, 512 U.S. 477, 486-87

(1994). This claim was therefore properly dismissed as frivolous

and for failure to state a claim on which relief may be granted

under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

His 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 as frivolous counts as a “strike”

for purposes of 28 U.S.C. § 1915(g), as does the district court’s

dismissal. See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th

Cir. 1996). We warn Rogers that if he accumulates three

“strikes” under 28 U.S.C. § 1915(g), he will not be able to

proceed in forma pauperis in any civil action or appeal filed

while he is incarcerated or detained in any facility unless he is No. 00-31390 -3-

under imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

APPEAL DISMISSED; STRIKE WARNING ISSUED.