Scheanette v. Curry

196 F. App'x 302

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 28, 2006
• Docket: 05-11065
• Status: Unpublished

Opinion

PER CURIAM: *

Dale Devon Scheanette, Texas death row prisoner # 999440, appeals the district court’s dismissal of his 42 U.S.C. § 1983 suit pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). His civil rights complaint alleged that the actions or inactions of several prosecutors in the Tarrant County District Attorney’s office violated his federal constitutional rights and the Americans with Disabilities Act (ADA). He also raised state law claims. Our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).

Contrary to Scheanette’s assertions on appeal, the defendants were absolutely immune from suit with respect to actions that were “intimately associated with the judicial phase of the criminal process.” See Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir.1976). Moreover, the district court was correct that Scheanette’s claims were conclusional. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990). The dismissal of Scheanette’s state law claims of negligence, negligent and reckless infliction of emotional distress, and false imprisonment is supported by the record. See Skipper v. United States, 1 F.3d 349, 352 (5th Cir.1993); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993); Dillard Dep’t Stores, Inc. v. Silva, 106 S.W.3d 789, 795 (Tex.App.2003); Campos v. Ysleta Gen. Hosp., Inc., 836 S.W.2d 791, 795 (Tex.App.1992).

Scheanette’s appeal is without arguable merit and is dismissed as frivolous. See 5th Cir. R. 42.2; Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). The dismissal of this appeal as frivolous and the district court’s dismissal of his § 1983 suit both count as strikes for purposes of 28 U.S.C. § 1915(g). Scheanette has at least one other strike. See Scheanette v. Thomas, No. 4:05-CV-208 (N.D.Tex. Apr. 8, 2005), aff'd, 182 Fed.Appx. 345 (5th Cir.2006). As he has at least three strikes under § 1915(g), he is barred from proceeding 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 Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996); § 1915(g).

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

* 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.