     Case: 18-11376      Document: 00515384346         Page: 1    Date Filed: 04/16/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-11376                            April 16, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
GERALD BRADLEY,

                                                 Plaintiff-Appellant

v.

JUDGE WAYNE SALVANT; MITCH POE; STEVEN G. KING,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:15-CV-727


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Gerald Bradley, Texas prisoner # 1413012, appeals the dismissal of his
civil rights complaint, filed pursuant to 42 U.S.C. § 1983, against Judge Wayne
Salvant, prosecutor Mitch Poe, and attorney Steven G. King. He raised claims
challenging the defendants’ actions in the prosecution of his case resulting in
his conviction for two counts of aggravated sexual assault of a child under the
age of 14.       Specifically, he asserted that the defendants allowed 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-11376    Document: 00515384346      Page: 2   Date Filed: 04/16/2020


                                 No. 18-11376

unconstitutional empaneling of the grand jury, allowed the grand jury to indict
with unsupported facts, and denied him the right to confront the grand jury
and to challenge the array of grand jurors. He also alleged that state court
officials allowed the prosecution without an appropriate record of procedures,
the prosecution was malicious and the prosecutors engaged in misconduct, the
prosecutor gave false or misleading testimony to the grand jury, the prosecutor
refused to provide information relevant to the trial record, and his trial
attorney conspired with prosecutors by failing to protect his rights.
      The district court sua sponte dismissed the complaint for failure to state
a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The court found that the
claims against the trial judge and prosecutor were subject to dismissal on
grounds of absolute immunity and that the claims against King were subject
to dismissal because he was not acting under color of state law.
      We review de novo a dismissal for failure to state a claim under
§ 1915(e)(2). Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). To the extent
Bradley argues that we should consider documents that were not submitted to
the district court, we “may not consider new evidence furnished for the first
time on appeal and may not consider facts which were not before the district
court at the time of the challenged ruling.” Theriot v. Parish of Jefferson, 185
F.3d 477, 491 n.26 (5th Cir. 1999).        Bradley’s argument challenging the
withdrawal of reference to the magistrate judge is without merit. Under 28
U.S.C. § 636(c), the district court is provided with the authority “to vacate the
reference to the magistrate on its own motion.” Puryear v. Ede’s Ltd., 731 F.2d
1153, 1154 (5th Cir. 1984).
      Bradley’s allegations against the trial judge involved challenges to
decisions made during the trial process and to rulings on motions. These
actions occurred within the criminal proceedings, and Bradley does not allege



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                                No. 18-11376

that the court lacked jurisdiction. The claims were subject to dismissal on
grounds of judicial immunity. See Mireles v. Waco, 502 U.S. 9, 11 (1991).
Likewise, the prosecutor’s actions that serve the basis for Bradley’s complaint
were within the scope of his duty as a prosecutor. Thus, these claims were
subject to dismissal on grounds of absolute immunity. See Boyd v. Biggers, 31
F.3d 279, 285 (5th Cir. 1994). Finally, King was not a state actor for § 1983
purposes. See Polk Cty. v. Dodson, 454 U.S. 312, 317-18 (1981).
      The judgment of the district court is AFFIRMED.




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