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

                                                FILED
                                                                 May 7, 2009
                               No. 08-40102
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

ROBERT ROY BUTCHER

                                           Plaintiff-Appellant

v.

JUDITH K GUTHRIE; LEONARD DAVIS

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 6:07-CV-410


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Robert Roy Butcher, Texas prisoner # 719502, appeals the dismissal of his
lawsuit against United States Magistrate Judge Judith K. Guthrie and United
States District Judge Leonard Davis. Butcher alleged that the defendant judges
had violated his rights by mishandling an earlier lawsuit brought by Butcher.
Because the district court dismissed Butcher’s lawsuit pursuant to 28 U.S.C.
§ 1915A(b) not only as frivolous but also as failing to state a claim upon which



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-40102

relief may be granted and as seeking monetary relief from defendants immune
from such relief, we review the dismissal de novo. See Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005).
      Butcher argues that the defendant judges were not immune from money
damages but were liable to him under the Federal Torts Claim Act for their
rulings in his earlier federal lawsuit.      However, the district court properly
concluded that the defendant judges were immune from the damages Butcher
sought. See McAfee v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989).
Butcher also argues that the defendant judges were liable under 42 U.S.C.
§ 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). However, § 1983 does not apply to federal
officials, see Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005), and the
defendant judges were immune under Bivens because their handling of Butcher’s
earlier lawsuit was a judicial act “not performed in the clear absence of all
jurisdiction.” Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). To the
extent that Butcher seeks reinstatement of his previous lawsuit, he is precluded
from doing so. See Alan v. McCurry, 449 U.S. 90, 94 (1980).
      As Butcher’s appeal presents no legal points arguable on their merits, it
is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is dismissed. See 5 TH C IR. R. 42.2. The dismissal of
this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Butcher previously
accumulated two strikes when his federal lawsuit against a Texas state court
judge and others was dismissed as frivolous in the district court and on appeal.
See Butcher v. Craig, 169 F. App’x 252, 252-53 (5th Cir. 2006). Accordingly,
Butcher is now barred from proceeding in forma pauperis pursuant to § 1915 in
any civil action or appeal filed while he is incarcerated or detained in any facility
unless he is in imminent danger of serious physical injury. See § 1915(g).
      APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

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