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

                                                                            FILED
                                                                        December 15, 2008

                                     No. 08-40395                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


BILLY RAY JOHNSON, By and Through Lue Wilson as Next Friend of Ray
Johnson; LUE WILSON

                                                  Plaintiffs - Appellants
v.

DONALD W DOWD, In his official and personal capacity; RALPH K
BURGESS, In his official and personal capacity; THOMAS JOHNSON;
GLENN PERRY; MORRIS DEES; ANN ELLISOR; LENDA BEACHUM

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:07-CV-99


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       The plaintiffs appeal the district court’s dismissal of their action based on
judicial immunity and failure to state a claim. For the following reasons, we
affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40395

                           I. FACTS AND PROCEEDINGS
      Billy Ray Johnson suffered disabling injuries resulting from an assault,
and his friend Lue Wilson brought a civil suit against the assailants on his
behalf. Johnson ultimately obtained a $9 million verdict in a jury trial presided
over by Judge Ralph K. Burgess. In subsequent proceedings before Judge
Donald D. Dowd, Lenda Beachum was appointed temporary guardian of Johnson
and his estate. Wilson then filed this action under 42 U.S.C. § 1983 and 42
U.S.C. § 1985 on his own behalf and on behalf of Johnson as next friend. The
complaint alleges that the defendants—Burgess, Dowd, Beachum, counsel for
Beachum and Johnson, and Ann Ellisor, the owner of the nursing center where
Johnson resided at that time—violated the plaintiffs’ constitutional rights in
both the civil suit against Johnson’s assailants and the guardianship
proceedings.
      The defendants filed motions to dismiss under Rule 12(b)(6). The district
court dismissed the claims against Burgess and Dowd based on judicial
immunity and against the non-judicial defendants for failure to state a claim;
the district court’s order also expressly allowed the plaintiffs to amend their
complaint with respect to the non-judicial defendants only. The plaintiffs filed
an amended complaint that did not contain any new allegations and reiterated
the same claims against Burgess and Dowd. Again, the defendants moved to
dismiss, and Burgess and Dowd filed a motion for sanctions under Rule 11. The
district court ultimately dismissed all claims with prejudice and sanctioned the
plaintiffs for re-filing claims against Burgess and Dowd. The plaintiffs now
appeal the dismissal of their claims against all defendants.1


      1
          The plaintiffs do not appeal the district court’s award of Rule 11 sanctions.

                                                2
                                  No. 08-40395

                         II. STANDARD OF REVIEW
      “This court reviews de novo a district court’s dismissal pursuant to Rule
12(b)(6).” Ballard v. Wall, 413 F.3d 510, 514 (5th Cir. 2005). “All of the
plaintiff’s allegations must be accepted as true, and the dismissal will be
affirmed only if it appears that no relief could be granted under any set of facts
that could be proven consistent with the allegations.” Id. at 514–515 (internal
quotation omitted).     However, “conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(quotation omitted).
                              III. DISCUSSION
      The plaintiffs contend that the district court erred in holding that Burgess
and Dowd were immune from suit. Judicial immunity can be overcome in only
two sets of circumstances: (1) “a judge is not immune from liability for
nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity”; and
(2) “a judge is not immune for actions, though judicial in nature, taken in the
complete absence of all jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991).
In determining whether a judge acted outside the scope of his judicial capacity,
this court considers:
      (1) whether the precise act complained of is a normal judicial
      function; (2) whether the acts occurred in the courtroom or
      appropriate adjunct spaces such as the judge’s chambers; (3)
      whether the controversy centered around a case pending before the
      court; and (4) whether the acts arose directly out of a visit to the
      judge in his official capacity.
Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). These factors are
broadly construed in favor of immunity. Id. Regarding the second set of

                                        3
                                  No. 08-40395

circumstances articulated in Mireles, a judge is entitled to judicial immunity as
long as he had “some subject-matter jurisdiction” over the dispute, even if he
acted “in excess of his authority.” Id. at 1125.
      According to the complaint, Burgess improperly appointed Johnson’s
guardian ad litem during the civil proceedings against his assailants.           In
addition, Burgess allegedly excused Wilson from jury duty in unrelated
proceedings to allow him to attend a deposition conducted by Johnson’s
attorneys. Examining Burgess’s alleged conduct under the Melina factors, it is
clear that he was acting in his judicial capacity, and there is no allegation that
he did not have subject matter jurisdiction to conduct these proceedings. The
complaint’s allegations with respect to Dowd are equally ineffective to overcome
the protections of judicial immunity, as they relate solely to his role as the judge
presiding over the temporary guardianship proceedings. The complaint alleges
that Dowd failed to ensure that Johnson had proper counsel and a guardian ad
litem to protect his interests and did not provide adequate notice of the
proceedings to the plaintiffs. Again, the complaint contains no allegation that
Dowd’s actions were taken outside the scope of his judicial authority or without
jurisdiction over the guardianship proceedings. At most, the plaintiffs have
alleged procedural errors, and “[a] judge is absolutely immune from liability for
his judicial acts even if his exercise of authority is flawed by the commission of
grave procedural errors.”     Stump v. Sparkman, 435 U.S. 349, 359 (1978).
Therefore, the district court properly concluded that Burgess and Dowd were
immune from suit.
      The plaintiffs correctly note that, even if Burgess and Dowd are entitled
to judicial immunity, the non-judicial defendants can still be held liable as “state


                                         4
                                  No. 08-40395

actors” under § 1983. See Ballard, 413 F.3d at 518. However, private conduct
by these defendants will be charged to the State only if one of the following tests
is satisfied: (1) if the private entity “performs a function which is traditionally
the exclusive province of the state,” or (2) if the state “exercised coercive power
or has provided such significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the [s]tate,” or (3) where the
government has “so far insinuated itself into a position of interdependence with
the private actor that it was a joint participant in the enterprise.” Bass v.
Parkwood Hosp., 180 F.3d 234, 242 (5th Cir. 1999) (quotations and alterations
omitted). “Under any formula, . . . the inquiry into whether private conduct is
fairly attributable to the state must be determined based on the circumstances
of each case.” Id.
      The plaintiffs have alleged no facts that would support a finding of state
action. From a fair reading of the complaint, it appears that the non-judicial
defendants were litigants and participants in court proceedings, and had no
other relationship to, or interaction with, Burgess and Dowd.          It is well-
established that “no ‘state action’ is involved when the state merely opens its
tribunals to private litigants.” Hollis v. Itawamba County Loans, 657 F.2d 746,
749 (5th Cir. Unit A Sept. 1981). A private citizen does not become a state actor
simply “by filing a private civil action, even where authorized by state statutes”
or “by initiating civil commitment procedures against another person.” Bass,
180 F.3d at 242. The complaint’s vague and conclusory allegation that the
defendants acted “in concert and under the color of authority” to violate the
plaintiffs’ constitutional rights is insufficient to survive a motion to dismiss.




                                        5
                                  No. 08-40395

Accordingly, the district court correctly dismissed the plaintiffs’ claims against
the non-judicial defendants.
      We also agree with the district court that the complaint failed to state a
conspiracy claim under 42 U.S.C. § 1985.         “In this circuit, we require an
allegation of a race-based conspiracy to present a claim under § 1985(3).”
Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 271 (5th Cir. 2001)
(internal quotation omitted). The complaint is entirely devoid of any factual
allegations that racial considerations motivated the defendants’ conduct.
      Finally, also before this court is a motion by Burgess and Dowd requesting
that the plaintiffs be sanctioned for bringing a frivolous appeal pursuant to Rule
38 of the Federal Rules of Appellate Procedure. While the plaintiffs’ argument
that Burgess and Dowd are not entitled to judicial immunity is without merit
and arguably frivolous, we decline to impose sanctions under Rule 38 at this
time. However, we take this opportunity to warn the plaintiffs that future
frivolous appeals in this court—including any frivolous petitions for
rehearing—will result in the imposition of sanctions.
                               IV. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.
      SANCTIONS WARNING ISSUED.




                                        6
