                     UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                             __________________

                                No. 95-50461
                              Summary Calendar
                             __________________



     Kent Anthony Krueger,

                                            Plaintiff-Appellant,

                                   versus

     Bill Reimer, District Attorney; and Fred Moore,
     Judge, Comal County,

                                            Defendants-Appellees.

            ______________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
         ______________________________________________
                       (September 26, 1995)



Before KING, SMITH and BENAVIDES, Circuit Judges.

Per Curiam:

     Kent    Anthony   Krueger    appeals   from       the   district    court's

dismissal as frivolous of his 42 U.S.C. § 1983 claim against Comal

County, Bill Reimer, District Attorney of Comal County, and Fred

Moore, a Texas state district judge.        We will affirm.



                               I. BACKGROUND

     Krueger,    a   Texas   prisoner,   filed     a    civil   rights    action

pursuant to 42 U.S.C. § 1983 against Reimer and Moore, alleging
that they conspired to deprive him of his right to appeal his

conviction by denying his request to proceed in forma pauperis on

appeal and by denying his right to self-representation.                 He also

asserted that Comal County was liable because Reimer and Moore

acted as final policy makers for Comal County.                  The magistrate

judge recommended that Krueger's claims should be dismissed as

frivolous because they lacked an arguable basis in law or fact and

that the   district   court    should     warn   Krueger   of    the   possible

imposition of sanctions for filing future frivolous actions.                The

district   court   adopted    the   magistrate's     recommendations,       and

dismissed Krueger's suit with prejudice.           Krueger filed a timely

appeal.



                                    II.

      Dismissal of an in forma pauperis petition under 28 U.S.C. §

1915(d) is permissible if the district court is "satisfied that the

action is frivolous or malicious."         Graves v. Hampton, 1 F.3d 315,

317 (5th Cir. 1993).         An action is frivolous if it lacks an

arguable basis either in law or in fact.          Neitzke v. Williams, 490

U.S. 319, 325, 109 S. Ct. 1827, 1831-32 (1989).                   We review a

district court's section 1915(d) dismissal under an abuse of

discretion standard.     Denton v. Hernandez,              U.S.        , 112 S.

Ct. 1728, 1734 (1992).    We have reviewed the record, and we affirm

the district court's dismissal for the following reasons:

(1)   The Supreme Court has held that, in order to recover damages

      for harm caused by actions whose unlawfulness would render a

      conviction or sentence invalid, a section 1983 plaintiff must

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      prove that the conviction has been reversed on direct appeal,

      expunged by executive order, declared invalid by a state

      tribunal authorized to make such a determination, or called

      into question by a federal court's issuance of a writ of

      habeas corpus.      Heck v. Humphrey,               U.S.      , 114 S. Ct.

      2364, 2372 (1994).         To the extent that Krueger's claims, if

      successful, would necessarily imply that his state criminal

      conviction is invalid, they are not cognizable under section

      1983 because Krueger has not proved that his conviction and

      sentence for burglary have been invalidated.

(2)   Reimer and Judge Moore are absolutely immune from liability in

      Krueger's section 1983 suit.             Despite the applicability of

      Heck, a district court may appropriately consider the possible

      applicability of the doctrine of absolute immunity as a

      threshold matter in making a section 1915(d) determination.

      See Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).

      Reimer, as a district attorney, is absolutely immune in a

      civil rights suit for any actions taken pursuant to his role

      as State advocate in preparing for the initiation of judicial

      proceedings or for trial.          Id. at 285.         Similarly, judicial

      officers enjoy absolute immunity from liability for damages

      for   acts     performed    in    the    exercise      of   their   judicial

      functions. Id. at 284.           Krueger's claims against Reimer and

      Judge Moore concern their actions during Krueger's criminal

      trial   and,    therefore,       are    covered   by    the   doctrines   of

      prosecutorial and judicial immunity.

(4)   Krueger's allegation that Comal County is liable because

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      Reimer and Moore acted as final policy makers for the County

      is without foundation in law or in fact.       In order to recover

      a judgment against a local governmental entity under section

      1983, Krueger must establish that he sustained a deprivation

      of his constitutional rights as a result of some official

      policy, practice, or custom of the governmental entity.

      Monell v. Department of Social Servs. of the City of New York,

      436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978).             A local

      judge acting in his or her judicial capacity is not considered

      a local government official whose actions are attributable to

      the county. See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.

      1992); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.)          cert.

      denied, 474 U.S. 1007 (1985).

           If   a   district   attorney    exceeds   the    scope    of     his

      prosecutorial duties, a county may be held liable under

      certain limited circumstances.       See Turner v. Upton County,

      915 F.2d 133, 137-38 (5th Cir. 1990), cert. denied, 498 U.S.

      1069 (1991) (county may be held liable for the acts of

      district attorney who entered into conspiracy with county

      sheriff, the ultimate repository of law enforcement power in

      the county). Krueger has made no specific factual allegations

      that either Reimer or Judge Moore acted outside the scope of

      his prosecutorial or judicial functions.       Because both Reimer

      and Judge Moore were acting in their official capacities in

      Krueger's criminal trial, their actions do not constitute the

      official policy of Comal County.

(5)   Krueger   also   contends   that   the   district    court    erred   in

                                    4
     dismissing his claims because it did not review the fifty-two

     exhibits    that    Krueger   filed     with   his    objections    to   the

     magistrate judge's report. Our review of the record indicates

     that the district court conducted a de novo review of the

     magistrate's       report   and   the   record,      including    Krueger's

     exhibits,    before     dismissing       the   section     1983     action.

     Krueger's contention that the trial court failed to review the

     exhibits lacks merit.

     The district court did not abuse its discretion in concluding

that Krueger claims have no arguable basis in law or in fact.

Accordingly, we affirm the district court's dismissal of his

section 1983 claim as frivolous.




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