     Case: 09-30701   Document: 00511036631   Page: 1   Date Filed: 02/26/2010




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

                                                FILED
                                                              February 26, 2010
                                No. 09-30701
                              Summary Calendar              Charles R. Fulbruge III
                                                                    Clerk

JOHNNY RAY LUNA; LOUIE MAX SCHEXNAYDER, JR.; ERRAN GEORGE
EVANS,

                                           Plaintiffs-Appellants

v.

JUDGE THOMAS J. KLIEBERT, Louisiana Fifth Circuit Court of Appeals
Judge and Estate; EDWARD A. DUFRENSE, JR., Louisiana Fifth Circuit Court
of Appeals Judge and Estate; JUDGE H. CHARLES GAUDIN, Louisiana Fifth
Circuit Court of Appeals Judge and Estate; JUDGE CLARENCE E. MCMANUS,
Louisiana Fifth Circuit Court of Appeals Judge and Estate; JUDGE CHARLES
GRISBAUM, Louisiana Fifth Circuit Court of Appeals Judge and Estate;
THOMAS C. WICKER, Louisiana Fifth Circuit Court of Appeals Judge and
Estate; JUDGE SOL GOTHARD, Louisiana Fifth Circuit Court of Appeals Judge
and Estate; JUDGE FRED S. BOWES, Louisiana Fifth Circuit Court of Appeals
Judge and Estate; GREG G. GUIDRY, Louisiana Fifth Circuit Court of Appeals
Judge and Estate; JUDGE WALTER J. ROTHSCHILD, Louisiana Fifth Circuit
Court of Appeals Judge and Estate; JUDGE THOMAS F. DALEY, Louisiana
Fifth Circuit Court of Appeals Judge and Estate; JUDGE JAMES L.
CANNELLA, Louisiana Fifth Circuit Court of Appeals Judge and Estate,
JUDGE MARION F. EDWARDS, Louisiana Fifth Circuit Court of Appeals Judge
and Estate; JUDGE FREDERICKA H. WICKER, Louisiana Fifth Circuit Court
of Appeals Judge and Estate; SUSAN M. CHEHARDY, Louisiana Fifth Circuit
Court of Appeals Judge and Estate; PETER FRITZGERALD, Clerk of the
Louisiana Fifth Circuit Court of Appeals and Estate; JERROLD B. PETERSON,
Central Staff Director of the Louisiana Fifth Circuit Court of Appeals Judge and
Estate,

                                           Defendants-Appellees
   Case: 09-30701       Document: 00511036631 Page: 2             Date Filed: 02/26/2010
                                    No. 09-30701



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CV-3853


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Johnny Ray Luna, Louisiana prisoner # 385808, Louie Max Schexnayder,
Jr., Louisiana prisoner # 108097, and Erran George Evans, Louisiana prisoner
# 232497, contest the dismissal of their 42 U.S.C. § 1983 civil-rights complaint
as frivolous, for failure to state a claim on which relief may be granted, and/or
for seeking monetary damages against defendants who are immune from such
relief. Named as defendants were present and former judges and other court
employees of the Louisiana Fifth Circuit Court of Appeal. Appellants claimed
that, from 8 February 1994 to 21 May 2007, that court assigned a single judge
to review all pro se writ applications in contravention of the State’s constitution,
which requires a court of appeal to “sit in panels of at least three judges”. L A.
C ONST. art. V, § 8(A); see also Severin v. Parish of Jefferson, No. 09-30395, 2009
WL 4885161, at *1 (5th Cir. 16 Dec. 2009).                 Because the complaint was
dismissed as frivolous under 28 U.S.C. § 1915A and § 1915(e) and for failure to
state a claim, our review is de novo. See Velasquez v. Woods, 329 F.3d 420, 421
(5th Cir. 2003).
       The district court concluded:           to the extent appellants were suing
defendants in their official capacities for monetary damages, those claims were
barred by the Eleventh Amendment. Appellants do not address this ruling.




       *
         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.

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   Case: 09-30701    Document: 00511036631 Page: 3               Date Filed: 02/26/2010
                                 No. 09-30701

Accordingly, those monetary claims are abandoned. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      In addition, the district court determined correctly that the judges are
entitled to absolute immunity in their individual capacities.                 See Mays v.
Sudderth, 97 F.3d 107, 110-11 (5th Cir. 1996); Severin, 2009 WL 4885161, at *3.
Appellants fail to address the basis for this dismissal of the individual-capacity
claims against the remaining defendants. Accordingly, those claims are also
abandoned. See Brinkmann, 813 F.2d at 748.
      Appellants present no coherent challenge to the district court’s ruling that
they were not entitled to declaratory relief. Therefore, they have also abandoned
that claim. See id. Nor have they shown that the district court abused its
discretion in denying their request for injunctive relief. See White v. Carlucci,
862 F.2d 1209, 1211 (5th Cir. 1989).                 Any perceived fear of future
implementation of the prior writ procedure that Appellants may have harbored
is speculative and insufficient to show a substantial threat of irreparable harm.
See Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).
      Further, the district court did not abuse its discretion by dismissing
Appellants’ state-law claims, because all of the federal claims were properly
dismissed. See Batiste v. Island Records, Inc., 179 F.3d 217, 226-27 (5th Cir.
1999); 28 U.S.C. § 1367(c)(3).
      Although Appellants maintain the court erred in failing to conduct a
Spears hearing and in failing to appoint counsel, Appellants do not state what
additional facts would have been elicited. See Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985), abrogated by Neitzke v. Williams, 490 U.S. 319 (1989).
Appellants,   therefore,   have   failed       to   show   the    requisite    exceptional
circumstances for warranting appointment of counsel. See Eason v. Thaler, 14
F.3d 8, 9-10 (5th Cir. 1994); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
      The district court’s dismissal of Appellants’ complaint as frivolous and for
failure to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g). See

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  Case: 09-30701    Document: 00511036631 Page: 4      Date Filed: 02/26/2010
                                No. 09-30701

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Appellants are
warned that, if they accumulate three strikes under § 1915(g), they will not be
allowed to proceed in forma pauperis in any civil action or appeal, unless they
are under imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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