     Case: 15-30632      Document: 00513495699         Page: 1    Date Filed: 05/06/2016




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

                                      No. 15-30632                                FILED
                                                                               May 6, 2016
                                                                             Lyle W. Cayce
DANNON KEITH SELLERS,                                                             Clerk

                                                 Plaintiff-Appellant

v.

J. PHIL HANEY; RENEE LOUVIERE; ANGELA ODINET; CHESTER
CEDARS; RANDALL SERRETT; KEITH COMEAUX; FERNINAND
VALTEAU; DAVID WILLARD; ELIZABETH LONG; RICHARD SPEARS;
UNKNOWN JUDGE; JENNIFER HEBERT; WILBUR STILES,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:15-CV-270


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Dannon Keith Sellers, Louisiana prisoner # 556277, moves for leave to
proceed in forma pauperis (IFP) in this appeal of the dismissal of his 42 U.S.C.
§ 1983 complaint. The motion is a challenge to the district court’s certification
that the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 15-30632

      In his complaint, Sellers maintained that a police detective wrongfully
arrested him because she obtained an arrest warrant prior to the issuance of
the charging bill of information; according to Sellers, this timing reflects that
there was no probable cause supporting the arrest. He maintains that the lack
of probable cause renders his guilty plea invalid. Sellers argues that the
prosecutors involved in his case have allowed him to remain in unlawful
confinement, that the trial judge had wrongfully sentenced him, and that the
attorneys who had represented him failed to seek or obtain dismissal of the
charges. The district court dismissed the case as frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), concluding that to the extent
Sellers was seeking dismissal of his criminal charges, the claims sounded in
habeas corpus; that any request for monetary damages based on his
purportedly illegal detention and prosecution was barred by Heck v.
Humphrey, 512 U.S. 477 (1994); that the judicial and prosecutorial defendants
were absolutely immune from suit; and that the defense attorneys were not
state actors for § 1983 purposes. Sellers contends that his claims are not
frivolous because they have a basis in law, that the defendants are not immune
from suit because they violated his constitutional rights, and that the district
court had failed to take into account his request for a preliminary injunction.
      In the district court, Sellers contended that he was not challenging the
validity of his conviction or sentence but was instead disputing the processes
followed by the State in prosecuting him. But Sellers’s assertions do in fact
call into question the validity of the conviction, as he seeks dismissal of the bill
of information and immediate release. A state prisoner challenging the fact or
duration of his confinement who seeks an immediate or accelerated release
from confinement must seek habeas relief under 28 U.S.C. § 2254. See Preiser
v. Rodriguez, 411 U.S. 475, 487 (1973). Likewise, a prisoner alleging that he



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                                  No. 15-30632

is unconstitutionally imprisoned may not recover monetary damages until he
has shown that the conviction or sentence has been previously invalidated.
Heck, 512 U.S. at 486–87.
      The district court properly concluded that Sellers’s defense attorneys
were not state actors. See Polk Cnty. v. Dodson, 454 U.S. 312, 317-18 (1981).
Additionally, the court was correct in its ruling that the judicial and
prosecutorial defendants were absolutely immune from suit for actions taken
in the exercise of judicial functions or within the prosecutorial role of pursuing
charges. See Mireles v. Waco, 502 U.S. 9, 9-10 (1991); Imbler v. Pachtman, 424
U.S. 409, 430-31 (1976). Although such immunity does not bar requests for
equitable relief, see Chrissy F. by Medley v. Miss. Dep’t of Pub. Welfare, 925
F.2d 844, 849 (5th Cir. 1991), Sellers did not request any specific relief in his
request for a preliminary injunction. In his complaint, he asked for dismissal
of the bill of information and release from incarceration. Sellers has not shown
that he is likely to succeed on the merits of his claims relating to the dismissal
of the charging instrument or his release. See Preiser, 411 U.S. at 487; Byrum
v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). Thus, the district court did not
abuse its discretion in its implicit denial of an injunction. See Women’s Med.
Ctr. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001); Norman v. Apache Corp.,
19 F.3d 1017, 1021 (5th Cir. 1994).
      Sellers has not shown that the district court erred in dismissing his civil
rights complaint. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998); Black
v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). Thus, he has not established
that he will present a nonfrivolous issue on appeal. See Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for leave to proceed IFP
is DENIED, and the APPEAL IS DISMISSED as frivolous. See Baugh, 117
F.3d at 202 n.24; 5TH CIR. R. 42.2.



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                                  No. 15-30632

      This court previously imposed the sanction bar of § 1915(g) against
Sellers because he had accumulated three strikes. See Sellers v. Plattsmier,
___ F. App’x ___, 2015 WL 7785716, 1-2 (5th Cir. Dec. 3, 2015) (No. 15-30520)
(unpublished). In addition, the dismissal of this instant appeal counts as a
strike for § 1915(g) purposes. See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Sellers is therefore REMINDED that he is barred from
proceeding IFP in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).




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