     Case: 10-20484 Document: 00511498780 Page: 1 Date Filed: 06/06/2011




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

                                                 FILED
                                                                            June 6, 2011
                                     No. 10-20484
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DAVID RODRIGUEZ,

                                                   Plaintiff-Appellant

v.

VERNON L. LEWIS, Assistant United States Attorney; ABRAN MARTINEZ,
Assistant United States Attorney,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-3235


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David Rodriguez, federal prisoner # 56264-179, appeals the district court’s
dismissal of his civil rights complaint, which he filed pursuant to Bivens v. Six
Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for
failure to state a claim upon which relief can be granted pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.                He argues that the




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-20484 Document: 00511498780 Page: 2 Date Filed: 06/06/2011

                                 No. 10-20484

defendants are not entitled to absolute immunity and that he is entitled to
recover punitive damages.
      In reviewing a dismissal for failure to state a claim, we “construe the
complaint in the light most favorable to the plaintiff and draw all reasonable
inferences in favor of the plaintiff.”   Elsensohn v. Saint Tammany Parish
Sheriff’s Office, 530 F.3d 368, 371-72 (5th Cir. 2008). “[C]onclusory allegations
or legal conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d
278, 284 (5th Cir. 1993).
      A prosecutor is absolutely immune from suit for any acts taken within the
scope of his prosecutorial role. Imbler v. Pachtman, 424 U.S. 409, 430 (1976)
(42 U.S.C. § 1983 case involving state prosecutors); Rykers v. Alford, 832 F.2d
895, 897 (5th Cir. 1987) (Bivens case involving federal prosecutors). Rodriguez
claims that Assistant United States Attorney Martinez is not entitled to absolute
immunity because he knowingly breached the plea agreement when he
vigorously argued in favor of various sentencing enhancements during
Rodriguez’s sentencing hearing for the sole purpose of retaliating against
Rodriguez for filing a complaint against him with the State Bar of Texas.
Because Martinez was acting within the scope of his employment as a prosecutor
during the sentencing hearing, he enjoys absolute immunity from Bivens
liability. See Rykers, 832 F.2d at 897. Martinez remains entitled to absolute
immunity even if the acted “maliciously, wantonly or negligently.” Morrison v.
City of Baton Rouge, 761 F.2d 242, 248 (5th Cir.1985)
      Because Martinez is absolutely immune from suit, he is immune from
damages as well. See Disraeli v. Rotunda, 489 F.3d 628, 631 (5th Cir. 2007)
(noting that absolute immunity denies all remedies to an individual); Hulsey v.
Owens, 63 F.3d 354, 356 (5th Cir. 1994) (holding that absolute immunity is
immunity from suit rather than simply a defense against liability).



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                                  No. 10-20484

      Rodriguez also claims that Assistant United States Attorney Lewis, who
represented Martinez during the proceedings before the State Bar of Texas, is
not entitled to absolute immunity because he failed to investigate the possibility
of retaliation by Martinez, he failed to report Martinez’s retaliatory conduct, and
he allowed Martinez to violate Rodriguez’s constitutional rights during the
sentencing hearing. Because Rodriguez has failed to allege that Lewis violated
his constitutional rights, Rodriguez’s claims against Lewis do not support a
Bivens action. See Boyd v. Driver, 579 F.3d 513, 515 (5th Cir. 2009) (dismissing
claim in Bivens action for malicious prosecution).
      The judgment of the district court is AFFIRMED.




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