     Case: 10-60662     Document: 00511792705         Page: 1     Date Filed: 03/19/2012




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

                                                                            FILED
                                                                          March 19, 2012
                                     No. 10-60662
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAMES H. STERN,

                                                  Plaintiff-Appellant

v.

CHRISTOPHER EPPS,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:08-CV-33


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        James H. Stern, Mississippi prisoner # 130001, appeals the judgment in
his 42 U.S.C. § 1983 lawsuit. We deny Stern’s motion for oral argument, see
FED. R. APP. P. 34(a)(2)(C), and affirm the judgment. Also, because the record
is sufficient to address Stern’s arguments, we deny his request for a transcript
of the March 17, 2010 pretrial conference.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                        I.
      Stern filed a 42 U.S.C. § 1983 lawsuit against numerous named and
unnamed defendants. The named defendants included, among others, the
Mississippi Department of Corrections (MDOC), MDOC Commissioner
Christopher Epps, Mississippi Attorney General Jim Hood, Deputy Attorney
General Myrick Jackson, Deputy Attorney General Grant Hedgepeth, and Hinds
County Circuit Clerk Barbara Dunn. In his complaint, Stern stated that these
named defendants were being sued in their “official and supervisory” capacities.
Stern alleged, among other claims, (1) that he had been injured by exposure to
environmental tobacco smoke in an MDOC facility; (2) that the withdrawal of
funds from his and other prisoners’ accounts for purchases they did not make
constituted fraud, embezzlement, and money laundering; (3) that Hood, Jackson,
and Hedgepeth committed perjury and obstruction of justice in Stern’s criminal
case; and (4) that Dunn had refused to file a court document and to provide him
with copies of court documents. He alleged that his personal injuries consisted
of migraine headaches, throat pain, chest pain, eye pain, lack of sleep, heart
problems, and emphysema.
      In subsequent pleadings, Stern alleged that a prison barber cut him with
clippers during an unsanitary haircut, causing Stern to bleed and exposing him
to AIDS, hepatitis, and other infections, and that he contracted an “infectious
disease from haircuts while housed at a facility of MDOC.” He sought $1 million
in actual damages for his “personal injury claim,” $10 million for pain and
suffering, $20 million in punitive damages, injunctive relief, and “all percentages
as described under the Whistle Blower law” for his allegations regarding fraud,
money laundering, and embezzlement.
      The district court found that the State of Mississippi and its agencies are
not persons within the meaning of § 1983 and dismissed Stern’s claims against
the MDOC and other state agencies accordingly.            The district court also
dismissed the claims against Hood, Jackson, and Hedgepeth, ruling that judicial

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officers, including prosecutors, “are entitled to absolute immunity for claims for
damages arising out of acts performed in the exercise of their judicial functions”
and that witnesses “are entitled to absolute immunity from civil liability.” Order
at 3, Stern v. Epps, No. 2:08cv33-KS-MTP (S.D. Miss. Aug. 19, 2008) (citations
omitted). The district court found that Stern’s claim against Dunn was barred
under Heck v. Humphrey, 512 U.S. 477 (1994) The district court construed
Stern’s whistleblower claims under the federal Whistleblower Protection Act, 5
U.S.C. § 2302(b)(8), and dismissed the claims on the basis that Stern was not an
employee of a government agency. Ultimately, the district court dismissed all of
the remaining counts, save Stern’s Eighth Amendment claim against Epps
regarding exposure to environmental tobacco smoke. After a trial on this
remaining claim, a jury found for Epps. The district court denied Stern’s motion
for judgment as a matter of law or a new trial. Stern timely filed a notice of
appeal, and the district court granted him leave to appeal in forma pauperis.
                                       II.
      On appeal, Stern raises a number of challenges, none of which succeeds.
We discuss each of Stern’s arguments in turn.
      First, although Stern contends that the district court erred in denying his
motion to disqualify the Mississippi Attorney General, Stern’s allegations in a
civil lawsuit for damages did not charge the Attorney General and other public
officials with a crime within the meaning of Mississippi Code § 97-11-3. A
similar phrase – “charges another with a crime” – appears in Mississippi Code
§ 99-1-11 and has been interpreted to refer to criminal prosecutions. See Town
of Lumberton v. Peyton, 109 So. 740, 740 (Miss. 1926) (construing MISS. CODE §
965 (1906) (recodified at § 99-1-11)). In addition, Mississippi law grants the
Attorney General “the sole power” to defend a lawsuit of state-wide interest “on
behalf of a state agency,” MISS. CODE § 7-5-1, and requires him to defend the
State and public officials in civil lawsuits, MISS. CODE § 7-5-39. The federal
statutes cited by Stern—42 U.S.C. § 1997a and § 1997c—are inapposite.

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Moreover, Stern was not a client of the Mississippi Attorney General, see Baker
Donelson Bearman Caldwell & Berkowitz, P.C. v. Seay, 42 So. 3d 474, 485 (Miss.
2010), and he fails to show that the Attorney General’s representation
constituted a conflict of interest or presented any other ground for
disqualification. The district court did not abuse its discretion in denying the
motion. See FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1311 (5th Cir. 1995).
      Second, notwithstanding Stern’s argument to the contrary, the district
court properly dismissed the claims against Attorney General Jim Hood and
Deputy Attorneys General Myrick Jackson and Grant Hedgepeth for perjury and
obstruction of justice in his state criminal trial on the ground that these
defendants were entitled to absolute immunity as judicial officers and as
witnesses. See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Stern also
argues that these defendants committed perjury, obstruction of justice, and
“altering [of] records” in his 28 U.S.C. § 2254 habeas corpus proceeding, but he
did not raise this claim in the district court. We will not consider it on appeal.
See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d
307, 316-17 (5th Cir. 2000).
      In addition, the district court properly dismissed Stern’s claim that Hinds
County Circuit Clerk Barbara Dunn’s actions caused him to enter a guilty plea
“by force.” To the extent that Stern seeks damages, his claim is barred by Heck
v. Humphrey, 512 U.S. at 486-87, because it necessarily implies the invalidity
of his conviction or sentence. To the extent that he is seeking release from
confinement, his claim is in the nature of a § 2254 habeas corpus proceeding.
See Cook v. Tex. Dep’t of Crim. Justice Transitional Planning Dep’t, 37 F.3d 166,
168 (5th Cir. 1994). However, he has already sought § 2254 relief in a separate
proceeding, and the district court dismissed that case. Stern v. State, No. 3:09-
CV-335 (S.D. Miss. Mar. 31, 2010). Stern has not moved for authorization to file
a successive § 2254 application as required by 28 U.S.C. § 2244(b)(3)(A).



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      Third, Stern challenges the dismissal of his whistleblower claims. In his
complaint, Stern did not state whether he sought relief under the federal
Whistleblower Protection Act (WPA), Mississippi’s whistleblower laws, or both.
The district court construed Stern’s whistleblower claim as seeking relief under
the federal act, and Stern does not dispute that ruling. Although pro se briefs
are afforded liberal construction, even pro se litigants must brief arguments in
order to preserve them. Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (per
curiam). Therefore, Stern has abandoned any challenge to the district court’s
construction of his whistleblower claim. See id. The court properly denied the
claim because Stern was not an employee of the federal government covered by
the WPA. See 5 U.S.C. §§ 2105, 2302(b)(8).
      Fourth, Stern challenges the denial of his motion to name additional
defendants. The district court found that he sought to vindicate his rights only
under various state statutes—rights that are not protected by § 1983. See
Woodard v. Andrus, 419 F.3d 348, 353 (5th Cir. 2005). Stern does not dispute
that finding on appeal. See Mapes, 541 F.3d at 584. The requested amendments
were futile, and the district court thus did not abuse its discretion in denying
Stern’s motion. See Wright v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005).
      Fifth, Stern argues that the district court erred in dismissing his
unsanitary haircut claim under 28 U.S.C. § 1915(e)(2)(B). He argues that the
barbering practices in Mississippi Department of Corrections (MDOC) facilities
do not comply with the various state laws and regulations. “However, a violation
of a state statute alone is not cognizable under § 1983 because § 1983 is only a
remedy for violations of federal statutory and constitutional rights.” Woodard,
419 F.3d at 353. Although Stern asserts that the MDOC barbering methods are
“unconstitutional,” he does not brief any argument or cite any authorities (other
than Mississippi statutes) in support of this conclusory assertion, and he does
not contest the district court’s finding that the defendants’ conduct was at most
negligent and did not amount to a constitutional violation. He has abandoned

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this issue. See Mapes, 541 F.3d at 584. Stern’s discussion of his barbering
claims includes new allegations of discrimination that we will not consider for
the first time on appeal. See Stewart Glass, 200 F.3d at 316-17.
       In addition, Stern challenges the § 1915(e)(2)(B)(ii) dismissal of his claims
against MDOC Commissioner Christopher Epps for fraud, embezzlement, and
money laundering based on improper charges to Stern’s prisoner account for
pants that he did not purchase. He has abandoned any challenge to the
dismissal of similar claims against the companies that operated the prison
commissary by failing to contest it. See Mapes, 541 F.3d at 584. As for his claim
against Epps, the dismissal was proper. Embezzlement and money laundering
are crimes under Mississippi law, not private causes of action. See MISS. CODE
§§ 97-23-19 (embezzlement), 97-23-101 (money laundering). Stern did not state
a claim for fraud because he did not allege that he suffered any harm as a
consequence of his reliance on a false representation. See State v. Bayer Corp.,
32 So. 3d 496, 501 (Miss. 2010).
       Stern contends that for Epps to “deprive him of his money rises to a
constitutional level.” To plead a claim for relief under § 1983, “the plaintiff must
allege that some person has deprived him of a federal right” and “that the person
who has deprived him of that right acted under color of state or territorial law.”
Gomez v. Toledo, 446 U.S. 635, 640 (1980). Stern failed to state a claim for relief
because he did not allege that Epps was personally involved in the money being
improperly deducted from his prisoner account. See Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (explaining that facts that are “merely consistent with” a
defendant’s liability fail to state a claim for relief (internal quotation marks and
citation omitted)); see also Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002)
(explaining that § 1983 does not create supervisory or respondeat superior
liability).
       Sixth, the MJ did not err in limiting discovery in Stern’s case. See Wilson
v. Barrientos, 926 F.2d 480, 482-83 (5th Cir. 1991).

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      Seventh, Stern contends that the district court violated his rights by
instructing the jury at his trial on his environmental tobacco smoke (ETS) claim
to consider whether Epps was liable in his personal capacity instead of his
official capacity.1 The Eleventh Amendment bars official-capacity claims for
money damages against such prison officials. Oliver v. Scott, 276 F.3d at 742.
Also, § 1983 “does not create supervisory or respondeat superior liability.” Id.
Accordingly, if the district court had not construed the ETS claim as it did, the
claim would not have gone to trial in the first place. See FED. R. CIV. P. 61
(harmless error rule).
      Eighth, with respect to Stern’s challenge to a pretrial order entered
without his consent, any error was harmless. See FED. R. CIV. P. 61.
      Finally, Stern contends that someone illegally recorded phone calls with
his “advisory attorney” when Stern called him from jail. He did not raise this
claim in the district court, and we will not consider it on appeal. See Stewart
Glass, 200 F.3d at 316-17.
      By failing to brief any argument regarding other claims that he raised in
the district court, Stern has abandoned them. See Mapes, 541 F.3d at 584.
                                      III.
      Having rejected all of Stern’s arguments, we affirm the judgment of the
district court.
      MOTION for oral argument DENIED; JUDGMENT AFFIRMED.




      1
     In his brief, Stern raises this issue in both “ISSUE NUMBER 7” and “ISSUE
NUMBER 9.”

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