     Case: 11-20600       Document: 00512050187         Page: 1     Date Filed: 11/12/2012




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

                                                                            FILED
                                                                        November 12, 2012
                                     No. 11-20600
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KELVIN WASHINGTON,

                                                  Plaintiff-Appellant

v.

AMANDA BOLIN, Fort Bend Assistant District Attorney; JUDGE THOMAS R.
CULVER, III, 240th Criminal Court; JOSH WEISS, Harris County Assistant
District Attorney; JUDGE SHAWNA REAGIN, 176th Criminal Court; PEGGY
BIJOU, Fort Bend County Community Supervision and Corrections Department
Pretrial; CHRIS WOLFF, Supervisor, Fort Bend County Community Supervision
and Corrections Department Pretrial,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:11-CV-781


Before JOLLY, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Kelvin Washington, Texas prisoner # 641320, pro se and in forma pauperis
(IFP), appeals the magistrate judge’s (MJ) dismissal of his civil complaint
pursuant to Federal Rule of Civil Procedure 12(b). We review de novo 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                       No. 11-20600

dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and for
failure to state a claim under Rule 12(b)(6). Ballew v. Continental Airlines, Inc.,
668 F.3d 777, 781 (5th Cir. 2012); Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir.
2011).
      The MJ granted the defendants’ motions to dismiss on the grounds that
(1) Washington’s claims for injunctive and declaratory relief should not be
addressed based on the Younger1 abstention doctrine, (2) Eleventh Amendment
immunity barred Washington’s claims against Officers Bijou and Wolff and
against     Assistant     District    Attorneys    (ADAs)   Bolin   and   Reiss,   and
(3) Washington’s claims against Judges Culver and Reagin were barred by
absolute judicial immunity. Washington has inadequately briefed any challenge
to the application of the Younger abstention doctrine to his claims for injunctive
and declaratory relief and has abandoned on appeal any challenge to the MJ’s
reliance on the doctrine. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993).
      Washington challenges the MJ’s determination that Eleventh Amendment
immunity barred his claims against Officers Bijou and Wolff and against ADAs
Bolin and Reiss. Official capacity suits are treated the same as suits against the
state, and Eleventh Amendment immunity applies to state officials when sued
in their official capacities. See Hafer v. Melo, 502 U.S. 21, 26 (1991); McKinley
v. Abbot, 643 F.3d 403, 406 (5th Cir.), cert. denied, 132 S. Ct. 825 (2011). The MJ
held that Eleventh Amendment immunity extended to Washington’s claims for
monetary damages against Officers Bijou and Wolff in their official capacities.
Washington has not argued that the district court erred by failing to address
specifically whether the Fort Bend County Community Supervision and
Corrections Department was a state or local entity for purposes of applying


      1
          Younger v. Harris, 401 U.S. 37 (1971).

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Eleventh Amendment immunity. See Clark v. Tarrant County, Texas, 798 F.2d
736, 744 (5th Cir. 1986) (observing that in determining whether entity was
entitled to Eleventh Amendment immunity, court must examine the entity and
its powers and characteristics under state law). We may affirm the MJ’s
decision on any basis supported by the record. See Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999). In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the
Supreme Court held that “in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on direct
appeal” or otherwise invalidated by official action. (internal footnote omitted).
To grant Washington the relief he seeks would imply the invalidity of his
imprisonment or conviction; thus, his claims for damages are Heck-barred and
not cognizable in § 1983. See Heck, 512 U.S. at 487.
      District attorneys and assistant district attorneys in Texas are agents of
the state when acting in their prosecutorial capacities. See, e.g., Esteves v.
Brock, 106 F.3d 674, 677-78 (5th Cir. 1997). As the MJ reasoned, Washington
complained of acts taken by the ADAs in their prosecutorial capacities.
Washington has not shown error in the MJ’s dismissal of his claims for damages
against ADAs Bolin and Reiss as barred by the Eleventh Amendment. See
Esteves, 106 F.3d at 677-78.
      Washington argues, in essence, that because Judges Reagin and Culver
violated his civil rights, absolute judicial immunity should not have barred his
claims. Judges have absolute immunity for all acts performed in the exercise of
judicial functions, no matter the alleged magnitude or mendacity of the acts.
Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). This immunity may be
overcome only by showing that the acts were nonjudicial or were taken in the
complete absence of jurisdiction. Id.; Mays v. Sudderth, 97 F.3d 107, 110-11 (5th
Cir. 1996). Because Washington has alleged no facts that would support a

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finding that the judges he sued took any actions outside the court’s jurisdiction
or that their acts were nonjudicial, Washington’s claims against Judges Reagin
and Culver were properly dismissed on grounds of absolute judicial immunity.
See Boyd, 31 F.3d at 284-85.
      Washington’s request that we order a stay of the proceedings pending
exhaustion of state remedies is DENIED.
      To the extent that Washington raises on appeal new claims challenging
the conditions of his confinement, those claims will not be addressed. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      The judgment is AFFIRMED.
      This court’s affirmance of the MJ’s dismissal of Washington’s complaint
counts as a strike for purposes of 28 U.S.C. § 1915(g).        See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Washington is cautioned that if
he accumulates three strikes, he will no longer be allowed to proceed IFP in any
civil action or appeal filed while he is detained or incarcerated in any facility
unless he is in imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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