     Case: 09-40666     Document: 00511045113          Page: 1    Date Filed: 03/08/2010




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

                                                  FILED
                                                                            March 8, 2010
                                     No. 09-40666
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

CHARLES W. BURNETT,

                                                   Plaintiff-Appellant

v.

W.E. DENMAN, The Honorable Judge; 412TH DISTRICT COURT OF
BRAZORIA COUNTY, TEXAS; JERRY DEERE, District Clerk of Brazoria
County, Texas,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:09-CV-71


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Charles W. Burnett, Texas prisoner # 1476498, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 civil rights complaint as frivolous. Burnett,
proceeding pro se and in forma pauperis (IFP), filed his § 1983 complaint against
Judge W.E. Denman and Jerry Deere, alleging that they violated his state and
federal rights when Judge Denman dismissed with prejudice a malpractice



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40666

action Denman had filed against his attorney. Burnett sought money damages.
The district court dismissed Burnett’s action as frivolous, citing 28 U.S.C.
§ 1915(e)(2)(B)(i). The district court concluded that Judge Denman and Deere
were immune from suit under the principles of absolute judicial immunity and
qualified immunity, respectively.
      A district court must sua sponte dismiss a prisoner’s IFP § 1983 complaint
if the action is malicious or frivolous, fails to state a claim, or seeks monetary
relief from a defendant who is immune. § 1915(e)(2)(B). We review a district
court’s dismissal as frivolous for abuse of discretion. Geiger v. Jowers, 404 F.3d
371, 373 (5th Cir. 2005).
      Burnett challenges the district court’s dismissal of his claims against
Judge Denman on the grounds of absolute judicial immunity.            Judges are
entitled to absolute immunity from damages in § 1983 actions arising out of all
acts performed in the exercise of their judicial functions. Krueger v. Reimer, 66
F.3d 75, 77 (5th Cir. 1995). A judge is not deprived of immunity because the
action he took was in error, was done maliciously, or was in excess of his
authority. Mays v. Sudderth, 97 F.3d 107, 110-11 (5th Cir. 1996). However, a
judge has no immunity for actions taken outside of his judicial capacity, or for
actions that are judicial in nature, but occur in the complete absence of all
jurisdiction. Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993).
      Judge Denman dismissed Burnett’s malpractice suit with prejudice after
finding that Burnett had failed to state a claim for relief. Thus, Judge Denman
was entitled to absolute immunity. See Krueger, 66 F.3d at 77; Malina, 994 F.2d
at 1124. Burnett’s claims of legal error and bias on the part of Judge Denman
are insufficient to overcome the immunity afforded Judge Denman. See Mays,
97 F.3d at 110. Accordingly, the district court did not abuse its discretion when
it dismissed as frivolous Burnett’s § 1983 claims against Judge Denman.
      Burnett also challenges the district court’s dismissal of his claims against
Deere on the grounds of qualified immunity.        Court clerks “have absolute

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                                No. 09-40666

immunity . . . for damages arising from acts they are specifically required to do
under court order or at a judge’s discretion.” Tarter v. Hury, 646 F.2d 1010, 1013
(5th Cir. 1981). Court clerks enjoy qualified immunity for those routine duties
not explicitly commanded by either court decree or judicial instruction. Id. The
record reflects that Deere informed Burnett that Judge Denman had dismissed
Burnett’s malpractice suit. Because Deere’s actions were ministerial, he was
entitled to qualified immunity. Id.
      Burnett also alleges that Deere changed the filing date on the malpractice
suit. Burnett contends that Deere’s actions constituted a fraud upon the court
and violated his right of access to the courts. Because Burnett did not allege in
the district court that Deere committed a fraud on the court, this court need not
address his claim. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc.
Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). Burnett’s claim that Deere's
actions violated his right of access is unavailing because Burnett has not alleged
prejudice or actual injury. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996).
      Burnett is cautioned that the dismissal of his § 1983 suit by the district
court pursuant to § 1915(e)(2)(B)(i) and our dismissal of this appeal as frivolous
both count as strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
385-87 (5th Cir. 1996). Burnett is also cautioned that if he accumulates three
strikes under § 1915(g), he may not proceed 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).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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