                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-30733
                        Conference Calendar



EUGENE JARROW, On behalf of his minor Children, Dejuane
Walker, Eugene Walker, Dephen Walker,

                                    Plaintiff-Appellant,

versus

EDDIE J. JORDAN, JR., District Attorney for Orleans Parish;
CALVIN JOHNSON, Judge, Orleans Criminal District Court;
HARRY CONNICK, Ex-District Attorney for Orleans Parish;
MICHAEL CAPDEBOSCQ, Assistant District Attorney; DONNA R.
ANDRIEU, Assistant District Attorney; MICHAEL VITT, Attorney
at Law,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:04-CV-3120
                       --------------------

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Eugene Jarrow, Louisiana prisoner # 89912, appeals the

dismissal of his 42 U.S.C. § 1983 and 28 U.S.C. § 2254 claims,

which alleged that the defendants conspired to violate Jarrow’s

civil rights by seeking to retry his 1979 armed robbery charge




     *
       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this opinion should not be published and is not precedent except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.
                             No. 05-30733
                                  -2-

after it was determined in 2003 that his original guilty plea was

invalid pursuant to Boykin v. Alabama, 395 U.S. 238 (1969).

     Applying the de novo standard of review, we affirm the

dismissal of Jarrow’s § 1983 claims against Judge Calvin Johnson

and the district and assistant district attorneys on grounds of

absolute judicial and prosecutorial immunity.     See Dennis v.

Sparks, 449 U.S. 24, 27 (1980); Imbler v. Pachtman, 424 U.S. 409,

427-28 (1976).   We also affirm the dismissal of Jarrow’s § 1983

claims against private attorney Michael Vitt; Jarrow’s

allegations of a conspiracy among the defendants to violate his

civil rights are purely conclusional and therefore insufficient

to establish § 1983 liability for a private actor.     See Brinkmann

v. Johnston, 793 F.2d 111, 112 (5th Cir. 1986).     Given that none

of the defendants are subject to suit, we pretermit discussion of

the issues whether Jarrow had the requisite capacity to bring

suit on behalf of his minor children and whether the § 1983

claims were otherwise barred by Heck v. Humphrey, 512 U.S. 477,

486-87 (1994).

     Jarrow does not challenge the district court’s finding that

his § 2254 claims were subject to dismissal without prejudice for

failure to exhaust state court remedies.     As such, he has waived

review of the exhaustion issue.     See Hughes v. Johnson, 191 F.3d

607, 613 (5th Cir. 1999).

     Jarrow’s appeal lacks arguable merit and therefore is

dismissed as frivolous.     See 5TH CIR. R. 42.2; Howard v. King, 707
                           No. 05-30733
                                -3-

F.2d 215, 219-20 (5th Cir. 1983).   The district court’s dismissal

of the § 1983 claims as frivolous and our dismissal of this

appeal count as two strikes for purposes of 28 U.S.C. § 1915(g).

See Patton v. Jefferson Corr. Ctr., 136 F.3d 458, 463-64 (5th

Cir. 1998); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996).   Jarrow is cautioned that if he accumulates three strikes

under § 1915(g), he will not be able to proceed in forma pauperis

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.
