     Case: 17-60245      Document: 00514591398         Page: 1    Date Filed: 08/08/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 17-60245                              FILED
                                  Summary Calendar                       August 8, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
DONALD KEITH SMITH,

                                                 Plaintiff-Appellant

v.

ANGEL MYERS; VICTOR CARMODY, JR.; KEVIN STEWART,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CV-356


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
       Donald Keith Smith, current federal prisoner # 15601-003 and former
Mississippi prisoner # 150025, appeals the district court’s dismissal of his in
forma pauperis (IFP) civil rights complaint against Jackson County Assistant
District Attorney Angel Myers, Victor Carmody, Jr., and Kevin Stewart. Smith
contends that the district court erred in sua sponte setting the case for trial
without affording him an opportunity to conduct discovery. He also contends


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60245

that the district court erred in dismissing his complaint for failure to state a
claim because the case had already been screened and set for trial.
      The district court was not required to allow Smith to conduct discovery
prior to dismissing his IFP complaint.        See 28 U.S.C. § 1915(e)(2)(B)(ii);
Southwestern Bell Tel., LP v. City of Houston, 529 F.3d 257, 263 (5th Cir. 2008).
Further, although § 1915(e)(2)(B) dismissals are often made sua sponte prior
to the issuance of process, Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir.
1991), the statute’s plain language permits the district court to dismiss the
case “at any time,” § 1915(e)(2).
      Smith does not challenge the district court’s reasons for dismissing his
42 U.S.C. §§ 1985(3) and 1986 claims against Myers.             These issues are
therefore abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). Instead, Smith contends that Myers was not
entitled to absolute prosecutorial immunity, that he was not afforded an
opportunity to elaborate on the immunity issues, and that Myers’s motion to
dismiss should have been treated as a motion for summary judgment.
      Contrary to Smith’s contention, he was afforded an opportunity to
address Myers’s absolute immunity defense, and the district court properly
construed Myers’s motion to dismiss as a motion for judgment on the pleadings
under Federal Rule of Civil Procedure 12(c). See Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.
1994). Further, because Myers’s alleged actions were “intimately associated
with the judicial phase of the criminal process,” the district court did not err in
concluding that she was entitled to absolute prosecutorial immunity from suit
for damages under 42 U.S.C. § 1983. Loupe v. O’Bannon, 824 F.3d 534, 539
(5th Cir. 2016) (internal quotation marks and citation omitted); see also
Humble v. Foreman, 563 F.2d 780, 781 (5th Cir. 1977), overruled on other



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                                 No. 17-60245

grounds by Sparks v. Duval Cnty. Ranch Co., Inc., 604 F.2d 976 (5th Cir. 1979)
(en banc).
      Finally, Smith challenges the district court’s dismissal without prejudice
of his §§ 1983, 1985(3), and 1986 claims against Stewart and Carmody. He
argues that his allegations were sufficient to state a cognizable conspiracy
claim and that § 1985(3) is not limited to race-based conspiracies.
      Although private attorneys may be liable under § 1983 if they conspire
with state officials, Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th
Cir. 1988), Smith’s conclusional allegations, without reference to facts tending
to show that the defendants acted in concert with the specific intent to violate
his right not to be tried while incompetent, were insufficient to state a
conspiracy claim, see Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017), cert.
denied, 138 S. Ct. 687 (2018); Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th
Cir. 2004). His conclusional allegations were likewise insufficient to state a
§ 1985(3) claim against Stewart and Carmody. See Holdiness v. Stroud, 808
F.2d 417, 424-25 (5th Cir. 1987). Because Smith did not state a valid § 1985(3)
claim, his § 1986 claims against Stewart and Carmody were also properly
dismissed without prejudice. Bryan v. City of Madison, Miss., 213 F.3d 267,
276 (5th Cir. 2000). Accordingly, the district court’s judgment is AFFIRMED.




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