                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                             No. 93-1292
                         Conference Calendar

DANNY R. GRAVES,
                                                 Plaintiff-Appellant,


                                versus


JUDGE JACK HAMPTON, ET AL.,
                                                 Defendants-Appellees.

                           CONSOLIDATED WITH

                         _____________________

                              No. 92-9114
                          Conference Calendar
                         _____________________


RONALD HARLAN EDMONDS,
                                                 Plaintiff-Appellant,

                                versus

MICHAEL FITZPATRICK, Warden,
FCI Big Spring, Texas, ET AL.,
                                                 Defendants-Appellees.

                           CONSOLIDATED WITH

                         _____________________

                              No. 93-1432
                          Conference Calendar
                         _____________________

CHRIS LOPEZ,
                                                 Plaintiff-Appellant,

                                versus

BRANCH T. COE, M.D.,
Hale County Jail Physician,
                                                 Defendant-Appellee.
          Appeals from the United States District Court
                For the Northern District of Texas

                       (    August 26, 1993      )


Before POLITZ, Chief Judge, WIENER and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:

     We have consolidated the captioned cases for appeal and

publish our disposition thereof for two purposes:        (1) to inform

the bench, bar, and public of the adoption of our Conference
Calendar procedure in this circuit and to explain its operation;1

and (2) to clarify the basis for and effect of the dismissal of in

forma pauperis filings under 28 U.S.C. § 1915(d).



                           Conference Calendar

     The inexorable increase in appeals has mandated a constant

review and refinement of appellate procedures in order to maintain

an acceptable level of timely dispositions.2         One refinement has

been the introduction of the Conference Calendar in which a panel



     1
          For a detailed discussion, including a statistical
analysis, see the Foreword to the Texas Tech Law Review, Vol. 24
(1993), written by our colleague Judge Jerry E. Smith.
     2
          United States Courts of Appeals typically maintain
records on a statistical year beginning on July 1 and continuing
until the following June 30. Appeals filed in the Fifth Circuit as
of June 30 of the indicated year were as follows:      1989-4,743;
1990-5,052; 1991-5,598; 1992-6,421; 1993-6,695. "[P]risoner pro se
cases have consistently comprised approximately one quarter of the
docket of this court." Wilson v. Barrientos, 926 F.2d 480, 482
(5th Cir. 1991). Although authorized 17 active judges, for the
past three years we have had 14 or less active judges. For the
past 20 months we have had 13 active judges.

                                    2
of judges meets, typically for four days, and resolves an average

of 30 cases per day.       Prior to the collegial conference, the panel

members read the briefs and a bench memorandum prepared by staff

counsel in each of the cases to be decided at conference.                  Each

panel member personally reviews the records of one-third of the

day's cases and takes the lead in the discussion of those cases

following a presentation by staff counsel. Prior to the conference

a draft of the proposed per curiam opinion is reviewed and revised,

as needed, by the judge responsible for the record analysis.               The

panel thoroughly discusses the appellate issues and resolves same,

making such changes as may be appropriate in the proposed opinion.

With the aid of modern technology, all revisions are promptly

completed and the opinions are approved, signed, and filed with the

clerk of court.

     Our Conference Calendar practice is now in its second year of

operation.    We plan sessions on alternate months and anticipate

average dockets of 120 cases per session.           Every active judge on

our court has served on at least one Conference Calendar panel and

most have    served   on    two   or   more.   We   are   unanimous   in   our

conclusion that cases decided on the Conference Calendar receive a

fully adequate allocation of quality judicial time and attention.



                            Graves - No. 93-1292

     Danny R. Graves appeals the dismissal pursuant to 28 U.S.C.

§ 1915(d) of his section 1983 civil rights claim.             We modify and

affirm.


                                        3
      Graves, proceeding in forma pauperis, filed suit against Judge

Jack Hampton, John Vance, the District Attorney for Dallas County,

and   Harris   M.   Samuel,   a     private   citizen,   alleging   false

imprisonment as a result of his prosecution and conviction for

forgery.     Finding all defendants immune from suit the district

court invoked section 1915(d) and dismissed the complaint as

frivolous.

      Dismissal of an in forma pauperis petition under 28 U.S.C.

§ 1915(d) is appropriate if the district court is "satisfied that

the action is frivolous or malicious."        An action is frivolous if

it "lacks an arguable basis either in law or in fact."3        We review

a district court's section 1915(d) dismissal utilizing the abuse of

discretion standard.4

      A claim is based upon an indisputably meritless legal theory

if the defendants are immune from suit.5          Graves advances three

such claims.    Judicial officers are entitled to absolute immunity

from damage claims arising out of acts performed in the exercise of

their judicial functions.6        The claims against Judge Hampton are

based upon his actions during Graves' criminal trial SQ actions

well within the ambit of the judge's absolute immunity.

      A criminal prosecutor also enjoys absolute immunity from



      3
          Neitzke v. Williams, 490 U.S. 319, 325 (1989).
      4
          Denton v. Hernandez, 112 S.Ct. 1728 (1992).
      5
          Neitzke, 490 U.S. at 327.
      6
          Mitchell v. McBryde, 944 F.2d 229 (5th Cir. 1991).

                                     4
section 1983 damage claims for presenting the state's case.7             This

immunity        applies   to   the   prosecutor's   actions    in   initiating

prosecution and in carrying the case through the judicial process.8

Graves' claims against Vance are based on Vance's prosecution of

Graves for forgery, actions obviously within the scope of the

prosecutorial immunity.9

     Finally, the district court dismissed Graves' claims against

Samuel because Graves did not allege any facts which would make

Samuel a state actor.          Graves alleges only that Samuel made a false

statement against him.          A witness is entitled to absolute immunity

from section 1983 damage claims, even if it is alleged that the

witness committed perjury.10

     Because all three defendants are immune from suit, dismissal

under section 1915(d) was proper; Graves' claims against these

defendants have no arguable basis in law.11                   Graves insists,

however, that the court erred in not allowing him to amend his

complaint to cure any defects.12

     7
              Imbler v. Pachtman, 424 U.S. 409 (1976).
          8
         Young v. Biggers, 938 F.2d 565 (5th Cir. 1991), cert.
denied, 112 S.Ct. 1485 (1992).
     9
        Graves also alleges that Vance used tampered evidence. A
prosecutor is immune, however, even if accused of knowingly using
perjured testimony.   McCoy v. Gordon, 709 F.2d 1060 (5th Cir.
1983); Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979).
     10
              Briscoe v. LaHue, 460 U.S. 325 (1983); Young.
     11
              Neitzke.
     12
        Graves confuses a section 1915(d) dismissal as frivolous
with dismissals for failure to state a claim under Fed.R.Civ.P.
12(b)(6). Although "[u]nder Rule 12(b)(6), a plaintiff with an

                                         5
     In Denton, the Court noted that among the pertinent factors in

determining whether a district court has abused its discretion in

dismissing a complaint under section 1915(d), is the inquiry

whether the dismissal is with or without prejudice.13              "[I]f it

appears    that   frivolous   factual   allegations   could   be   remedied

through more specific pleading, a court of appeals reviewing a

section 1915(d) disposition should consider whether the District

Court abused its discretion by dismissing the complaint with

prejudice or without leave to amend."14

     The judgment dismissing Graves' complaint contains no language

advising whether the dismissal is with or without prejudice.

Although the general rule is that a dismissal is with prejudice

unless otherwise specified,15 the application of that general rubric


arguable claim is ordinarily accorded notice of a pending motion to
dismiss for failure to state a claim and an opportunity to amend
the complaint before the motion is ruled upon," section 1915(d)
provides no such procedural protections.     Neitzke, 490 U.S. at
329-30.
          13
            "In reviewing a § 1915(d) dismissal for abuse of
discretion, it would be appropriate for the court of appeals to
consider, among other things, whether the plaintiff was proceeding
pro se, whether the court inappropriately resolved genuine issues
of disputed fact, whether the court applied erroneous legal
conclusions, whether the court has provided a statement explaining
the dismissal that facilitates 'intelligent appellate review,' and
whether the dismissal was with or without prejudice."    112 S.Ct.
at 1734 (citations omitted).
     14
          Id.
     15
          See Fed.R.Civ.P. 41(b) which provides in pertinent part:

     Unless the court in its order for dismissal otherwise
     specifies, a dismissal under this subdivision and any
     dismissal not provided for in this rule, other than a
     dismissal for lack of jurisdiction, for improper venue,
     or for failure to join a party under Rule 19, operates as

                                    6
to section 1915(d) dismissals is by no means certain.

      In Denton, the Supreme Court noted:

      Because a § 1915(d) dismissal is not a dismissal on the
      merits, but rather an exercise of the court's discretion
      under the in forma pauperis statute, the dismissal does
      not prejudice the filing of a paid complaint making the
      same allegations. It could, however, have a res judicata
      effect on frivolousness determinations for future in
      forma pauperis petitions.16

This suggests that section 1915(d) dismissals generally are to be

without prejudice.            Thus, when a section 1915(d) dismissal is

silent, we will presume that the dismissal is without prejudice.

This does not mean, however, that a section 1915(d) dismissal

should never be with prejudice.17               Should the court determine to

dismiss with prejudice, appropriate reasons must be assigned.                     For

example, if it is clear from the face of the complaint that the

claims asserted are subject to an obvious meritorious defense, such

as   a peremptory          time   bar,    dismissal    with   prejudice   would   be

appropriate, for no amendment or subsequently paid filing could

overcome the fatal defect.18              Dismissal with prejudice also would

be appropriate if the plaintiff has been given an opportunity to

expound         on   the    factual      allegations    by    way   of    a   Watson




      an adjudication on the merits.
      16
            112 S.Ct. at 1734.
           17
           If such were the case, Denton's direction that the
appellate court reviewing a section 1915(d) dismissal should
consider whether the dismissal was with or without prejudice would
be meaningless.
      18
            Ali v. Higgs, 892 F.2d 438 (5th Cir. 1990).

                                            7
questionnaire19 or orally via a Spears hearing,20 but does not assert

any facts which would support an arguable claim.21   Finally, claims

which otherwise clearly have no arguable basis in law,22 thereby

negating a rectification by amendment, usually should be dismissed

with prejudice.

     Graves' claims were dismissed without prejudice.      Because his

claims clearly lack an arguable basis in law, the trial court's

dismissal should have been with prejudice.      As so modified, the

judgment of the district court is AFFIRMED.




     19
           Watson v. Ault, 525 F.2d 886 (5th Cir. 1976).
     20
         Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). For a
discussion of the scope and purposes of a Spears hearing, see
Wilson v. Barrientos, 926 F.2d 480 (5th Cir. 1991).           Other
procedures may also be available for the district court to "pierce
the veil of the complaint's factual allegations." Neitzke, 490
U.S. at 327. For example, we have cited with approval a procedure
developed by the Tenth Circuit "order[ing] that prison officials
investigate the facts surrounding a civil rights suit by inmates to
construct 'an administrative record . . . to enable the trial court
to . . . make a determination [of frivolity].'" Cay v. Estelle,
789 F.2d 318, 323 n.4 (5th Cir. 1986) (citing Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978)).
      21
         Whittington v. Lynaugh, 842 F.2d 818 (5th Cir.), cert.
denied, 488 U.S. 840 (1988) (following Spears hearing claim was
dismissed per section 1915(d) because plaintiff did not "advance
the slightest factual support for his allegations"); see Parker v.
Fort Worth Police Dept., 980 F.2d 1023 (5th Cir. 1993) (abuse of
discretion   found   in  section   1915(d)   dismissal   based   on
consideration of the petition only; court should have granted leave
to amend); but see Murphy v. Kellar, 950 F.2d 290 (5th Cir. 1992)
(following a Spears hearing, court allows pro se petitioner to
conduct limited discovery to more adequately state his claim).
     22
          For example, claims of infringement of a legal interest
which clearly does not exist would fall into this category. See
Neitzke, 490 U.S. at 327.

                                  8
                               Edmonds - No. 92-9114

     Ronald Harlan Edmonds invokes 42 U.S.C. § 1983 and complains

that his eighth amendment rights were violated by incompetent

medical personnel in the federal prison.23 It is firmly established

that negligent or mistaken medical treatment or judgment does not

implicate the eighth amendment and does not provide the basis for

a civil rights action.24            It is irrefutable that Edmond's claim has

no arguable basis in law and it is therefore subject to dismissal

with prejudice. The trial court's judgment is accordingly modified

to so provide and, as modified, is AFFIRMED.



                                Lopez - No. 93-1432

     Chris Lopez also complains of inadequate medical treatment.

To state a cognizable claim under 42 U.S.C. § 1983 a prisoner must

allege    and    be    able    to    prove       that    the   defendants   exhibited

"deliberate indifference to his serious medical needs."25                       Lopez

complains       only   of     negligence         and    malpractice.    His    claims

manifestly have no arguable basis in law and must be dismissed.

They should be dismissed with prejudice and, modified to reflect

such, the judgment of the district court is AFFIRMED.




     23
          Because federal personnel are the only defendants, the
action is properly brought under the eighth amendment itself.
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
     24
            Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991).
     25
            Id. at 321 (citation omitted).

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