                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 19, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-20155
                        Conference Calendar


DONALD F. HOBBS,

                                    Plaintiff-Appellant,

versus

UNITED STATES, (Federal Torts Claims Act);
KENNETH M. HOYT, U.S. Judge,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CV-4524
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Donald F. Hobbs (“Hobbs”), Texas state prisoner #691219,

proceeding pro se and in forma pauperis (“IFP”), appeals the

sua sponte dismissal of his 42 U.S.C. § 1983 and Federal Torts

Claims Act complaint for failure to state a claim upon which

relief could be granted pursuant to 28 U.S.C. § 1915A(b)(1).

Hobbs argues that Judge Kenneth M. Hoyt was not entitled to

absolute immunity because in a lawsuit, not related to 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that this opinion should not be published and is not precedent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.
                           No. 03-20155
                                -2-

instant lawsuit, Judge Hoyt acted without jurisdiction.    Hobbs

also contends that the sua sponte dismissal of his complaint was

erroneous because he was not given an opportunity to develop the

factual basis of his allegations.

     We review dismissals under 28 U.S.C. § 1915A de novo.

Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).

Judges enjoy absolute judicial immunity for judicial acts

performed in judicial proceedings.   Mays v. Sudderth, 97 F.3d

107, 110-11 (5th Cir. 1996).   “A judge will not be deprived

of immunity because the action he took was in error, was done

maliciously, or was in excess of his authority; rather, he

will be subject to liability only when he has acted in the

‘clear absence of all jurisdiction.’”     Id. at 111 (quoting

Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (further citation

omitted)).   Judge Hoyt did not lack jurisdiction in Hobbs’s

previous case because Hobbs’s prior interlocutory appeal

challenging the venue of his hearing was not appealable.        See

Askanase v. Livingwell, Inc., 981 F.2d 807, 809-10 (5th Cir.

1993).   Consequently, Judge Hoyt and the United States of America

are entitled to absolute immunity.   See Resolution Trust Corp.

v. United States Fidelity & Guar. Co., 27 F.3d 122, 126 (5th Cir.

1994); 28 U.S.C. § 2674.   Hobbs’s contention that the district

court’s sua sponte dismissal of his complaint was erroneous lacks

merit because Hobbs has failed to identify additional facts that

could have been pleaded to support his complaint, and because he
                           No. 03-20155
                                -3-

set forth his “best case” in the district court.   See Bazrowx

v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).

     Hobbs’s appeal is without arguable merit and is dismissed as

frivolous.   See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983).   The dismissal of the appeal as frivolous

and the district court’s dismissal of Hobbs’s 42 U.S.C. § 1983

complaint for failure to state a claim each count as a “strike”

under the three-strikes provision of 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Hobbs is CAUTIONED that if he accumulates three “strikes” under

28 U.S.C. § 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 28 U.S.C.

§ 1915(g).

     APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
