     Case: 10-40921 Document: 00511500541 Page: 1 Date Filed: 06/07/2011




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

                                                 FILED
                                                                             June 7, 2011
                                     No. 10-40921
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BRUCE EAVES,

                                                   Plaintiff-Appellant

v.

STATE OF TEXAS, State Officials; WILLIAM LEE, Polk County District
Attorney; DONALD K. HAMMACK, Polk County Sheriff; JOE D. ROTH,
Attorney at Law,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 9:10-CV-20


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Bruce Eaves appeals the dismissal of his complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915A(b)(1). In his complaint, he sought damages
against the State of Texas, his court-appointed attorney, and an unknown
deputy sheriff for violations of his rights under 42 U.S.C. § 1983 and Title II of
the Americans with Disabilities Act (ADA). His claims arise out of the forfeiture



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-40921 Document: 00511500541 Page: 2 Date Filed: 06/07/2011

                                     No. 10-40921

of his real and personal property following his conviction in Texas state court of
two counts of possession with intent to deliver controlled substances. He argues
that the district court erred by dismissing his claims against his court-appointed
attorney, by determining that he failed to state a claim under Title II of the
ADA, by concluding that he was barred by res judicata from collaterally
attacking the state court order of forfeiture, and by determining that his claims
against the deputy were barred by the Parratt/Hudson 1 doctrine.
      Section 1915A(b)(1) provides for dismissal of a prisoner’s civil-rights
complaint if it is “frivolous, malicious, or fails to state a claim upon which relief
may be granted.” This court reviews de novo the decision to dismiss a complaint
on this basis.    Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010).               In
determining whether the dismissal was proper, this court accepts the plaintiff’s
allegations as true. Id.
      Eaves’s court-appointed attorney is not a state actor and, as such, is not
subject to suit under § 1983. See Mills v. Criminal Dist. Court No. 3, 837 F.2d
677, 679 (5th Cir. 1988). To the extent that Eaves argues that his attorney
should be liable under § 1983 based on the fact that he conspired with state
actors, Eaves has failed to establish the existence of a conspiracy by reference
to specific factual allegations tending to show such an agreement. See Hale v.
Harney, 786 F.2d 688, 690 (5th Cir. 1986).
      Eaves has likewise not shown that the district court erred by dismissing
his claims against his attorney under Title II of the ADA. Title II of the ADA
provides that “no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. A “public entity” includes



      1
         Hudson v. Palmer, 468 U.S. 517, 534 (1984); Parratt v. Taylor, 451 U.S. 527, 541
(1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

                                           2
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                                  No. 10-40921

“any department, agency, special purpose district, or other instrumentality of a
State or States or local government.” 42 U.S.C. § 12131(1)(B). Eaves’s attorney
is not a public entity, and is therefore not subject to suit under Title II of the
ADA. See id.
      The facts alleged by Eaves do not support the conclusion that he was
denied the benefits of services, programs, or activities of a public entity. See
Lightborn v. County of El Paso, 118 F.3d 421, 428 (5th Cir. 1997). Moreover, the
district court correctly concluded that Eaves’s collateral attack of the forfeiture
judgment was precluded. See Shimon v. Sewerage & Water Bd. of New Orleans,
565 F.3d 195, 198 (5th Cir. 2009); Resolution Trust Corp. v. Sunbelt Fed. Sav.,
837 S.W.2d 627, 628 (Tex. 1992).
      Finally, Eaves complains that a deputy knowingly prevented him from
removing personal property from his home in violation of the trial court’s
forfeiture order. Eaves’s allegations, which this court must accept as true, even
if they are doubtful in fact, see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007), set forth a substantive due process claim based on his Fourth
Amendment property interest that is not barred by Parratt/Hudson. See Cozzo
v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 290-91 (5th
Cir. 2002); see also Soldal v. Cook County, Ill., 506 U.S. 56, 62-63 (1992);
Augustine v. Doe, 740 F.2d 322, 326-28 (5th Cir. 1984). Eaves’s complaint does
not, therefore, fail to allege any facts that would entitle him to relief, nor does
it lack an arguable basis in law or fact, as to this issue. See Green, 623 F.3d at
280. Accordingly, we vacate the district court’s dismissal of Eaves’s complaint
against the deputy for failure to state a claim and remand for further
proceedings.
      AFFIRMED IN PART; VACATED IN PART AND REMANDED.




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