     Case: 12-60629      Document: 00512592205         Page: 1    Date Filed: 04/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 12-60629                                FILED
                                  Summary Calendar                          April 10, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
PETER BERNEGGER,

                                                 Plaintiff-Appellant,

v.

MACK GRIMMETT; TOMMY TAYLOR; SCOTT PETERSON; ASSISTANT
WARDEN SELLERS; CAPTAIN GALLION; LIEUTENANT WILSON; CHRIS
ESPY; LIEUTENANT HALL; OKLAHOMA CITY FEDERAL TRANSFER
FACILITY WARDEN; UNITED STATES MARSHALS SERVICES; BUREAU
OF PRISONS; JEFF BUTLER; SAM MOORE; OFFICER HAYWARD;
CAPTAIN BROWN; CAPTAIN WHITE; CAPTAIN HICKS; CAPTAIN COOK;
MS. WALKER,

                                                 Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:10-CV-5


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Peter Bernegger, federal prisoner # 09660-089, appeals the district
court’s dismissal of his civil rights complaint pursuant to 28 U.S.C.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-60629

§ 1915(e)(2)(b)(i).   In his original civil rights complaint, he asserted that
various individuals involved in his federal criminal proceedings, including
prosecutor Robert J. Mims, had acted improperly, resulting in violations of
Bernegger’s constitutional rights and the commission of fraud upon the court.
Bernegger also asserted in an amended complaint that various defendants
involved in his incarceration at the Bolivar County Regional Correctional
Facility and the Oklahoma City Transfer Center had violated his
constitutional rights.
      On appeal, Bernegger contends that the district court erred in concluding
that his claims against the defendants involved in his criminal proceedings
were barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). The district
court did not cite to Heck in either of its opinions dismissing defendants or
claims. However, Bernegger’s claims relating to these defendants do call into
question the validity of his federal conviction, and he has not shown that the
conviction has been overturned or otherwise held to be invalid. See Heck, 512
U.S. at 486-87. Although Bernegger argues that his assertions of fraud upon
the court establish that the judgment of conviction is void, Heck does not
authorize the filing of a civil rights complaint under such circumstances. See
id.; see also Stephenson v. Reno, 28 F.3d 26 (5th Cir. 1994) (applying Heck to a
federal prisoner’s civil rights claim).
      Bernegger also asserts that the district court erred in ruling that Mims
was entitled to absolute immunity for his purportedly improper actions. To
the extent that these claims related to Mims’s decisions about whether to
prosecute or what charges to bring against Bernegger, such actions are within
the scope of Mims’s employment as a prosecutor and are entitled to immunity.
See Imbler v. Pachtman, 424 U.S. 409, 430 & n.33 (1976). Although Bernegger
raises other assertions indicating that Mims tampered with witnesses by



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                                 No. 12-60629

leaking information through third parties, such claims are also entitled to
immunity.    See Brandley v. Keeshan, 64 F.3d 196, 201 (5th Cir. 1995),
abrogation on other grounds recognized in Mapes v. Bishop, 541 F.3d 582, 584
(5th Cir. 2008).
      In another ground for relief, Bernegger asserts that he was entitled to
relief because he was denied access to a law library or to legal assistance while
incarcerated. The right of access to the courts does include access to legal
materials or assistance. Bounds v. Smith, 430 U.S. 817, 821 (1977). However,
Bernegger has not established that his inability to visit a law library hindered
his ability to pursue a nonfrivolous legal claim. See Christopher v. Harbury,
536 U.S. 403, 415 (2002).
      In addition, Bernegger challenges various rulings by the district court.
He contends that the district court erred in failing to amend his complaint to
include Bankruptcy Judge David Houston, III, as a defendant in his case and
failed to grant Bernegger’s motion to amend his complaint to augment his
claims against Judge Houston. Based on Bernegger’s pleadings, Mims gave
information about Bernegger’s criminal proceedings to Judge Houston, who
then disclosed that information to his wife, who then gave the information to
actual and potential trial witnesses.       The district court did not abuse its
discretion in denying the motion, as the proposed amendment would have been
futile because it failed to allege that Judge Houston violated Bernegger’s
constitutional rights. See Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242, 245
(5th Cir. 1997); see also Lyons v. Sheetz, 834 F.2d 493, 495 (5th Cir. 1987).
Even assuming arguendo that Bernegger stated a claim against Judge
Houston, such a claim of witness tampering calls into question the validity of
Bernegger’s conviction and would be barred by Heck. See 512 U.S. at 486-87.




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                                  No. 12-60629

      Bernegger also asserts that the district court erred in sealing his case.
The district court sealed only the amended complaint, not the entire case.
Given that the public could review the district court’s opinions and thus
ascertain the basis of the allegations included in the sealed document,
Bernegger has not established that the district court abused its discretion in
sealing a document containing vulgar language.              See S.E.C. v. Van
Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993).
      Bernegger also contends that the district court erred in dismissing his
complaint without holding a hearing pursuant to Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985).     Because he has not shown that the use of such a
proceeding to further develop the facts would have given rise to a constitutional
claim, he has not established that the district court abused its discretion in not
holding a hearing. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
      In sum, Bernegger has not shown that the district court erred in denying
relief on the allegations that he briefed before this court. See Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009); Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).
Although Bernegger raised numerous other allegations before the district
court, he does not brief these claims on appeal and they are deemed abandoned.
See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).   Accordingly, the judgment of the district court is AFFIRMED.
Bernegger’s motion to amend his appellate brief is GRANTED. His motion for
summary reversal against defendants who did not file timely appellate briefs
is DENIED.




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