IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30128

Summary Calendar

KENNETH JAMES MOUTON,

Plaintiff-Appellant

v.

STATE OF LOUISIANA; OFFICE OF DISTRICT ATTORNEY; RONALD 

DAUTERIVE; PATRICK MICHOT; WAYNE CLIFTON; HAROLD 

REGISTER,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:12-CV-1320

Before HIGGINBOTHAM, CLEMENT, and GRAVES, Circuit Judges. 

PER CURIAM:*

Kenneth James Mouton, Louisiana prisoner # 328541, appeals the 

district court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state 

a claim. In his complaint, Mouton alleged that he had been convicted of armed 

robbery and aggravated criminal damage and sought damages, asserting 

various errors that occurred as part of his criminal trial and subsequent 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 14, 2013

Lyle W. Cayce

Clerk

 

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No. 13-30128

postconviction proceedings. The district court concluded that Mouton’s claims 

were barred by Heck v. Humphrey, 512 U.S. 477 (1994). Additionally, Mouton’s 

claim against Harold Register was subject to dismissal because Register, as a 

private attorney, was not a state actor within the meaning of § 1983. The

claims against Dauterive and Michot were also subject to dismissal on grounds 

of absolute immunity. 

We review de novo the district court’s dismissal. Hale v. King, 642 F.3d 

492, 497 (5th Cir. 2011). Mouton disagrees with the finding that his claims are 

barred under Heck. He contends that he is not attempting to overturn his 

conviction via a habeas corpus application, but instead is seeking damages for

the alleged constitutional violations. Mouton also reasserts the merits of the 

claims he raised in his § 1983 complaint. 

The test to determine whether a claim is barred by Heck is not whether 

success would invalidate the conviction, but whether a judgment in favor of the 

plaintiff would “necessarily imply the invalidity of his conviction or sentence.” 

Heck, 512 U.S. at 486-87. Mouton’s arguments regarding ineffective 

assistance, prosecutorial misconduct, trial court error, judicial misconduct, 

juror misconduct, and wrongful incarceration are all barred by Heck because 

these claims are directly related to the validity of his conviction. See id. As 

Mouton has failed to establish that his conviction has been reversed, expunged, 

declared invalid, or called into question by a federal court’s issuance of a writ 

of habeas corpus, the district court did not err in dismissing his complaint for 

failure to state a claim. See Heck, 512 U.S. at 486-87.

To the extent that the district court based its dismissal on grounds of 

immunity and Register’s status as a private attorney, Mouton has not 

adequately briefed any challenge to the district court’s determination and has 

abandoned these issues on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 

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(5th Cir. 1993). Thus, the appeal is without arguable merit and is thus 

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because 

the appeal is frivolous, it is dismissed. See 5TH CIR. R. 42.2. Mouton’s motion 

for the appointment of counsel is denied.

The dismissal of this appeal counts as one strike for purposes of 28 U.S.C. 

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). 

Mouton has two prior strikes. See Mouton v. State, No. 3:12-CV-236 (M.D. La. 

Jan. 8, 2013); Mouton v. John, et al., No. 3:11-CV-225 (M.D. La. Apr. 26, 2011). 

Accordingly, he is barred from proceeding IFP in any civil action or appeal filed 

in a court of the United States while he is incarcerated or detained in any 

facility unless he “is under imminent danger of serious physical injury.” 

§ 1915(g). 

APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL 

DENIED; § 1915(g) BAR IMPOSED.

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