# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 22

- 10767

**Donnie Earl Phillips, Jr.,** Plaintiff

— Appellant **,**

versus **Robert Ray Cowie; Scott Wisch; Tom Benson; Rob Hayden; Mollee Westfall; Patrick Curran; Alejandra**  **Estrada; Mamie Bush Johnson; J. Eric Nikols; Scotty Jones,** 

Defendants —Appellees

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21

- CV

- 1362

Before **Wiener, Elrod,** and **Engelhardt** , Circuit Judges

**. Per Curiam**  **:** * Donnie Earl Phillips, Jr., Texas prisoner #0518336, asserted various claims under 42 U.S.C. § 1983 relating to his conviction and sentence for driving while intoxicated. The district court granted Phillips’s motion to

* This opinion is not designated for publication. See **5th Cir. R. 47.5**

. United States Court of Appeals Fifth Circuit 

### FILED March 15, 2023 Lyle W. Cayce Clerk Case: 22-10767 Document: 00516677484 Page: 1 Date Filed: 03/15/2023No. 22

- 10767

2 proceed in forma pauperis and allowed the filing of two amended complaints. After Phillips filed a second amended complaint, the district court dismissedseveral of his claims with prejudice and entered a partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Phillips v. Cowie , No. 4:21

- CV

- 1362, ECF 23 ( July 15, 2022) (opinion and order); id. ECF 24 (partial final judgment). The partial dismissal addressed the claims Phillips asserted against his private defense attorneys, several Tarrant County judges, and v arious bail bondsmen. The district court explained that, on the factsalleged, the defense attorneys and bail bondsmen are not state actors for purposes of § 1983, and that the state judges were entitled to absolute immunity. Phillips appealed the partia l final judgment , and the district court granted his motion to proceed in forma pauperis on appeal. We have jurisdiction to consider appeals from partial final judgmentswhere the district court determines that there is no just reason to delay dismissal

. 28 U.S.C. § 1291; see Jones v. Singing River Health Servs. Found. , 865 F.3d 285, 292 n.3 (5th Cir. 2017). But where, as here, the appellant proceeds in forma pauperis , we must dismiss the appeal if the issues presented are frivolous. 28 U.S.C. § 1915(e)( 2)(B)(i). Issues are frivolous if they are not “arguable on their merits.” Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983).Phillips’s issues are not arguable on their merits. First, private attorneys are not state actors except in the exceptional cas e that they conspire with an actual state official. Hudson v. Hughes , 98 F.3d 868, 873 (5th Cir. 1996); Mills v. Crim. Dist. Court No. 3 , 837 F.2d 677, 679 (5th Cir. 1988); see, e.g. , Uresti v. Reyes , 506 F. Appx. 328, 329 (5th Cir. 2011). The same is ge nerally true of bail bondsmen. Tebo v. Tebo , 550 F.3d 492, 496 (5th Cir. 2008); Landy v. A

- Able Bonding, Inc. , 75 F.3d 200, 203

– 05 (5th Cir. 1996); see , e.g. , Caballero v. Aamco Bail Bonding Co. , No. 97

- 20617, 1998 WL 414307, at *2 (5th Cir. July 16, 1998) (asking whether bondsman “enlisted the assistance of law enforcement officers” or “displayed an arrest warrant”) (citation and internal Case: 22-10767 Document: 00516677484 Page: 2 Date Filed: 03/15/2023No. 22

- 10767

3 quotation marks omitted). Accepting t he facts alleged in Phillips’s second amended complaint as true, they do not show that that the defense attorneys or the bail bondsmen were acting under color of state law

. Second, a judge is entitled to absolute immunity from acts taken in his or her judicial capacity. See, e.g. , Davis v. Tarrant County , 565 F.3d 214, 222 (5th Cir. 2009) (citing Stump v. Sparkman , 435 U.S. 349, 362 (1978)). Phillips’s complaint alleges that one judge wrongfully entered his conviction and that another committeda clerical on the judgment. The judges are entitled to absolute immunity because tho se actions were plainly taken in the judges’ judicial capacity. The issues raised in Phillips’s appeal are not arguable on the merits. We therefore must **DISMISS** the appeal. 28 U.S.C. § 1291 (e)(2)(B)(i)

. The petition for a writ of mandamus and motion to file a supplemental brief

are **DENIED AS MOOT**

. Case: 22-10767 Document: 00516677484 Page: 3 Date Filed: 03/15/2023