IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40921

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

June 7, 2011

Lyle W. Cayce

Clerk

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. 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 doctrine.

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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

Hudson v. Palmer, 468 U.S. 517, 534 (1984); Parratt v. Taylor, 451 U.S. 527, 541 1

(1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

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“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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