* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20385

_____________________

MICHAEL S. SLEEMAN,

Plaintiff-Appellant,

v.

BRAZORIA COUNTY, ET AL., 

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-95-CV-704)

_________________________________________________________________

January 31, 1996

Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Michael S. Sleeman appeals the district court's dismissal of

his 42 U.S.C. § 1983 claim against Brazoria County, Judge Ogden

Bass, Judge James Blackstock, Cindy Hall, Sheriff Joe King, and

Judge Samuel Kent, pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure, and the doctrines of absolute judicial

immunity and qualified immunity. We affirm.
2

I. BACKGROUND

On the morning of November 14, 1994, Sleeman went to the

County Court at Law Number 3 of Brazoria County, with the intent

of serving a federal complaint on Judge Blackstock. Sleeman's

version of what happened that day is uncontested on appeal. 

According to Sleeman, he waited for a break in the proceedings

and then asked Judge Blackstock's permission to approach the

bench. Sleeman asked Judge Blackstock if the judge's clerk could

accept service for him. When the judge answered "yes," Sleeman

delivered the papers and left the courtroom. Several hours

later, Sleeman returned to Judge Blackstock's courtroom as a

subpoenaed witness in a case pending before the judge that

afternoon. When Judge Blackstock noticed Sleeman sitting in the

courtroom, the judge called him to the bench. Commenting that he

disapproved of the way Sleeman had delivered his papers that

morning, Judge Blackstock held him in contempt of court and

imposed a sentence of ninety days incarceration and a $300 fine. 

Sleeman petitioned for a writ of Habeas Corpus in both

federal and state courts before Judge Kent and Judge Bass,

respectively. On December 30, 1994, after Sleeman had served 38

days and a state appeals court had agreed to hear his habeas

corpus petition, Judge Blackstock commuted Sleeman's sentence to

time served.

On March 10, 1995, Sleeman, acting pro se, filed his

original complaint for damages and alleged civil rights
 

2 Sleeman seeks damages under the Civil Rights Act of

1871, Rev. Stat. § 1979, presently 42 U.S.C. § 1983. This

section provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizens of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress.

42 U.S.C. § 1983.

3

violations pursuant to 42 U.S.C. § 1983,2 in the United States

District Court for the Southern District of Texas. Sleeman

asserted that Judge Blackstock had acted vindictively--wrongly

finding Sleeman in contempt and sentencing him. He alleged that

Judge Bass and Judge Kent delayed in acting on his petition for

the writ of habeas corpus. In addition, Sleeman sued Brazoria

County, and Cindy Hall, an assistant criminal district attorney

of Brazoria County, and Joe King, Sheriff of Brazoria County, for

assisting in his arrest. Pursuant to Rule 12(b)(6), each

defendant filed a motion to dismiss for failure to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

On May 2, 1995, the district court entered an order

dismissing all defendants. The district court found that, with

respect to Sleeman's complaint: Judges Blackstock, Bass, and

Kent enjoyed absolute judicial immunity; Hall and King possessed

qualified immunity; and Sleeman had "failed to provide any

factual basis for his allegations that Brazoria County had an

unconstitutional policy which led to his unlawful arrest." 
4

Thereafter, Sleeman timely filed a notice of appeal from the

order and final judgment of dismissal.

II. DISCUSSION

We review de novo a dismissal for failure to state a claim

upon which relief can be granted. First Gibraltar Bank, FSB v.

Smith, 62 F.3d 133, 135 (5th Cir. 1995). We accept the

allegations of the complaint as true and we do not affirm the

district court's dismissal unless it appears beyond doubt that

the plaintiff cannot prove any set of facts in support of his

claim which would entitle him to relief. Lefall v. Dallas Indep.

School Dist., 28 F.3d 521, 524 (5th Cir. 1994).

Sleeman challenges only the district court's dismissal of

his § 1983 complaint against Judge Blackstock. The other

defendants--Brazoria County, Judge Bass, Hall, King, and Judge

Kent--are included in this appeal by virtue of Sleeman's notice

of appeal, but Sleeman does not seek relief against them in his

appeal brief. Although we construe the briefs of pro se

litigants more permissively than those filed by counsel,

Securities and Exch. Comm'n v. AMX, Int'l, Inc., 7 F.3d 71, 75

(5th Cir. 1993), issues not raised and argued in a litigant's

initial appeal brief are considered waived. Cinel v. Connick, 15

F.3d 1338, 1345 (5th Cir.), cert denied, 115 S. Ct. 189 (1994). 

Therefore, consistent with an apparently deliberate choice on

Sleeman's part, we find that he has abandoned his claims against

all defendants other than Judge Blackstock. 
5

The Rule 12(b)(6) dismissal of Sleeman's complaint against

Judge Blackstock was based on the doctrine of absolute judicial

immunity. It is well-established "as a general principle of the

highest importance to the proper administration of justice that a

judicial officer, in exercising the authority vested in him,

shall be free to act upon his own convictions, without

apprehension of personal consequences to himself." Harper v.

Merckle, 638 F.2d 848, 856 (5th Cir.) (quoting Bradley v. Fisher,

80 U.S. (13 Wall) 335, 347 (1871)), cert. denied, 454 U.S. 816

(1981). For this reason, a judge acting within the ambit of his

authority enjoys absolute judicial immunity. McAfee v. 5th

Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989), cert. denied,

493 U.S. 1083 (1990). The Supreme Court has concluded that §

1983 did not abolish this settled principle of law. Pierson v.

Ray, 386 U.S. 547, 554-55 (1967)). Therefore, a judge remains

absolutely immune against actions for damages for all judicial

acts that are not performed in the clear absence of all

jurisdiction. Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir.

1993). 

We must determine whether Judge Blackstock's actions were

judicial acts and, if so, whether or not they fall clearly

outside his jurisdiction as a state court judge. Harper, 638

F.2d at 858. The actions of Judge Blackstock that are at issue

are those that took place on the afternoon of November 14, 1994--

when Judge Blackstock found Sleeman in contempt and sentenced
 

3 Sleeman and Judge Blackstock crossed paths twice on the

day in question--in the morning, when Sleeman served the judge

with process, and in the afternoon when Judge Blackstock found

Sleeman in contempt and sentenced him. Although the morning

encounter precipitated the conduct taken by Judge Blackstock that

afternoon, Sleeman does not seek damages for anything the judge

did in the morning. Because Judge Blackstock does not need to

invoke the doctrine of absolute judicial immunity for his conduct

in the morning, we need only focus on the afternoon encounter.

6

him.3 We consider four factors in determining whether Judge

Blackstock's actions were judicial in nature: (1) whether the

precise acts complained of--use of the contempt and sentencing

powers--are normal judicial functions; (2) whether the acts

occurred in the courtroom or adjunct spaces; (3) whether the acts

centered around a case pending before Judge Blackstock; and (4)

whether the acts arose directly out of a visit to the judge in

his official capacity. Malina, 994 F.2d at 1124 (citing

McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)). These

four factors are to be broadly construed in favor of immunity,

and immunity is sometimes proper even though one or more of the

factors is not met. Id. (citations omitted).

The first two factors weigh in favor of a finding that Judge

Blackstock's actions toward Sleeman were judicial in nature. The

first factor--whether the precise acts complained of are normal

judicial functions--favors Judge Blackstock because both the

contempt citation and the sentencing are normal functions of a

judge. The second factor--whether the acts occurred in the

courtroom or adjunct spaces--also favors Judge Blackstock. 

Sleeman was found in contempt and sentenced in County Court at

Law Number 3. 
7

Judge Blackstock's position loses some ground, however,

under the third factor. That factor--whether the acts centered

around a case pending before the judge--clearly does not weigh in

favor of a finding that Judge Blackstock's actions toward Sleeman

were judicial in nature. The acts that led to Sleeman's

incarceration did not center around any matter pending before

Judge Blackstock. They were precipitated by Sleeman's service of

process on Judge Blackstock in the morning, and they were

subsequently triggered when Sleeman found himself back in the

courtroom that afternoon within eyeshot of the judge.

Sleeman argues that the fourth factor--whether the acts

arose directly out of a visit to the judge in his official

capacity--weighs in favor of a finding that Judge Blackstock's

actions were not judicial in nature. He contends that the

confrontation arose out of nonjudicial business because he

expected to be serving process on Blackstock, the private

citizen, not Blackstock, the judge. Sleeman suggests that our

holding in Harper supports his position. In Harper, we recalled

the language of Stump v. Sparkman, 435 U.S. 349, 362 (1978),

where Justice White concluded that "consideration must be given

not only to the nature of the act itself but also to the

expectations of the parties." Harper, 638 F.2d at 859 (quotation

marks omitted). 

Harper involved a § 1983 action brought against a county

judge in Florida. The defendant in Harper, Judge Merckle,

occupied an office in the courthouse where Jack Harper's former
 

4 To exemplify the limited application of our holding in

Harper, we noted that our research had revealed only one other

case within the scope of our holding: Zarcone v. Perry, 572 F.2d

52 (2d Cir. 1978). Harper, 638 F.2d at 859 n.17. Zarcone

involved a judge who ordered a coffee vendor handcuffed and

brought before him after patronizing the vendor and adjudging his

coffee "putrid." Zarcone, 572 F.2d at 53. In his chambers, the

judge "started screaming at [the coffee vendor], threatening him

and his 'livelihood' for about 20 minutes, and thoroughly scaring

him." Id. Later that night, the vendor was again brought before

the judge for a similar encounter. Id. at 54.

8

wife worked as a secretary. One day, while Harper was looking

for his former wife, he happened into Judge Merckle's office. 

Judge Merckle was wearing street clothes and apparently did not

identify himself. Operating on the basis of courthouse gossip

and mistakenly believing that there was an outstanding contempt

violation against Harper, Judge Merckle began an impromptu

interrogation session. "[I]n what can be characterized fairly as

a most unusual request, Judge Merckle, still seated behind his

secretary's desk, told [Harper] to raise his right hand to be

sworn in." Harper, 638 F.2d at 851. A befuddled Harper promptly

left the building. Court bailiffs caught Harper and escorted him

back to the judge's chambers for a hastily convened contempt

hearing at which Judge Merckle found him in contempt of court and

sentenced him to three days incarceration. In an "exceedingly

narrow" ruling "tailored to this, the rarest of factual

settings,"4 we held: 

[W]hen it is beyond reasonable doubt that a judge has

acted out of personal motivation and has used his

judicial office as an offensive weapon to vindicate

personal objectives, and it further appears certain

that no party has invoked the judicial machinery for

any purpose at all, then the judge's actions do not

amount to "judicial acts." 
9

Harper, 638 F.2d at 859. Accordingly, we found that Judge

Merckle's actions could not be considered judicial acts and that

absolute judicial immunity was inappropriate. Id.

The case at bar is distinguishable from Harper. Whereas we

found it "clearly unreasonable to conclude that Harper

entertained the expectation that judicial matters were at hand

when he entered Judge Merckle's office on nonjudicial business,"

the same cannot be said of Sleeman in this case. On the

afternoon of the day in question, Sleeman entered Judge

Blackstock's courtroom as a subpoenaed witness in a case pending

before the judge. Sleeman was fully aware that "judicial matters

were at hand," even though he was not aware that one such

judicial matter would focus on him. He did expect, however, to

encounter Judge Blackstock serving in his official capacity. The

finding of contempt and the sentencing took place during this

afternoon visit. Therefore, we find that the fourth factor

weighs in favor of Judge Blackstock, and, based on our analysis

of all four factors, we conclude that Judge Blackstock's actions

are properly characterized as judicial acts.

Notwithstanding that they are judicial in nature, to enjoy

absolute judicial immunity, Judge Blackstock's actions must not

fall outside his jurisdiction as a state court judge. Malina,

994 F.2d at 1124. We must determine whether Judge Blackstock had

subject-matter jurisdiction to issue the contempt citation and

sentence. Id. at 1125 n.1 (pointing out that this approach is

consistent with the position taken by a majority of the Circuits
 

5 Title 2, the portion of the Texas Government Code that

deals with the judicial branch, provides in pertinent part:

§ 21.001. Inherent Power and Duty of Courts

 (a) A court has all powers necessary for the

exercise of its jurisdiction and the enforcement of its

lawful orders, including authority to issue writs and

orders necessary or proper in aid of its jurisdiction.

 (b) A court shall require that proceedings be

conducted with dignity and in an orderly and

expeditious manner and control the proceedings so that

justice is done.

§ 21.002. Contempt of Court

 (a) A court may punish for contempt.

 (b) The punishment for contempt of court other than

a justice court or municipal court is a fine of not

more than $500 or confinement in the county jail for

not more than six months, or both such a fine and

confinement in jail.

. . . .

Tex. Gov't Code Ann. §§ 21.001--21.002.

10

and the Supreme Court). By law, a judge in Texas may hold

someone in his courtroom in contempt and sentence him to jail

time, a fine, or both.5 Thus, Judge Blackstock had subjectmatter jurisdiction over Sleeman's conduct within the courtroom

and therefore, Judge Blackstock's actions were not taken in the

clear absence of all jurisdiction. 

We conclude that Judge Blackstock is entitled to absolute

judicial immunity for citing Sleeman with contempt and sentencing

him to ninety days in jail and a $300 fine. We may disagree with

the action taken by Judge Blackstock but that does not justify

depriving the judge of immunity. Stump, 435 F.2d at 363. "This

immunity applies even when the judge is accused of acting

maliciously and corruptly." Pierson, 386 U.S. at 554. As long

as the acts were performed in the exercise of his judicial
 

6 In Heck, the Supreme Court held:

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such determination, or called into

question by a federal court's issuance of a writ of

habeas corpus." 

Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994).

11

function, "the alleged magnitude of the judge's errors or the

mendacity of his acts is irrelevant." Boyd v. Biggers, 31 F.3d

279, 284 (5th Cir. 1994). Because Judge Blackstock is absolutely

immune from suit for finding Sleeman in contempt and sentencing

him, it follows that Sleeman failed to state a claim against

Judge Blackstock upon which relief can be granted. The district

court properly dismissed Sleeman's action pursuant to Rule

12(b)(6).

In addition to the doctrine of absolute judicial immunity,

Judge Blackstock raises another argument in his defense. He

contends that Sleeman's complaint is barred by the Supreme

Court's holding in Heck v. Humphrey, 114 S. Ct. 2364, 2372

(1994).6 As a result of our determination that Judge Blackstock

enjoys absolute judicial immunity, we need not reach the question

of whether the holding in Heck precludes recovery on a § 1983

suit brought under the peculiar facts of this case.
12

III. CONCLUSION

For the foregoing reasons, the decision of the district

court is AFFIRMED.