IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60245

Summary Calendar

DONALD KEITH SMITH,

Plaintiff-Appellant

v.

ANGEL MYERS; VICTOR CARMODY, JR.; KEVIN STEWART,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:15-CV-356

Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.

PER CURIAM:*

Donald Keith Smith, current federal prisoner # 15601-003 and former 

Mississippi prisoner # 150025, appeals the district court’s dismissal of his in 

forma pauperis (IFP) civil rights complaint against Jackson County Assistant 

District Attorney Angel Myers, Victor Carmody, Jr., and Kevin Stewart. Smith 

contends that the district court erred in sua sponte setting the case for trial 

without affording him an opportunity to conduct discovery. He also contends 

 

* 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

August 8, 2018

Lyle W. Cayce

Clerk

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2

that the district court erred in dismissing his complaint for failure to state a 

claim because the case had already been screened and set for trial.

The district court was not required to allow Smith to conduct discovery 

prior to dismissing his IFP complaint. See 28 U.S.C. § 1915(e)(2)(B)(ii); 

Southwestern Bell Tel., LP v. City of Houston, 529 F.3d 257, 263 (5th Cir. 2008). 

Further, although § 1915(e)(2)(B) dismissals are often made sua sponte prior 

to the issuance of process, Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir. 

1991), the statute’s plain language permits the district court to dismiss the 

case “at any time,” § 1915(e)(2).

Smith does not challenge the district court’s reasons for dismissing his 

42 U.S.C. §§ 1985(3) and 1986 claims against Myers. These issues are 

therefore abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 

813 F.2d 744, 748 (5th Cir. 1987). Instead, Smith contends that Myers was not 

entitled to absolute prosecutorial immunity, that he was not afforded an 

opportunity to elaborate on the immunity issues, and that Myers’s motion to 

dismiss should have been treated as a motion for summary judgment.

Contrary to Smith’s contention, he was afforded an opportunity to 

address Myers’s absolute immunity defense, and the district court properly 

construed Myers’s motion to dismiss as a motion for judgment on the pleadings

under Federal Rule of Civil Procedure 12(c). See Jones v. Greninger, 188 F.3d 

322, 324 (5th Cir. 1999); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 

1994). Further, because Myers’s alleged actions were “intimately associated 

with the judicial phase of the criminal process,” the district court did not err in 

concluding that she was entitled to absolute prosecutorial immunity from suit 

for damages under 42 U.S.C. § 1983. Loupe v. O’Bannon, 824 F.3d 534, 539 

(5th Cir. 2016) (internal quotation marks and citation omitted); see also 

Humble v. Foreman, 563 F.2d 780, 781 (5th Cir. 1977), overruled on other 

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grounds by Sparks v. Duval Cnty. Ranch Co., Inc., 604 F.2d 976 (5th Cir. 1979) 

(en banc).

Finally, Smith challenges the district court’s dismissal without prejudice 

of his §§ 1983, 1985(3), and 1986 claims against Stewart and Carmody. He 

argues that his allegations were sufficient to state a cognizable conspiracy 

claim and that § 1985(3) is not limited to race-based conspiracies.

Although private attorneys may be liable under § 1983 if they conspire 

with state officials, Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th 

Cir. 1988), Smith’s conclusional allegations, without reference to facts tending 

to show that the defendants acted in concert with the specific intent to violate 

his right not to be tried while incompetent, were insufficient to state a 

conspiracy claim, see Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017), cert. 

denied, 138 S. Ct. 687 (2018); Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th 

Cir. 2004). His conclusional allegations were likewise insufficient to state a 

§ 1985(3) claim against Stewart and Carmody. See Holdiness v. Stroud, 808 

F.2d 417, 424-25 (5th Cir. 1987). Because Smith did not state a valid § 1985(3)

claim, his § 1986 claims against Stewart and Carmody were also properly 

dismissed without prejudice. Bryan v. City of Madison, Miss., 213 F.3d 267, 

276 (5th Cir. 2000). Accordingly, the district court’s judgment is AFFIRMED.

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