United States Court of Appeals

for the Fifth Circuit ____________

No. 23-20484

Summary Calendar

____________

Micheal W. Barnes, 

Plaintiff—Appellant, 

versus

John E. Zitman; Diane Hill; Larry Finley; Steve Cupid; 

Erne Gonzalez; Buster Emmons; Lab Technician; Joni M. 

Vollman; Alfonso Macias; District Attorney Kim Ogg; 

The State of Texas; Harris County Precinct Four 

Internal Affairs Division; The Conviction Integrity 

Review Committee; Harris County, 

Defendants—Appellees. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:23-CV-2846

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Before Davis, Ho, and Ramirez, Circuit Judges.

Per Curiam:*

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

United States Court of Appeals

Fifth Circuit

FILED

June 10, 2024

Lyle W. Cayce

Clerk

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Plaintiff-Appellant, Michael W. Barnes, proceeding pro se and in forma 

pauperis, appeals the district court’s judgment dismissing his claims against 

Defendants-Appellees, the State of Texas, Harris County, and various state 

and county employees and agencies. We AFFIRM the dismissal with 

prejudice of Barnes’s claims against all Defendants except the State of Texas. 

We AFFIRM AS MODIFIED the dismissal of Barnes’s claim against the 

State of Texas to reflect that the dismissal is without prejudice.1

I.

In May 2007, Barnes was convicted by a jury of burglary of a habitation

under Texas law and sentenced to thirty-five years in prison. His conviction 

and sentence were affirmed on direct appeal. Barnes was released from 

prison approximately twelve years later and has been on parole since October 

2018. 

In June 2023, Barnes filed this action, which he entitled “Deprivation 

of Rights under the ‘Color of Law,’ Title 18 U.S.C., Section 242,”2 in state 

court. He alleged that he was arrested “without an arrest warrant issued 

from a neutral and detached magistrate based upon factual statements to 

determine probable cause.” He further asserted that he was “maliciously 

accused” of committing burglary of a habitation and that the court records 

did not indicate his “true arrest date.” 

Barnes asserted that he has suffered irreparable harm from his prison 

sentence and the approximate twelve years he served in prison. He 

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1 Dismissal on the basis of Eleventh Amendment immunity deprives the district 

court of jurisdiction and, thus, dismissal of claims against a state on that basis must be 

without prejudice. See Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th Cir. 1996).

2 Section 242 provides for criminal penalties for the deprivation of civil rights under 

certain circumstances. 

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contended that he suffers from extreme panic, stress, and anxiety which 

disrupt his everyday life. As relief, Barnes requested that Defendants be 

ordered to “release all information in reference to the validity and 

constitutionality of his arrest,” and that “upon a finding that [his] 

constitutional rights were violated,” Barnes “be released immediately from 

all forms of his illegal restraint.” 

Noting that Barnes alleged a federal cause of action under 18 U.S.C. 

§ 242, Defendants removed this action to federal district court. Thereafter, 

Defendants filed motions to dismiss based on various grounds, including 

(1) lack of jurisdiction based on the Eleventh Amendment, (2) failure to state 

a claim because § 242 provides only for criminal liability for the deprivation 

of civil rights and not a private cause of action, (3) to the extent Barnes’s 

action could be construed as a civil action under 42 U.S.C. § 1983, the 

Defendants sued in their individual capacities were entitled to qualified 

immunity, (4) barred by the two-year limitations period, (5) absolute

prosecutorial immunity, (6) lack of respondeat superior liability, and (7) 

impermissible collateral attack on his criminal conviction and, thus, barred 

under Heck v. Humphrey.

3

The district court granted the Defendants’ motions. The court 

determined that “[i]n the usual course of legal proceedings,” the issues 

raised by Barnes were matters “addressed by direct appeal or through state 

and/or federal habeas proceedings.” Additionally, the court determined that 

the claims were time-barred, precluded by exhaustion and failure to exhaust, 

and also barred as a matter of law citing the Eleventh Amendment. Barnes 

filed a timely notice of appeal. 

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3 512 U.S. 477 (1994).

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II.

On appeal, Barnes argues that Defendants “never acquired legal 

authority to arrest, detain, or convict” him. Specifically, he contends that 

Defendants did not “follow procedural due process requirements before 

arresting [him]” and that as a result “[t]he initial charging instrument . . . did 

not rise to the level of showing probable cause.” 

As Defendants point out, Barnes makes no argument regarding the 

district court’s various bases for dismissing his suit. Barnes does not 

challenge the district court’s determination that the issues he raises must be 

asserted on direct appeal or through state and/or federal habeas proceedings; 

that his claims in any event would be time-barred; and that any claim against 

the State of Texas is barred by the Eleventh Amendment. 

Although this Court liberally construes pro se briefs, “pro se parties 

must still brief the issues.”4 Because Barnes fails to challenge the bases for 

the district court’s dismissal of his claims, Barnes has waived those issues, 

and it is the same as if he has not appealed the judgment.5

 

Barnes contends that he was not “appealing his conviction” by filing 

his suit but actually “appealing the denial of information he requested under 

the public information act.” Barnes asserts, citing Texas law, that “there 

was a guaranteed right to the requested information.” As Defendants 

pointed out in the district court, however, if Barnes believes that a state 

governmental body has not provided information requested pursuant to a 

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4 Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Yohey v. Collins, 985 F.2d 222, 

225 (5th Cir. 1993) (“[A]rguments must be briefed to be preserved.”).

5 Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) 

(holding that appellant’s failure to identify any error in the basis for the district court’s 

judgment “is the same as if he had not appealed that judgment”).

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Public Information Act request, then he may be entitled to relief in state court 

under section 552.3215 of the Texas Government Code.6

Based on the foregoing, the district court’s judgment dismissing with 

prejudice Barnes’s claims against all Defendants except the State of Texas is 

AFFIRMED. The judgment is AFFIRMED AS MODIFIED to reflect 

that Barnes’s claim against the State of Texas is dismissed without prejudice.

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6 See Chapter 552, entitled “Public Information” of Texas Government Code.

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