# United States Court **of Appeals**  **f or 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

**______________________________** Before **Davis, Ho**  **,** and **Ramirez ,**  Circuit Judges

**. Per Curiam**  **:** *****

**_____________________**

* 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 Case: 23-20484 Document: 83-1 Page: 1 Date Filed: 06/10/2024No. 23

- 20484

2 Plaintiff

- Appellant, Michael W. Barnes, proceeding pro se a n d in f o r ma 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 Defenda nts 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 la w and sentenced to thirty

- five year s 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 th is act ion, 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 habitatio n and that the c ourt records did not indicate his “true arrest date.”

Barnes a sserted 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. Case: 23-20484 Document: 83-1 Page: 2 Date Filed: 06/10/2024No. 23

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3 contended that he suffers from extreme panic, stress, and anxi ety 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 viola ted,” 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 b ecause § 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 c ivil action under 42 U.S.C. § 1983, the
D efendants 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.

**_____________________**

3 512 U.S. 477 (1994). Case: 23-20484 Document: 83-1 Page: 3 Date Filed: 06/10/2024No. 23

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4 II. On appeal, Barnes argues that Defendants “never acquired legal authority to arrest, detain, or convict” him. Specifically, h e 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 Amen dment. Although this Court liberally construes pro se briefs, “ pro se parties must still brief the issues.” 4 Because Barnes fails to challenge the bas e s for the district court’s dismissal of his claims , Barnes has waived th ose issue s , and it is the sa me as if he has not appealed th e 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 la w, 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”). Case: 23-20484 Document: 83-1 Page: 4 Date Filed: 06/10/2024No. 23

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5 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

. Case: 23-20484 Document: 83-1 Page: 5 Date Filed: 06/10/2024