IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30701

Summary Calendar

JOHNNY RAY LUNA; LOUIE MAX SCHEXNAYDER, JR.; ERRAN GEORGE

EVANS,

Plaintiffs-Appellants

v.

JUDGE THOMAS J. KLIEBERT, Louisiana Fifth Circuit Court of Appeals

Judge and Estate; EDWARD A. DUFRENSE, JR., Louisiana Fifth Circuit Court

of Appeals Judge and Estate; JUDGE H. CHARLES GAUDIN, Louisiana Fifth

Circuit Court of Appeals Judge and Estate; JUDGE CLARENCE E. MCMANUS,

Louisiana Fifth Circuit Court of Appeals Judge and Estate; JUDGE CHARLES

GRISBAUM, Louisiana Fifth Circuit Court of Appeals Judge and Estate;

THOMAS C. WICKER, Louisiana Fifth Circuit Court of Appeals Judge and

Estate; JUDGE SOL GOTHARD, Louisiana Fifth Circuit Court of Appeals Judge

and Estate; JUDGE FRED S. BOWES, Louisiana Fifth Circuit Court of Appeals

Judge and Estate; GREG G. GUIDRY, Louisiana Fifth Circuit Court of Appeals

Judge and Estate; JUDGE WALTER J. ROTHSCHILD, Louisiana Fifth Circuit

Court of Appeals Judge and Estate; JUDGE THOMAS F. DALEY, Louisiana

Fifth Circuit Court of Appeals Judge and Estate; JUDGE JAMES L.

CANNELLA, Louisiana Fifth Circuit Court of Appeals Judge and Estate,

JUDGE MARION F. EDWARDS, Louisiana Fifth Circuit Court of Appeals Judge

and Estate; JUDGE FREDERICKA H. WICKER, Louisiana Fifth Circuit Court

of Appeals Judge and Estate; SUSAN M. CHEHARDY, Louisiana Fifth Circuit

Court of Appeals Judge and Estate; PETER FRITZGERALD, Clerk of the

Louisiana Fifth Circuit Court of Appeals and Estate; JERROLD B. PETERSON,

Central Staff Director of the Louisiana Fifth Circuit Court of Appeals Judge and

Estate,

Defendants-Appellees

United States Court of Appeals

Fifth Circuit

F I L E D

February 26, 2010

Charles R. Fulbruge III

Clerk

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No. 09-30701

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.

2

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:09-CV-3853

Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Johnny Ray Luna, Louisiana prisoner # 385808, Louie Max Schexnayder,

Jr., Louisiana prisoner # 108097, and Erran George Evans, Louisiana prisoner

# 232497, contest the dismissal of their 42 U.S.C. § 1983 civil-rights complaint

as frivolous, for failure to state a claim on which relief may be granted, and/or

for seeking monetary damages against defendants who are immune from such

relief. Named as defendants were present and former judges and other court

employees of the Louisiana Fifth Circuit Court of Appeal. Appellants claimed

that, from 8 February 1994 to 21 May 2007, that court assigned a single judge

to review all pro se writ applications in contravention of the State’s constitution,

which requires a court of appeal to “sit in panels of at least three judges”. LA.

CONST. art. V, § 8(A); see also Severin v. Parish of Jefferson, No. 09-30395, 2009

WL 4885161, at *1 (5th Cir. 16 Dec. 2009). Because the complaint was

dismissed as frivolous under 28 U.S.C. § 1915A and § 1915(e) and for failure to

state a claim, our review is de novo. See Velasquez v. Woods, 329 F.3d 420, 421

(5th Cir. 2003). 

The district court concluded: to the extent appellants were suing

defendants in their official capacities for monetary damages, those claims were

barred by the Eleventh Amendment. Appellants do not address this ruling.

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Accordingly, those monetary claims are abandoned. See Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). 

In addition, the district court determined correctly that the judges are

entitled to absolute immunity in their individual capacities. See Mays v.

Sudderth, 97 F.3d 107, 110-11 (5th Cir. 1996); Severin, 2009 WL 4885161, at *3.

Appellants fail to address the basis for this dismissal of the individual-capacity

claims against the remaining defendants. Accordingly, those claims are also

abandoned. See Brinkmann, 813 F.2d at 748.

Appellants present no coherent challenge to the district court’s ruling that

they were not entitled to declaratory relief. Therefore, they have also abandoned

that claim. See id. Nor have they shown that the district court abused its

discretion in denying their request for injunctive relief. See White v. Carlucci,

862 F.2d 1209, 1211 (5th Cir. 1989). Any perceived fear of future

implementation of the prior writ procedure that Appellants may have harbored

is speculative and insufficient to show a substantial threat of irreparable harm.

See Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).

Further, the district court did not abuse its discretion by dismissing

Appellants’ state-law claims, because all of the federal claims were properly

dismissed. See Batiste v. Island Records, Inc., 179 F.3d 217, 226-27 (5th Cir.

1999); 28 U.S.C. § 1367(c)(3).

Although Appellants maintain the court erred in failing to conduct a

Spears hearing and in failing to appoint counsel, Appellants do not state what

additional facts would have been elicited. See Spears v. McCotter, 766 F.2d 179

(5th Cir. 1985), abrogated by Neitzke v. Williams, 490 U.S. 319 (1989).

Appellants, therefore, have failed to show the requisite exceptional

circumstances for warranting appointment of counsel. See Eason v. Thaler, 14

F.3d 8, 9-10 (5th Cir. 1994); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987). 

The district court’s dismissal of Appellants’ complaint as frivolous and for

failure to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g). See

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Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Appellants are

warned that, if they accumulate three strikes under § 1915(g), they will not be

allowed to proceed in forma pauperis in any civil action or appeal, unless they

are under imminent danger of serious physical injury. See § 1915(g).

AFFIRMED; SANCTION WARNING ISSUED. 

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