### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20600 Summary Calendar

KELVIN WASHINGTON, Plaintiff-Appellant

v. AMANDA BOLIN, Fort Bend Assistant District Attorney; JUDGE THOMAS R. CULVER, I I I , 240th Criminal Court; JOSH WEISS, Harris County Assistant District Attorney; JUDGE SHAWNA REAGIN, 176th Criminal Court; PEGGY BIJOU, Fort Bend County Commu nity S u p e rvi s i o n a n d C o rr e ctions Department P r e tri al ; C H R I S W O L F F , S u p ervisor, F o rt B e n d C o u nty C o m m u nity S u p e rvi s i o n and Corrections Department Pretrial, Defendants-Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CV-781

Before JOLLY, JONES, and DENNIS, Circuit Judges. PER CURIAM: * Kelvin Washington, Texas prisoner # 6 4 1 3 2 0, pro se and in forma pauperis (IFP), appeals the magistrate judge’s (MJ) dismissal of his civil complaint pursuant to Federal Rule of Civil Procedure 12(b). We r e v i e w d e novo the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 12, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20600 Document: 00512050187 Page: 1 Date Filed: 11/12/2012No. 11-20600

dismis s a l f

o r l ack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Ballew v. Continental Airlines, Inc ., 668 F.3d 777, 781 (5th Cir. 2012); Turner v. Pleasant , 663 F.3d 770, 775 (5th Cir. 2011). The MJ g r anted the defendants’ motions to dismiss on the grounds that (1) Washington’s claims for injunctive and declaratory relief should not be addressed based on the Younger abstention doctrine, (2) Eleventh Amendment 1 immunity barred Washington’s claims against Officers Bijou and Wolff and against Assistant Distric t Attorneys (ADAs) Bolin and Reiss, and ( 3 ) Washington’s claims against Judges Culver and Reagin were barre d b y absolute judicial immunity. Washington has inadequately b ri e f e d a ny challenge to the application of the Younger abstention doctrine to his claims for injunctive and declaratory relief and has abandoned on appeal any challenge to t h e MJ’s reliance on the doctrine. See Brinkmann v. Dallas County Deputy SheriffAbner , 813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins , 985 F

. 2 d 2 2 2 , 224-25 (5th Cir. 1993). W a s hi n gt o n c h all e n g e s the MJ’s determination that E l ev e nth Am e n d m e nt immunity barred his claims against Officers Bijou and Wolff and against ADAs Bolin and Reiss. Official capacity suits are treated the same as suits against the state, and Eleventh Amendment immunity applies to state officials when sued in their official capacities. See Hafer v. Melo , 502 U.S. 21, 26 (1991); McKinley

v. Abbot , 643 F.3d 403, 406 (5th Cir.), cert. denied , 132 S. Ct. 825 (2011). The MJ held that Eleventh Amendment immunity extended to Washington’s claims for monetary damages against Officers Bijou and Wolff in their official capacities. Washington has not argued that the distric t court erred by failing to address specifically whether the Fort Bend County Community Supervision and Corrections Department was a state or local entity for p u r poses of applying

Younge r v. H

ar ri s , 401 U. S. 37 (197 1). 1 2 Case: 11-20600 Document: 00512050187 Page: 2 Date Filed: 11/12/2012No. 11-20600

Eleventh Amendment immunity. See Clark v. Tarrant County, Texas, 798 F.2d 736, 744 (5th Cir. 1986) ( o b s e r v i ng that in determining whether entity was entitled to Eleventh Amendment immunity, court must examine the entity and its powers and c h a r a c t e r istics under state law). We may affirm the MJ’s decision on any basis supported by the record. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). In Heck v. Hu m p h r e y , 512 U.S. 477, 486-87 (1994), the Supreme Court he l d that “in order to recover damages for allegedly unconstitutional conviction or imprisonm e nt , o r f o r o th e r h ar m c au s e d b y a ctions 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” or otherwise i n v a lidated by official action. (internal footnote omitted). To grant W a s hington the relief he seeks would imply the invalidity of his imprisonment or conviction; thus, his claims for damages are Heck -barred and not cognizable in § 1983. See Heck , 512 U.S. at 487. District attorneys and assistant district attorneys in Texas are agents of the state when acting in their prosecutoria l c a p a c ities. See , e.g. , Esteves v. Brock , 106 F.3d 674, 677-78 (5th Cir. 1997). As the MJ reasoned, Washington complained of acts taken by the ADAs in their prosecutorial c a pacities. Washington has not shown error in the MJ’s dismissal of his claims for damages against ADAs Bolin a n d R eiss as barred by the Eleventh Amendment. See Esteves , 106 F.3d at 677-78. Wa shington argues, in essence, that because Judges Reagin and Culver violated his civil rights, absolute judicial immunity should not have barred his claims. Judges have absolute immunity for all acts performed in the exercise of judicial functions, no matter the alleged m a g n i t u d e or mendacity of the acts. Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994)

. T h i s immunity may be

overcome only by showing that the acts were nonjudi c i a l or were taken in the complete absence of jurisdiction. Id. ; Mays v. Sudderth , 97 F.3d 107, 110-11 (5th Cir. 1996). Because Wash i n g t o n h a s alleged no facts that would support a 3 Case: 11-20600 Document: 00512050187 Page: 3 Date Filed: 11/12/2012No. 11-20600

finding that the judges he sued took any actions outside the court’s jurisdiction

or that their acts were nonjudicial, Washington’s claims against Judges Reagin and Culver were properly dismissed on grounds of absolute judicial immunity. See Boyd , 31 F.3d at 284-85. Washington’s request that we ord e r a stay of the proceedings pending exhaustion of state remedies is DENIED. To the extent that Washington raises on appeal new claims challenging the conditions of his confinement, those cl a i m s will not be addressed. See Leverette v. Louisville Ladder Co. , 183 F.3d 339, 342 (5th Cir. 199 9). The judgment is AFFIRMED. This court’s affirmance of the MJ’s dismissal o f W a s hington’s complaint counts as a strike for purposes of 28 U.S.C. § 1915(g). Se e A depegba v. H a m mons , 103 F.3d 383, 387 (5th Cir. 1996). Washington is cautioned t h a t i f he accumulates three strikes, he will no longer be allowed to proceed IFP in any civil action or appeal filed while he is detained or incarcerated in any facility unless he is in imminent danger of serious physical injury. See§ 1915(g). AFFIRMED; SANCTION WARNING ISSUED.

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