[boyd.008] 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-7430

Summary Calendar

_____________________

JOHN BOYD,

Plaintiff-Appellant,

v.

NEAL B. BIGGERS, JR., ET AL.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________

(August 26, 1994)

Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

PER CURIAM:

Mississippi State Penitentiary inmate John L. Boyd appeals

the district court's dismissal with prejudice of his pro se and

in forma pauperis § 1983 complaint. We affirm as to two

defendants based on the doctrine of absolute immunity, and as to

the remaining defendants based on the Supreme Court's recent

decision in Heck v. Humphrey, 114 S. Ct. 2364 (1994)
[boyd.008] 2

I. BACKGROUND

On January 8, 1981, John L. Boyd (Boyd) and his cousin,

Johnny B. Boyd, were charged with the murder of Bobby Rogers. In

1981, Boyd was tried, convicted, and sentenced to life

imprisonment. The evidence showed that Boyd's cousin fired the

fatal shot and that Boyd struck the victim with an axe handle. 

Before the trial of Boyd's cousin in 1984, new evidence was

discovered that supported Boyd's contention that he and his

cousin had acted in self-defense. This evidence was admitted at

the trial of Boyd's cousin, and he was convicted of the lesser

offense of manslaughter and sentenced to twenty years

imprisonment. Boyd petitioned for habeas corpus based on the

newly discovered evidence, and in 1989 the federal district court

granted Boyd's petition and ordered a new trial. We reversed the

district court's judgment, reasoning that newly discovered

evidence pertaining to the guilt or innocence of a state prisoner

cannot support federal habeas corpus relief. Boyd v. Puckett,

905 F.2d 895 (5th Cir.), cert. denied, 498 U.S. 988 (1990).

On August 6, 1991, Boyd used a form designed for prisoner

complaints concerning conditions of confinement to file an action

pursuant to 42 U.S.C. § 1983 in federal district court alleging

inter alia that Judge Neal Biggers (a state judge at the time of

the events at issue here), Prosecutor John Young, Ronald Windsor

(Boyd's court-appointed counsel), Sheriff Edwin Coleman and

Investigator Larry Brinkley conspired to violate his

constitutional rights by causing him to be convicted and
 

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

[boyd.008] 3

sentenced more severely than his cousin. In the blank left for

requested relief, Boyd asked for $10,000 in compensatory damages,

$10,000 in punitive damages, $10,000 in mental anguish damages,

and "any other relief this Court deems proper and adequate[] in

the foregoing matter." The case was referred to a magistrate

judge. On January 12, 1993, the magistrate judge held a Spears1

hearing to determine whether a non-frivolous basis for Boyd's §

1983 action existed. At the Spears hearing, Boyd stated that by

filing this suit he was seeking to attack the constitutionality

of his state court conviction.

In a written report filed on January 21, 1993, the

magistrate judge recommended that Boyd's claim be dismissed with

prejudice. The magistrate judge concluded that Judge Biggers and

Prosecutor Young were absolutely immune from suit under § 1983

for the conduct alleged by Boyd, that Boyd's defense attorney was

not a state actor for § 1983 purposes, and that Boyd's

allegations against Sheriff Coleman and Investigator Brinkley

were merely conclusory and failed to state a claim under § 1983. 

The magistrate judge also advised Boyd to exhaust his state

remedies if he wished to pursue a claim of ineffective assistance

against his defense counsel. On June 18, 1993, the district

court adopted the magistrate judge's report and recommendation in

its entirety and entered final judgment dismissing Boyd's

complaint with prejudice.
 

2 The Supreme Court applied its decision in Heck to the

litigants in that case. Thus, under James B. Beam Distilling Co.

v. Georgia, 111 S. Ct. 2439 (1991), we must apply Heck

retroactively to the litigants in the instant case. Luce v.

First Equip. Leasing Corp. (In re Luce), 960 F.2d 1277, 1281 &

n.5 (5th Cir. 1992).

[boyd.008] 4

II. STANDARD OF REVIEW

Although the district court did not expressly state that

Boyd's claims were "frivolous" under 28 U.S.C. § 1915(d), we

treat the court's determination as a § 1915(d) dismissal because

the court dismissed his complaint with prejudice prior to

service. Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). 

Dismissal of an in forma pauperis complaint is appropriate if the

district court determines that it is frivolous, i.e., that "it

lacks an arguable basis in either law or fact." Neitzke v.

Williams, 490 U.S. 319, 325 (1989). A complaint is legally

frivolous if it is premised on an "indisputably meritless legal

theory." Id. at 327. We review a district court's § 1915(d)

dismissal using an abuse of discretion standard. Denton v.

Hernandez, 112 S. Ct. 1728, 1734 (1992).

III. DISCUSSION

A. HECK V. HUMPHREY

We first consider the impact of Heck v. Humphrey, 114 S. Ct.

2364 (1994), decided during the pendency of this appeal, on the

instant case.2 For reasons that will be explained in Part III.B,

infra, we limit our discussion of Heck to the dismissal of Boyd's
 

3 This circuit has long followed the same rule that the

Seventh Circuit applied in Heck. Interpreting the Supreme

Court's opinions in Wolff v. McDonnell, 418 U.S. 539 (1974), and

Preiser v. Rodriguez, 411 U.S. 475 (1973), we concluded that

"habeas corpus is the exclusive initial cause of action where the

basis of the claim goes to the constitutionality of the state

court conviction." Fulford v. Klein, 529 F.2d 377, 381 (5th Cir.

1976), adhered to en banc, 550 F.2d 342 (5th Cir. 1977) (en banc)

(per curiam); see also Meadows v. Evans, 529 F.2d 385, 386 (5th

[boyd.008] 5

claims against Windsor, Sheriff Coleman, and Investigator

Brinkley.

The facts of Heck are strikingly similar to those presented

in the instant case. The § 1983 plaintiff in that case, Roy

Heck, was convicted of involuntary manslaughter in Indiana state

court and sentenced to a fifteen-year term of imprisonment. Id.

at 2368. He filed his § 1983 lawsuit in federal court while his

appeal from his conviction was pending in the Indiana courts,

alleging that he had been the victim of a conspiracy by county

prosecutors and a police investigator to destroy exculpatory

evidence and to use an illegal voice identification procedure at

his trial. Id. The district court dismissed Heck's § 1983

action because the issues raised in that action directly

implicated the legality of Heck's confinement. Id. While Heck's

appeal to the Seventh Circuit was pending, the Indiana Supreme

Court affirmed his conviction. Id. The Seventh Circuit affirmed

the dismissal of Heck's § 1983 action, following the rule that

[i]f, regardless of the relief sought, the [§ 1983]

plaintiff is challenging the legality of his conviction, so

that if he won his case the state would be obliged to

release him even if he hadn't sought that relief, the suit

is classified as an application for habeas corpus and the

plaintiff must exhaust his state remedies, on pain of

dismissal if he fails to do so.3
Cir. 1976), adhered to en banc, 550 F.2d 345 (5th Cir. 1977) (en

banc) (per curiam), cert. denied, 434 U.S. 969 (1977). We have

strictly applied the Fulford/Meadows doctrine, instructing the

district courts not to address the merits of § 1983 claims that

must first be exhausted through habeas challenges "even if it

plainly appear[s] that [the] § 1983 claims would be foreclosed as

a matter of law." Williams v. Dallas County Comm'rs, 689 F.2d

1212, 1215 n.2 (5th Cir. 1982), cert. denied, 461 U.S. 935

(1983).

[boyd.008] 6

Heck v. Humphrey, 997 F.2d 355, 357 (7th Cir. 1993), aff'd, 114

S. Ct. 2364 (1994).

Although the Supreme Court affirmed the judgment in Heck, it

rejected the analysis employed by the Seventh Circuit and by our

court in cases such as Fulford v. Klein, 529 F.2d 377 (5th Cir.

1976), adhered to en banc, 550 F.2d 342 (5th Cir. 1977) (en banc)

(per curiam), and Meadows v. Evans, 529 F.2d 385 (5th Cir. 1976),

adhered to en banc, 550 F.2d 345 (5th Cir. 1977) (en banc) (per

curiam), cert. denied, 434 U.S. 969 (1977). The Court adhered to

its "teaching that § 1983 contains no exhaustion requirement

beyond what Congress has provided." Heck, 114 S. Ct. at 2370. 

The Court agreed, however, that Heck could not proceed with his §

1983 action. Using the common law tort of malicious prosecution

as an analogy to aid in interpretation of § 1983, the Court

concluded that

in order to recover damages for allegedly unconstitutional

conviction or imprisonment or for other harm caused by

actions 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,

expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called

into question by a federal court's issuance of a writ of

habeas corpus, 28 U.S.C. § 2254. A claim for damages

bearing that relationship to a conviction or sentence that

has not been so invalidated is not cognizable under § 1983.
[boyd.008] 7

Id. at 2372. As the Court remarked a little later in the

opinion,

We do not engraft an exhaustion requirement upon § 1983, but

rather deny the existence of a cause of action. Even a

prisoner who has fully exhausted available state remedies

has no cause of action under § 1983 unless and until the

conviction or sentence is reversed, expunged, invalidated,

or impugned by the grant of a writ of habeas corpus. . . . 

[A] § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue

until the conviction or sentence has been invalidated.

Id. at 2373-74.

Although the Heck Court rejected part of the reasoning

underlying the Fulford/Meadows doctrine, the analysis required by

Heck is similar in certain respects to the analysis we have long

used in this circuit when a state prisoner brings a § 1983 action

in federal district court. Under Heck, when a state prisoner

brings a § 1983 action seeking damages, the trial court must

first ascertain whether a judgment in favor of the plaintiff in

the § 1983 action would necessarily imply the invalidity of his

conviction or sentence. Id. at 2372. If it would, the prisoner

must show that his conviction has been "reversed, expunged,

invalidated, or impugned by the grant of a writ of habeas

corpus," id. at 2373, in order to state a claim. Dismissal of

the § 1983 action under 28 U.S.C. § 1915(d) is appropriate, postHeck, because the plaintiff's action has been shown to be legally

frivolous.

The validity of Boyd's conviction and sentence has yet to be

undermined; we proceed to evaluate the claims raised in his §

1983 action to determine whether they challenge the
 

4 It could be argued that Boyd amended his § 1983 complaint

at the Spears hearing to request the relief of immediate or

speedier release from his incarceration. This is the very

practice held impermissible by the Court in Preiser; as the Court

held, "when a state prisoner is challenging the very fact or

duration of his physical imprisonment, and the relief he seeks is

a determination that he is entitled to immediate release or a

speedier release from that imprisonment, his sole federal remedy

is a writ of habeas corpus." Preiser, 411 U.S. at 500. As a

result, placing such an interpretation on Boyd's statement at the

hearing would not change our conclusion: Boyd's § 1983 action

must be dismissed because his claim would then be cognizable only

in habeas corpus.

[boyd.008] 8

constitutionality of his conviction or sentence. We conclude

that they do. Some of his allegations amount to claims of

ineffective assistance of counsel. If proved, these claims would

call Boyd's conviction into question under cases such as

Strickland v. Washington, 466 U.S. 668 (1984). Liberally

construed, his complaint also alleges that Sheriff Coleman and

Investigator Brinkley violated Boyd's rights by withholding

exculpatory evidence obtained during the investigation of Bobby

Rogers' murder. If proved, these claims would call Boyd's

conviction into question under Brady v. Maryland, 373 U.S. 83

(1963), and its progeny. Indeed, Boyd stated, "My main thing

about this here, I really wasn't trying to sue nobody about this

here. I don't want nothing, money or nothing. I mostly want my

freedom."4 We conclude that all of his claims come within the

ambit of Heck and are therefore frivolous under § 1915(d).

The only remaining question is whether the district court

properly dismissed the complaint with prejudice as to Windsor,

Sheriff Coleman, and Investigator Brinkley. We note that the

district court in Heck dismissed Heck's complaint without
 

5 Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

[boyd.008] 9

prejudice, Heck, 114 S. Ct. at 2368; the Seventh Circuit affirmed

that judgment; and the Supreme Court affirmed the Seventh

Circuit's judgment. The question whether the logic of Heck, as

distinguished from its result, would permit dismissal with

prejudice of a state prisoner's § 1983 action challenging the

validity of his conviction or sentence has been settled, albeit

without discussion, by another panel of this court in Stephenson

v. Reno, --- F.3d ---, slip op. at 5574 (5th Cir. Aug. 8, 1994)

(No. 94-30080) (Conference Calendar). The Stephenson panel

applied Heck to a federal prisoner who had brought a Bivens5

action asserting a myriad of alleged constitutional violations in

connection with his conviction. Id., slip op. at 5574-75. The

district court had adhered to pre-Heck practice, holding the suit

in abeyance pending exhaustion of Stephenson's post-conviction

remedies. Id., slip op. at 5575. The panel held that Heck

applies to Bivens actions just as it does to § 1983 actions,

vacated the order holding the suit in abeyance, and remanded the

case for dismissal with prejudice. Id., slip op. at 5575-76. 

Given Stephenson's interpretation of Heck, we must affirm the §

1915(d) dismissal with prejudice of Boyd's § 1983 complaint as to

Windsor, Coleman, and Brinkley.

B. ABSOLUTE IMMUNITY

From the foregoing discussion, it appears that we could also

affirm the dismissal of Boyd's claims against Judge Biggers and

Prosecutor Young under Heck. We believe, however, that it
[boyd.008] 10

remains appropriate for district courts to consider the possible

applicability of the doctrine of absolute immunity, as did the

magistrate judge in the instant case, as a threshold matter in

making a § 1915(d) determination. As the Supreme Court has

stated, "the essence of absolute immunity is its possessor's

entitlement not to have to answer for his conduct in a civil

damages action." Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). 

Thus, the Court has described immunity as a threshold question,

to be resolved as early in the proceedings as possible. See

Siegert v. Gilley, 111 S. Ct. 1789, 1793 (1991) ("One of the

purposes of immunity, absolute or qualified, is to spare a

defendant not only unwarranted liability, but unwarranted demands

customarily imposed upon those defending a long drawn out

lawsuit."). Because absolute immunity is properly viewed as

"immunity from suit rather than a mere defense to liability,"

Mitchell, 472 U.S. at 526, it is appropriate for the district

courts to resolve the question of absolute immunity before

reaching the Heck analysis when feasible. If a defendant is

dismissed on absolute immunity grounds, it becomes clear that the

§ 1983 plaintiff will never have a claim against that defendant

based on the particular facts alleged, even if the plaintiff is a

state prisoner who eventually satisfies the precondition to a

valid § 1983 claim under Heck. We believe this approach best

serves the purposes underlying the absolute immunity doctrine.

Turning to the instant case, we find that Boyd's allegations

regarding Judge Biggers and Prosecutor Young are somewhat
 

6 Boyd alleged that Judge Biggers was "without authorization

to accept the Jury Findings . . . that would shock the human

sensibilities [and] without ascertai[n]ing all of the elements of

such a case and the validity thereof." He alleged that

Prosecutor Young "undoubtedly wante[d] to clear all Court

Dockets, Old Warrants, Files and cases by convicting plaintiff

without ascertai[n]ing the significan[ce] of plaintiff['s]

evidence put before the court in plaintiff['s] behalf, or whether

accurate information would have made any diff[e]rence in the

court's decision."

[boyd.008] 11

confusing, but when his complaint is taken in conjunction with

his statements at his Spears hearing, it appears that Boyd was

simply contending that he was not guilty of murder and that

Biggers and Young should have prevented his wrongful conviction.6

Judicial officers are entitled to absolute immunity from

claims for damages arising out of acts performed in the exercise

of their judicial functions. Graves v. Hampton, 1 F.3d 315, 317

(5th Cir. 1993). The alleged magnitude of the judge's errors or

the mendacity of his acts is irrelevant. Young v. Biggers, 938

F.2d 565, 569 n.5 (5th Cir. 1991). Judicial immunity can be

overcome only by showing that the actions complained of were

nonjudicial in nature or by showing that the actions were taken

in the complete absence of all jurisdiction. Mireles v. Waco,

112 S. Ct. 286, 288 (1991); see Forrester v. White, 484 U.S. 219,

220-21 (1988) (holding that a state judge's dismissal of a

subordinate court employee is not a judicial act entitled to

absolute immunity). A judge's acts are judicial in nature if

they are "'normally performed by a judge'" and the parties

affected "'dealt with the judge in his judicial capacity.'" 

Mireles, 112 S. Ct. at 288 (quoting Stump v. Sparkman, 435 U.S.
[boyd.008] 12

349, 362 (1978)). Boyd does not complain of any actions taken by

Judge Biggers that were nonjudicial in nature, and his claims

against Judge Biggers were therefore properly dismissed with

prejudice as frivolous.

Criminal prosecutors also enjoy absolute immunity from

claims for damages asserted under § 1983 for actions taken in the

presentation of the state's case. Graves, 1 F.3d at 318. As the

Supreme Court recently reaffirmed:

[A]cts undertaken by the prosecutor in preparing for the

initiation of judicial proceedings or for trial, and which

occur in the course of his role as an advocate for the

State, are entitled to the protections of absolute immunity. 

Those acts must include the professional evaluation of the

evidence assembled by the police and appropriate preparation

for its presentation at trial . . . .

Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2615 (1993). 

Prosecutorial immunity applies to the prosecutor's actions in

initiating the prosecution and in carrying the case through the

judicial process. Graves, 1 F.3d at 318. This broad immunity

applies even if the prosecutor is accused of knowingly using

perjured testimony. Id. at 318 n.9; see also Brummett v. Camble,

946 F.2d 1178, 1181 (5th Cir. 1991) (concluding that state

prosecutors were absolutely immune from a § 1983 action

predicated on malicious prosecution), cert. denied, 112 S. Ct.

2323 (1992); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir.

1986) (en banc) ("[A] conspiracy between judge and prosecutor to

predetermine the outcome of a judicial proceeding, while clearly

improper, nevertheless does not pierce the immunity extended to

judges and prosecutors."). Boyd alleges no facts against
[boyd.008] 13

Prosecutor Young that would destroy Young's absolute immunity,

and his claims against Young were therefore properly dismissed

with prejudice as frivolous.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.