# United States Court of Appeals **for the Fifth Circuit**

No. 21-60442 Summary Calendar

Bobby Walker, Jr.,

Plaintiff—Appellant ,

versus

The State of Mississippi; An gel Myers McIlr ath; Justin Michael Lovorn; Robert P. Krebs, Judge , Defendants—Appellees

.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:20-CV-338

Before Smith, Stewart, and Graves, Circuit Judges

. Per Curiam: * Bobby Walker Jr., Mississippi pris oner # 200997006, has appealed the dismissal as frivolous of his civil rights action against the State of Mississippi, Jackson County District Attorney Angel McIlrath, Assistant District

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 6, 2021

Lyle W. Cayce Clerk Case: 21-60442 Document: 00516044473 Page: 1 Date Filed: 10/06/2021No. 21-60442

2 Attorney Justin Lovorn, and Circuit Judge Robert Krebs. See 28 U.S.C. § 1915(e)(2)(B)(i). The district court determined that the State of Mississippi was not amenable to suit under 42 U.S.C. § 1983 and that the individual defendants were absolutely i mmune from suit. Our review is for an abuse of discretion. See Butler v. S. Porter , 999 F.3d 287, 292 (5th Cir. 2021).

Walker asserts that he should ha ve been permitted to amend his complaint to substitute the County of Jackson for the State of Mississippi as a defendant. No error has been shown with respect to dismissal of the claims against the State of Mississippi, and there is no reason to believe that Walker can allege facts that would entitle him to relief from the County of Jackson. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690 (1978). Walker’s claims against the individual defendants call into question the validity of the bond revocation proc eedings and, therefore, implicate the rule in Heck v. Humphrey , 512 U.S. 477 (1994). Under Heck , to recover damages for actions whose unlawfulness would imply the invalidity of the adverse decisions with resp ect to his release on bond , Walker would have to prove that the decisions have “been reve rsed on direct appeal, expunged by executive order, declared invalid by a st ate tribunal authorized to make such determination, or called in to question by a federal court’s issuance of a writ of habeas corpus.” Id. The applicability of the doctrine of absolute immunity is ordinarily considered as a thre shold question before reaching the Heck analysis. See Boyd v. Biggers , 31 F.3d 279, 284 (5th Cir. 1994). Prosecutors have absolute immunity from suit for actions performed within the scope of their prosecutorial duties. Imbler v. Pachtman , 424 U.S. 409, 420-24, 431 (1976). “Prosecu torial immunity applies to the prosecutor’s actions in initiating the prosecution and in carrying the case through the judicial process.” Boyd , 31 F.3d at 285. “[ A]cts undertaken by Case: 21-60442 Document: 00516044473 Page: 2 Date Filed: 10/06/2021No. 21-60442

3 a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the cour se of his role as an ad vocate for the State, are entitled to the protections of absolute immunity.” Buckley v. Fitzsimmons , 509 U.S. 259, 273 (1993). Absolut e immunity does not extend to a prosecutor’s acts that are investigatory. See id. at 273-74. Walker’s speculative accusations, if true, do no t show that McIlrath or Lovorn acted outside the scope of their prosecutorial dut ies or that either of them acted as an investigator with respect to th e bond revocation proceedings. See id. “Judicial officers are entitled to absolute immunity from claims for damages arising out of acts performed in the exercise of their judicial functions.” Boyd , 31 F.3d at 284. To prevail, Walker mu st show that Judge Krebs’s actions were “nonjudicial in natu re” or that they were “taken in the complete absence of all jurisdiction.” See id.

Walker contended below that the co nditions set by Judge Krebs were too restrictive, that bond was improper ly revoked, and that the reinstatement of bond was improperly denied; he contended that Judge Krebs was unfairly biased. Walker complains on appeal th at, without having an opportunity to conduct discovery, he could not show how the judge and the prosecutors were biased and conspired against hi m because he was charged with a sex crime. “[J]udicial immunity is an immu nity from suit, not just from ultimate assessment of damages[, and it] is not ov ercome by allegations of bad faith or malice.” Mireles v. Waco , 502 U.S. 9, 11 (1991); Ballard v. Wall , 413 F.3d 510, 515 (5th Cir. 2005).

Walker concedes that the actions of Judge Krebs were judicial in nature. He contends instead that Judg e Krebs exceeded his authority because he is a judge of an “infer ior” court and that Judge Krebs lacked jurisdiction because he was not charged by a criminal complaint supported by an affidavit. These contentions are without merit. See Pryer v. Gardner , 247 So. 3d 1245, Case: 21-60442 Document: 00516044473 Page: 3 Date Filed: 10/06/2021No. 21-60442

4 1251 (Miss. 2018); Chapell v. State , 107 So. 3d 1003, 1006 (Miss. Ct. App. 2012). The judgment is AFFIRMED. Walker’s motion for a preliminary injunction is DENIED.

The district court’s dismissal of Walker’s complaint as frivolous counts as a single strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons , 103 F.3d 383, 387 (5th Cir. 1996), abrogated in part on other grounds, Coleman v. Tollefson , 575 U.S. 532, 537 (2015). We WARN Walker that if he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarc erated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). Case: 21-60442 Document: 00516044473 Page: 4 Date Filed: 10/06/2021