UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1292

Conference Calendar

DANNY R. GRAVES,

Plaintiff-Appellant,

versus

JUDGE JACK HAMPTON, ET AL.,

Defendants-Appellees.

CONSOLIDATED WITH

_____________________

No. 92-9114

Conference Calendar

_____________________

RONALD HARLAN EDMONDS,

Plaintiff-Appellant,

versus

MICHAEL FITZPATRICK, Warden,

FCI Big Spring, Texas, ET AL.,

Defendants-Appellees.

CONSOLIDATED WITH

_____________________

No. 93-1432

Conference Calendar

_____________________

CHRIS LOPEZ,

Plaintiff-Appellant,

versus

BRANCH T. COE, M.D.,

Hale County Jail Physician,

Defendant-Appellee.1 For a detailed discussion, including a statistical

analysis, see the Forew ord to the Texas Tech Law Review, Vol. 24

(1993), written by our colleague Judge Jerry E. Smith.

2 United States Courts of Appeals typically maintain

records on a statistical year beginning on July 1 and continuing

until the following June 30. Appeals filed in the Fifth Circuit as

of June 30 of the indicated yea r were as follows: 1989-4,743;

1990-5,052; 1991-5,598; 1992-6,421; 1993-6,695. "[P]risoner p ro se

cases have consistently comprised approximately one quarter of the

docket of this court." W ilson v. Barrientos

, 926 F.2d 480, 482

(5th Cir. 1991). Although authorized 17 active judges, for the

past three years we have had 14 or less active judges. For the

past 20 months we have had 13 active judges.

2 Appeals from the United States District Court

For the Northern District of Texas

( August 26, 1993 )

Before POLITZ, Chief Judge, WIENER and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:

We have consolidated the captioned cases for appeal and

publish our disposition thereof for two purposes: (1) to inform

the bench, bar, and public of the adoption of our Conference

Calendar procedure in this circuit and to explain its opera tion; 1

and (2) to clarify the basis for and effect of the dismissal of in

forma pauperis filings under 28 U.S.C. § 1915(d).

Conference Calendar

The inexorable in crease in appeals has mandated a constant

review and refinement of appellate procedures in order to maintain

an acceptable level of timely dispositions. 2 One refinement has

been the introduction of the Conference Calendar in which a panel3

of judges meets, typically for four days, and resolves an average

of 30 cases per day. Prior to the collegial conference, the panel

members read the briefs and a bench memorandum prepared by staff

counsel in each of the cases to be decided at conference. Each

panel member personally r eviews the records of one-third of the

day's cases and takes the lead in the discussion of those cases

following a presentation by staff counsel. Prior to the conference

a draft of the proposed per curiam opinion is reviewed and revised,

as needed, by the judge responsible for the record analysis. The

panel thoroughly discusses the appellate issues and resolves same,

making such changes as may be appropriate in the proposed opinion.

With the aid of modern te chnology, all revisions are promptly

completed and the opinions are approved, signed, and filed with the

clerk of court.

Our Conference Calendar practice is now in its second year of

operation. We plan sessions on alternate months and anticipate

average dockets of 120 cases per session. Every active judge on

our court has served on at least one Conference Calendar panel and

most have served on two or more. We are unanimous in our

conclusion that cases decided on the Conference Calendar receive a

fully adequate allocation of quality judicial time and attention.

Graves - No. 93-1292

Danny R. Graves appeals the dismissal purs uant to 28 U.S.C.

§ 1915(d) of his section 1983 civil rights claim. We modify and

affirm.3 Neitzke v. Williams , 490 U.S. 319, 325 (1989).

4 Denton v. Hernandez , 112 S.Ct. 1728 (1992).

5 Neitzke , 490 U.S. at 327.

6 Mitchell v. McBryde , 944 F.2d 229 (5th Cir. 1991).

4 Graves, proceeding in forma pauperis

, filed suit against Judge

Jack Hampton, John Vance, the District Attorney for Dallas County,

and Harr is M. Samuel, a private citizen, alleging false

imprisonment as a result of his prosecution and conviction for

forgery. Finding all defendants immune from suit the district

court invoked section 1915(d) and dismissed the compl aint as

frivolous.

Dismissal of an i n forma pauperis petition under 28 U.S.C

.

§ 1915(d) is appropriate if the district court is "satisfied that

the action is frivolous or malicious." An action is frivolous if

it "lacks an arguable basis either in law or in fact." 3 We review

a district court's section 1915(d) dismissal utilizing the abuse of

discretion standard. 4

A claim is based upon an indisputably meritless legal theory

if the defendants are immune from suit. 5 Graves advances three

such claims. Judicial officers are entitled to absolute immunity

from damage claims arising out of acts performed in the exercise of

their judicial functions. 6 The claims against Judge Hampton are

based upon his actions during Graves' c riminal trial S Q actions

well within the ambit of the judge's absolute immunity.

A criminal prosecutor also enjoys absolute immunity from7 Imbler v. Pachtman , 424 U.S. 409 (1976).

8 Y oung v. Biggers

, 938 F.2d 565 (5th Cir. 1991), c ert

. denied , 112 S.Ct. 1485 (1992).

9 Graves also alleges that Vance used tampered evidence. A

prosecutor is immune, however, even if accused of knowingly using

perjured testimony. M cCoy v. Gordon

, 709 F.2d 1060 (5th Cir.

1983); Henzel v. Gerstein , 608 F.2d 654 (5th Cir. 1979).

10 Briscoe v. LaHue , 460 U.S. 325 (1983); Young.

11 Neitzke

.

1 2 Graves confuses a section 1915(d) dismissal as frivolous

with dismissals for failure to state a claim u nder Fed.R.Civ.P.

12(b)(6). Although "[u]nder Rule 12(b)(6), a plaintiff with an

5 section 1983 damage claims for presenting the state's case. 7 This

immunity applies to the prosecutor's actions in initiating

prosecution and in carrying the case through the judicial process. 8

Graves' claims against Vance are base d on Vance's prosecution of

Graves for forgery, actions obviously within the scope of the

prosecutorial immunity. 9

Finally, the district court dismissed Graves' claims against

Samuel because Graves did not allege any facts which would make

Samuel a state actor. Graves alleges only that Samuel made a false

statement against him. A witness is entitled to absolute immunity

f rom section 1983 damage claims, even if it is alleged tha t the

witness committed perjury. 10

Because all three defendants are immune from suit, dismissal

under secti on 1915(d) was proper; Graves' claims against these

defendants have no arguable basis in law. 11 Graves insists,

however, that the court e rred in not allowing him to amend his

complaint to cure any defects. 12arguable claim is ordinarily accorded notice of a pending motion to

dismiss for failure to state a claim and an oppor tunity to amend

the complaint before the motion is ruled upon," section 1915(d)

provides no such procedural protections. N eitzke

, 490 U.S. at

329-30.

13 "In reviewing a § 1915(d) dismissal for abuse of

discretion, it would be appropriate for the court of appeals to

consider, among other things, whether the plaintiff was proceeding

pro se , whether the court inappropriately resolved genuine issues

of di sputed fact, whether the court applied erroneous legal

conclusions, whether the court has provided a statement explaining

the dismissal that facilitates 'intelligent appellate review,' and

whether the dismissal was with or without prejudice." 112 S.Ct.

at 1734 (citations omitted).

14 Id

.

15 See Fed.R.Civ.P. 41(b) which provides in pertinent part:

Unless the cour t in its order for dismissal otherwise

spe cifies, a dismissal under this subdivision and any

dismissal not provided for in this rule, other than a

dismissal for lack of jurisdiction, for improper venue,

or for failure to join a party under Rule 19, operates as

6 In Denton

, the Court noted that among the pertinent factors in

determining whether a district court has abused its discretion in

dismissing a complaint under section 1915(d), is the inquiry

whether the dismissal is with or without prejudice. 13 "[I]f it

appears that frivolous factual allegations could be remedied

through more specific pleading, a court of appeals reviewing a

section 1915(d) d isposition should consider whether the District

Court abused its discretion by dismissing the complaint with

prejudice or without leave to amend." 14

The judgment dismissing Graves' complaint contains no language

advising whet her the dismissal is with or without prejudice.

Although the general rule is that a dismissal is with prejudice

unless otherwise specified, 15 the application of that general rubrican adjudication on the merits.

16 112 S.Ct. at 1734.

1 7 If such were the case, D enton 's d irection that the

appellate court reviewing a section 1915(d) dismissal should

consider whether the dismissal was with or without prejudice would

be meaningless.

18 Ali v. Higgs , 892 F.2d 438 (5th Cir. 1990).

7 to section 1915(d) dismissals is by no means certain.

In Denton , the Supreme Court noted:

Because a § 1915(d) dismissal is not a dismissal on the

merits, but rather an exercise of the court's discretion

under the in forma pauperis statute, the dismissal does

not prejudice the filing of a paid complaint making the

same allegations. It could, however, have a r es judicata

effect on frivolousness determinations for future in

forma pauperis petitions. 16

This suggests that section 1915(d) dismissals generally are to be

without prejudice. Thus, when a section 1915(d) dismissal is

silent, we will presume t hat the dismissal is without prejudice.

This doe s not mean, however, that a section 1915(d) dismissal

should never be with prejudice. 17 Should the court determine to

dismiss with prejudice, appropriate reasons must be assigned. For

example, if it is clear from the face of the complaint that the

claims asserted are subject to an obvious meritorious defense, such

as a peremptory time bar, dismissal with prejudice would be

appropriate, for no amendment or subsequently paid fil ing could

overcome the fatal defe ct. 18 Dismissal with prejudice a lso would

be appropriate if the plaintiff has been given an opportunity to

expound on the factual allegations by way of a Watson19 Watson v. Ault , 525 F.2d 886 (5th Cir. 1976).

2 0 S pears v. McCotter

, 766 F.2d 179 (5th Cir. 1985). For a

discussion of the scope and purposes of a Spears hearing, see

Wilson v. Barrientos

, 926 F.2d 480 (5th Cir. 1991). Other

procedures may also be available for the district court to "pierce

the veil of the complaint's factual allegations." N eitzke

, 490

U.S. at 327. For example, we have cited with approval a procedure

develop ed by the Tenth Circuit "order[ing] that prison officials

investigate the facts surrounding a civil rights suit by inmates to

construct 'an administrative record

. . . to enable the trial court

to

. . . make a determination [of frivolity].'" C ay v. Estelle

, 789 F.2d 318, 3 23 n.4 (5th Cir. 1986) (citing M artinez v. Aaron

, 570 F.2d 317 (10th Cir. 1978)).

2 1 W hit tington v. Lynaugh , 842 F.2d 818 (5th Cir.), c ert

. denied , 488 U.S. 840 (1988) (following S pears hearing claim was

dismissed per section 1915(d) because plaintiff did not "advance

the slightest factual support for his allegations"); see Parker v.

Fort Worth Police Dept.

, 980 F.2d 1023 (5th C ir. 1993) (abuse of

discretion found in section 1 9 15(d) dismissal based on

consideration of the petition only; court should have granted leave

to amend); but see Murphy v. Kellar , 950 F.2d 290 (5th Cir. 1992)

(following a Spears hearing, court allows pro se petitioner to

conduct limited discovery to more adequately state his claim).

22 For example, claims of infringement of a legal interest

which clearly does not exist would fall into this category. See

Neitzke , 490 U.S. at 327.

8 questionnaire 19 or orally via a Spears hearing, 20 but does not assert

any facts which would support an arguable claim. 21 Finally, claims

which otherwise clearly have no arguable basis in law, 22 thereby

negating a rectification by amendment, usually should be dismissed

with prejudice.

Graves' claims were dismissed without prejudice. Because his

claims clearly lack an arguable basis in law, the trial court's

dismissal should have been with prejudice. As so modified, the

judgment of the district court is AFFIRMED.23 Because federal perso nnel are the only defendants, the

action is properly brought under the eighth amendment itself.

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

24 Varnado v. Lynaugh , 920 F.2d 320 (5th Cir. 1991).

25 Id. at 321 (citation omitted).

9 Edmonds - No. 92-9114

Ronald Harlan Edmonds invokes 42 U.S.C. § 1983 and complains

that his eighth amendment rights were violated by incompetent

medical personnel in the federal prison. 23 It is firmly established

that negligent or mistaken medical treatment or judgment does not

implicate the eighth amendment and does not provide the basis for

a civil rights action. 24 It is irrefutable that Edmond's claim has

no arguable basis in law and it is therefore subject to dismissal

with prejudice. The trial court's judgment is accordingly modified

to so provide and, as modified, is AFFIRMED.

Lopez - No. 93-1432

Chri s Lopez also complains of inadequate medical treatment.

To state a cognizable claim under 42 U.S.C. § 1983 a prisoner must

allege and be able to prove that the d efendants exhibited

"deliberate indiffere nce to his serious medical needs." 2 5 Lopez

complains only of negligence and malpractice. His claims

manifestly have no arguable basis in law and must be dismissed.

T hey should be dismissed with prejudice and, modified to reflect

such, the judgment of the district court is AFFIRMED.