* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-60845

Summary Calendar

WILMER LOUIS SPENCE, JR.,

Plaintiff-Appellant,

versus

JIM HOOD, District Attorney; SANDRA N. WILLIS, Circuit Clerk;

AMY CUNNINGHAM, Deputy Circuit Clerk; CHICKASAW COUNTY BOARD OF

SUPERVISORS, President; CHRISTINE B. TATUM, Law Clerk,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:03-CV-200-D-A 

--------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Wilmer Louis Spence, Jr., Mississippi inmate # K8153, seeks

leave to proceed in forma pauperis (“IFP”) in his appeal of the

dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged

a violation of his right of access to the court. Spence’s IFP

motion is construed as a challenge to the district court’s

certification that his appeal is not taken in good faith. Baugh

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
No. 04-60845

-2-

Our inquiry into Spence’s good faith is limited to the

district court’s reasons for the certification; we consider the

IFP motion to determine “whether the appeal involves legal points

arguable on their merits (and therefore not frivolous).” Howard

v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotations

and citations omitted); Baugh, 117 F.3d at 202.

Spence asserts that the defendants are not entitled to

qualified immunity and that the district court erred by sua

sponte invoking the qualified immunity defense and by dismissing

his complaint on summary judgment without notice, prior to

discovery, and without affording him an opportunity to amend. 

Spence’s complaint was dismissed for failure to state a claim; we

review such dismissals de novo. Clay v. Allen, 242 F.3d 679, 680

(5th Cir. 2001). 

Spence does not refute the district court’s conclusions that

the defendants were entitled to absolute judicial, prosecutorial,

and quasi-judicial immunity, nor does he demonstrate that he

alleged the violation of a constitutional right against the Board

of Supervisors. Accordingly, Spence has not shown that his

appeal involves “legal points arguable on their merits.” Howard,

707 F.2d at 220; see FED. R. APP. P. 28(a)(9)(A); Grant v.

Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Yohey v. Collins, 985

F.2d 222, 225 (5th Cir. 1993). Spence’s motion for leave to

proceed IFP is denied. See Baugh, 117 F.3d at 202.
No. 04-60845

-3-

Because the merits of Spence’s appeal are “inextricably

intertwined with the certification decision,” we may examine the

issue whether Spence’s appeal should be dismissed. See Baugh,

117 F.3d at 202. Spence’s pro se status entitles him to a

liberal interpretation of his arguments. Haines v. Kerner, 404

U.S. 519, 520 (1972). 

Spence’s allegations that he was denied an appeal, counsel,

IFP status, and transcripts in criminal proceedings, if proven,

would implicate the validity of his conviction. These claims are

not cognizable under § 1983 because Spence has not established

that the validity of his conviction has been cast into doubt. 

See Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (citing

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). 

Spence’s allegations that the state judges denied his outof-time criminal appeal and his motions for leave to proceed IFP,

for appointment of counsel, and for documents at government

expense concern judicial functions, which are protected by the

doctrine of absolute judicial immunity. Boyd v. Biggers, 31 F.3d

279, 284 (5th Cir. 1994); Krueger, 66 F.3d at 76-77. Likewise,

the former district attorney is entitled to prosecutorial

immunity because the § 1983 allegations concerned his role as a

State advocate. See id. at 77. 

The remaining individual defendants are entitled to

qualified immunity from § 1983 liability for the routine duties

of which Spence complained. See Clay, 242 F.3d at 682. Spence,
No. 04-60845

-4-

however, must demonstrate a violation of his constitutional

rights. Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995). Spence

cannot establish a violation of his right of access to the court

because he has not alleged an actual injury. See Lewis v. Casey,

518 U.S. 343, 349 (1996). 

Spence cannot make the showing required to establish that

the Board of Supervisors violated his constitutional rights. 

See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984)

(en banc). Spence’s conclusional allegations of a conspiracy are

not sufficient to support a claim under § 1983. See Wilson v.

Budney, 976 F.2d 957, 958 (5th Cir. 1992). In addition, Spence’s

conclusional allegations do not establish liability on the part

of the defendants in their individual capacities. See Oliver v.

Scott, 276 F.3d 736, 741 (5th Cir. 2002).

Spence’s appeal has no arguable merit, is frivolous, and is

dismissed. 5TH CIR. R. 42.2; see Howard, 707 F.2d at 219-20. The

dismissal by the district court of Spence’s complaint and the

dismissal of this appeal as frivolous each count as a strike

under 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d 383,

385-87 (5th Cir. 1996). Spence is cautioned that if he

accumulates three strikes under § 1915(g), he will not be allowed

to proceed IFP in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is under

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

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING

ISSUED.