* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 28, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-30224

c/w No. 04-30456

_______________________

LAWRENCE SPIKES; HENRY S. JONES, SR.;

STARLA TRIPLETT JONES;

JOHNNIE RAY CARPENTER,

Plaintiffs-Appellees,

versus

BENJI PHELPS, ETC.; ET AL.,

Defendants,

TERRY REEVES, Individually and in his

Official Capacity as District Attorney

of Winn Parish,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 3:-CV-642

Before REAVLEY, JONES, and GARZA, Circuit Judges.

EDITH H. JONES, Circuit Judge: *

Winn Parish District Attorney Reeves attempts an

interlocuto ry appeal to vindicate his claim of absolute

prosecutorial immunity from a suit filed against him in his

official capacity. Reeves was sued under numerous state and

federal authorities because he allegedly misused the power of his2

office to charge and imprison supporters of a local political

candidate at a critical time, preventing them from campaigning and

voting for their ca ndidate. The district court dismissed claims

filed against Reeves individually, but it refused to dismiss claims

against Reeves in his official capacity.

The liability, if any, flowing from a federal civil

rights suit based on official capacity, runs against the local

government entity, not the individual defendant. M onell v. Dept of

Social Services

, 436 U.S. 658, 691, 98 S. Ct. 2018 n.55 (1978).

While interlocutory appellate jurisdiction is granted to preserve

individual government officials’ immunity or the state’s sovereign

immunity from suit, local government enti ties enjoy no immunity

that would justify in terlocutory appeal. L eatherman v. Tarrant

County Narcotics and Coordination Unit

, 507 U.S. 163, 166, 113

S. Ct. 1160 (1993). Moreover, Reeves’s assertion of absolute

prosecutorial immunity does not confer appellate jurisdiction, as

this court has held such immunity unavailable in an official

capacity suit against a Louisiana district attorney. B urge v.

Parish of St. Tammany

, 187 F.3d 452, 467-68 (5th Cir. 1999) (citing

Leatherman

, supra ). We therefore lack jurisdiction over potential

defense s that Reeves has asserted in the official capacity suit,

e.g.

, whether there exists a c onstitutional claim for malicious

prosecution ( see Castellano v. Fragozo

, 352 F.3d 939 (5th Cir.

2003) (en banc)), and whether plaintiff s sufficiently pled the

existence of municipal custom or policy.1 Esteves is reconcilable with an earlier Texas case, Crane v. Texas

,

766 F.2d 193 (5th Cir. 1985), based on the different function that the district

attorney was performing in Crane (setting county policy for the authorization of

misdemeanor warrants) as opposed to Esteves (enforcing Texas criminal law by

prosecution). Thus, Texas district attorneys are shielded by Eleventh Amendment

immunity for acts performed as state officers in the scope of criminal prosecution, but they are not so shielded when they act with respect to local policies.

3 Insofar as Reeves asserts that he acted on behalf of the

state, rather than the parish, he raises an Eleventh Amendment

state sovereign immunity defense. Over this claim, we have

interlocutory jurisdiction. M itchell v. Forsyth

, 472 U.S. 511, 105

S. Ct. 28 06 (1985). Reeves relies on footnote 8 in E steves v.

Brock

, 106 F.3d 674 (5th Cir. 1997), in which this court noted that

a Texas prosecu tor acting in her official capacity to prosecute

crime is a state actor protected by the Eleventh Amendment from

§ 1983 damages. Esteves should be viewed as an interpretation of

Texas law concerning the role of a district attorney within the

framework of state government. 1 But this court has held, contrary

to Esteves

, and based on Louisiana law, that a parish district

attorney is not enti tled to Eleventh Amendment immunity. S ee

Hudson v. City of New Orleans , 174 F.3d 677, n.1 (5th Cir. 1999);

Burge

, 187 F.3d at 466-67. Reeves’s Eleventh Amendment immunity

claim thus fails.

Finally, Reeves asserts immunity against state law claims

a gainst him on the ground that Louisiana does not distinguish

between personal and official capacity suits a g ainst district

attorneys who have acted with in the scope of their prosecutorial

duties. Reeves cites Knapper v. Connick , 681 So. 2d 944 (La.4

1996), which does not squarely address this issue. Nevertheless,

the Louisiana courts have upheld Reeves’s contention in two other

cases. S inclair v. Louisiana Dept. of Public Safety and

Corrections

, 769 So. 2d 1270 (La. App. 2000); Connor v. Reeves

, 649

So. 2d 80 3 (La. App. 1995). Accordingly, the state law claims

against Reeves must be dismissed.

For the foregoing reasons, the appeal is dismissed in

part, and the orders of the district court are affirmed in part and

reversed in part, and the case is remanded for further proceedings

consistent herewith.

APPEA L DISMISSED IN PART, ORDERS AFFIRMED IN PART and

REVERSED IN PART, and CASE REMANDED.