No. 00-40017 

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that this opinion should not be published and is not precedent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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-40017 

Conference Calendar

 

GREGORY A. SHANAFELT,

Plaintiff-Appellant,

versus

THE OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS;

COLLIN COUNTY DISTRICT ATTORNEY;

C. SANDAVOL, Judge; GREGORY BREWER,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:99-CV-264

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

April 13, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Gregory A. Shanafelt, Texas prisoner # 859126, appeals the

district court’s dismissal as frivolous of his 42 U.S.C. § 1983

civil rights complaint. Shanafelt is seeking monetary damages

for an alleged violation of his Sixth and Fourteenth Amendment

rights to compulsory process. Shanafelt contends that the

defendants failed to subpoena a list of witnesses he requested be

present at his criminal trial. Shanafelt was convicted of
No. 00-40017 

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burglary of a habitation pursuant to a guilty plea which he

entered after his criminal trial resulted in a hung jury. The

district court dismissed Shanafelt’s § 1983 complaint as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) after it

determined that Shanafelt’s claims were barred under the rule in

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

A review of the record indicates that all but one of the

defendants in this case are immune from suit. Shanafelt’s claims

against the Attorney General of the State of Texas and the Collin

County, Texas, District Attorney are barred by the Eleventh

Amendment. See Esteves v. Brock, 106 F.3d 674, 676-78 (5th Cir.

1997). Shanafelt’s claim against Doris Berry, Assistant District

Attorney of Collin County, Texas, to the extent it is brought

against Berry in her individual capacity, it is barred because

Berry is protected from personal liability by absolute

prosecutorial immunity. Id. at 677. Any official-capacity claim

against Berry is barred by the Eleventh Amendment. Id. at 677 

& n.8. Shanafelt’s claim against Judge Sandavol is barred

because the Judge is entitled to absolute judicial immunity. 

Mays v. Sudderth, 97 F.3d 107, 110-11 (5th Cir. 1996). The

remaining defendant, Shanafelt’s court-appointed attorney,

Gregory Brewer, is not a state actor and is not subject to suit

under § 1983. Mills v. Criminal Dist. Court #3, 837 F.2d 677,

679 (5th Cir. 1988). 

As none of the defendants were properly before the court, 

Shanafelt’s claims should have been dismissed with prejudice as

frivolous pursuant to § 1915(e)(2)(B)(i). Marts v. Hines, 117
No. 00-40017 

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F.3d 1504, 1505-06 (5th Cir. 1997)(en banc). The district

court’s dismissal of Shanafelt’s § 1983 complaint may be affirmed

on that basis. See Esteves, 106 F.3d at 676 (holding that a

trial court judgment may be affirmed for reasons other than those

relied on at the trial level). Shanafelt’s appeal is without

arguable merit and, thus, frivolous. Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983). As the appeal is frivolous, it is

DISMISSED. 5th Cir. R. 42.2. 

The district court’s dismissal of Shanafelt’s complaint and

this court’s dismissal of the appeal as frivolous count as two

“strikes” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Shanafelt is

CAUTIONED that if he accumulates three “strikes” under § 1915(g),

he will not be able 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. See

§ 1915(g).

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.