Lowell Green v. State of Texas Government, et al

Filing

UNPUBLISHED OPINION FILED. [17-50165 Dismissed as Frivolous] Judge: TMR , Judge: ECP , Judge: JEG Mandate issue date is 01/19/2018; denying motion for a writ of error coram nobis filed by Appellant Mr. Lowell Quincy Green [8552199-2]; denying motion to file supplemental briefs filed by Appellant Mr. Lowell Quincy Green [8538410-2] [17-50165]

Case: 17-50165

Document: 00514249229

Page: 1

Date Filed: 11/27/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50165
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 27, 2017
Lyle W. Cayce
Clerk

LOWELL QUINCY GREEN,
Plaintiff-Appellant
v.

STATE OF TEXAS GOVERNMENT; ABELINO REYNA, District Attorney of
McLennan, Waco, TX; BRANDON DERRELL LUCE; LAWRENCE E.
JOHNSON; LANDON RAMSEY,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:16-CV-424
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Lowell Quincy Green, Texas prisoner # 518622, was convicted in Texas
of aggravated robbery and is currently serving a sentence of life imprisonment.
Proceeding pro se and in forma pauperis, he filed a complaint pursuant to 42
U.S.C. § 1983, alleging violations of his civil rights against Abelino Reyna,
Brandon Derrell Luce, and Landon Ramsey, state prosecutors involved in
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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No. 17-50165
Green’s underlying criminal proceeding, and Lawrence Johnson, his courtappointed attorney in the underlying criminal proceeding.

Specifically,

Green’s complaint alleged that the prosecutors withheld exculpatory evidence,
disobeyed discovery orders, fabricated evidence, charged him without probable
cause pursuant to a defective and constitutionally deficient indictment, and
committed prosecutorial misconduct. As to Johnson, Green alleged that he
received ineffective assistance of counsel because Johnson failed to object to
the purportedly defective indictment, failed to conduct an adequate
investigation of his case, and failed to object to the jury’s verdict or move for
an acquittal.
Now, Green appeals the district court’s dismissal of his complaint as
frivolous. A complaint is frivolous if it has no “arguable basis in fact or law.”
Morris v. McAllester, 702 F.3d 187, 189 (5th Cir. 2012).

We review the

dismissal of an IFP complaint as frivolous for abuse of discretion. Black v.
Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
First, we conclude that Green’s claims against prosecutors Reyna, Luce,
and Ramsey in their official capacities are barred by the Eleventh Amendment.
See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); Esteves v. Brock,
106 F.3d 674, 678 (5th Cir. 1997). We further conclude that Green’s individual
capacity claims against Reyna, Luce, and Ramsey are barred by absolute
prosecutorial immunity. See Rykers v. Alford, 832 F.2d 895, 897 (5th Cir.
1987). Green’s allegations against Reyna, Luce, and Ramsey concern actions
that fall within the scope of prosecutorial immunity. See Boyd v. Biggers, 31
F.3d 279, 285 (5th Cir. 1994). Thus, Green’s claims against Reyna, Luce, and
Ramsey are barred by the immunity doctrines.
Next, we hold that Green’s claims against Johnson fail because Green’s
allegations do not establish that Johnson was acting under color of state law.

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Bryant v. Military Dep’t of Miss., 597 F.3d 678, 686 (5th Cir. 2010); see Polk
Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Furthermore, Green’s allegations
do not establish that Johnson conspired with any state official to deprive Green
of a constitutional right in his criminal case. See Mills v. Criminal Dist. Court
No. 3, 837 F.2d 677, 679 (5th Cir. 1988). Thus, the district court correctly
concluded that Green failed to assert a cognizable claim against Johnson under
§ 1983.
To the extent that Green raises claims that challenge the validity of his
conviction, they are not cognizable under § 1983, because he has failed to
demonstrate that the validity of his conviction has been called into question.
See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Green’s claims that seek
to contest the fact and duration of his confinement are not cognizable under
§ 1983. See Wilkerson v. Dotson, 544 U.S. 74, 78-79, 81-82 (2005).
Based on the foregoing, Green’s appeal is without arguable merit and is
dismissed as frivolous.

The dismissal of this appeal as frivolous and the

district court’s dismissal of Green’s complaint as frivolous and for failure to
state a claim each count as a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Green is warned
that once he accumulates three strikes, he may not 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).
Green’s motions for leave to file a supplemental brief and for a writ of
error coram nobis are denied.
APPEAL

DISMISSED

AS

FRIVOLOUS;

SANCTION WARNING ISSUED.

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MOTIONS

DENIED;