Graham v. Johnston, et al

* 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this opinion should not be published and is not precedent except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
FOR THE FIFTH CIRCUIT
No. 01-51162
Summary Calendar
WALLACE GRAHAM,
Plaintiff-Appellant,
versus
WILLIAM JOHNSTON; ROBERT BLOSSMAN,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-01-CV-125)
_________________________________________________________________
April 30, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Wallace Graham, Texas prisoner # 766559, appeals, pro se, the
dismissal, as frivolous, of his pro se, in forma pauperis,
complaint, which asserted a state legal malpractice claim and
violations of 42 U.S.C. §§ 1985(2) and 1986. Graham contends that,
to induce him to testify in federal court, Appellees (a former
Chief Assistant United States Attorney (AUSA) and a Special Agent
for the United States Secret Service) promised him he would receive
a shorter state sentence.

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Even if Appellees made such a representation, that does not
fall within the ambit of § 1985(2), (conspiracy, inter alia, to
deter testimony). See Nealy v. Hamilton, 837 F.2d 210, 212 (5th
Cir. 1988). Accordingly, the district court did not abuse its
discretion in dismissing Graham’s § 1985 claim as frivolous,
pursuant to 28 U.S.C. § 1915(e). See Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997).
A valid § 1985 claim is a prerequisite to one under § 1986
(liability for failure to prevent § 1985 violation). Therefore,
the court did not abuse its discretion in dismissing the § 1986
claim as well. See Bryan v. City of Madison, 213 F.3d 267, 276
(5th Cir. 2000), cert. denied, 531 U.S. 1145 (2001).
Concerning Graham’s legal malpractice claim against the
former AUSA, “Texas law is clear that a legal malpractice claim
requires proof of an attorney-client relationship between the
plaintiff and the defendant attorney”. First Nat’l Bank of Durant
v. Trans Terra Corp. Int’l, 142 F.3d 802, 806 (5th Cir. 1998).
Graham admitted the AUSA was not his attorney. Therefore, the
district court did not abuse its discretion in dismissing, as
frivolous, Graham’s legal malpractice claim. See 28 U.S.C. §
1915(e)(2)(B)(i); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997).
Finally, the district court did not abuse its discretion in
dismissing without allowing Graham discovery.
AFFIRMED

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