Posey v. Smith, 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50542
Conference Calendar
LISTON RANDOLPH POSEY, II,
Plaintiff-Appellant,
versus
WALTER S. SMITH, Judge; UNNAMED U.S. ATTORNEY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CV-135-JN
--------------------
February 18, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Liston Randolph Posey, II, federal prisoner # 02528-095,
appeals the district court’s dismissal of his action filed
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971) as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). Posey argues that John Phinizy, the
Assistant United States Attorney named as a defendant, acted
without jurisdiction and in violation of Posey’s due process
rights by filing a motion to dispose of Posey’s property seized
when he was arrested. Posey argues that Judge Smith acted in the

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No. 99-50542
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complete absence of jurisdiction in granting the Government’s
motion to dispose of his property and awarding it to the
Limestone County, Texas, Sheriff’s Department. Because Phinizy
moved to dispose of Posey’s property pursuant to 18 U.S.C. § 3665
and the district court acted pursuant to § 3665, Phinizy and
Judge Smith are entitled to immunity for their actions taken in
their official capacity. See Boyd v. Biggers, 31 F.3ed 279, 285
(5th Cir. 1994)(prosecutorial immunity); Graves v. Hampton, 1
F.3d 315, 317 (5th Cir. 1993)(judicial immunity). Judge Smith
did not act in the complete absence of authority. Mireles v.
Waco, 502 U.S. 9, 11-12 (1991). Further, Judge Smith is not
deprived of immunity even if the action is ultimately found to be
in error. Id. at 12-13. Posey has not shown that the district
court abused its discretion in dismissing his Bivens action for
monetary damages against Judge Smith and Phinizy as frivolous
pursuant to § 1915(e)(2)(B)(i).
Posey’s appeal is without arguable merit and it thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, Posey’s appeal is DISMISSED as frivolous.
See 5TH CIR. R. 42.2.
Posey is advised that the district court’s dismissal of his
Bivens action as frivolous counts as a “strike” pursuant to 28
U.S.C. § 1915(g) after this court dismisses this appeal and that
the dismissal of this appeal also counts as a “strike” pursuant
to § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). Posey is CAUTIONED that if he accumulates a third
“strike,” he will not be able to proceed IFP in any civil action

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No. 99-50542
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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). The motion to supplement is GRANTED.
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

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