Busick v. City of Madison, 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that this opinion should not be published and is not precedent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
Fifth Circuit
F I L E D
February 6, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60518
Summary Calendar
WILLIAM T. BUSICK,
Plaintiff-Appellant,
versus
CITY OF MADISON MISSISSIPPI; ERIC C PALMER; MIKE BROWN; DAVID
SCOTT DUFOUR; JOHN NEAL; STEPHEN PATRICK; PAUL BUNCH; JEFF N
ROBERTSON; DAVID W RUTH; CATHERINE REESE; TOBY TROWBRIDGE; TED
WOMACK; ARTHUR THOMPSON; FRED ESCO, Mrs; CLINT KINER; JANE DOE
CHEERS; JOHN A EMFREY; and MEL COXWELL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-483-LN
--------------------
Before BARKSDALE, EMILO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
William T. Busick (“Busick”), Mississippi prisoner #84027,
appeals the dismissal of his civil rights action for failure to
state a claim upon which relief may be granted upon initial
screening by the district court pursuant to 28 U.S.C. § 1915A.
The district court dismissed Busick’s claims concerning his

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No. 03-60518
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arrest and criminal prosecution with prejudice pursuant to Heck
v. Humphrey, 512 U.S. 477 (1994), and dismissed Busick’s
remaining claims without prejudice.
Because the criminal proceedings against Busick were still
pending when the district court dismissed his case and are still
ongoing, it is impossible to determine whether Busick’s claims
relating to his arrest and criminal prosecution necessarily
implicate the validity of any conviction or sentence that Busick
has received or might receive. See Mackey v. Dickson, 47 F.3d
744, 746 (5th Cir. 1995). Thus, the district court should have
stayed the proceedings in this civil action pending the
resolution of the criminal charges against Busick. See id.; see
also Heck, 512 U.S. at 487 n.8. Accordingly, we VACATE and
REMAND the district court’s dismissal of Busick’s claims
concerning his arrest and criminal prosecution.
Prior to the dismissal of this action, Busick filed a second
motion to amend his complaint and a second amended complaint that
were not considered by the district court. Therefore, we also
VACATE and REMAND the district court’s dismissal of Busick’s
remaining claims so that the district court may decide in the
first instance whether Busick should be granted leave to file his
second amended complaint and whether any of the claims contained
therein are viable. See Youmans v. Simon, 791 F.2d 341, 348 (5th
Cir. 1986).

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No. 03-60518
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We, however, may affirm the dismissal of Busick’s claims
against certain party-defendants on other grounds apparent in the
record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir.
1992). All of the claims Busick brought against John A. Emfrey
(“ADA Emfrey”) and Mel Coxwell (“ADA Coxwell”) involved acts they
allegedly performed during the prosecution of criminal charges
against Busick in the course of their duties as assistant
district attorneys. “Criminal prosecutors enjoy absolute
immunity from claims for damages asserted under § 1983 for
actions taken in the presentation of the state’s case.” Boyd v.
Biggers, 31 F.3d 279, 285 (5th Cir. 1994). Accordingly, we
AFFIRM the district court’s dismissal of Busick’s claims against
ADA Emfrey and ADA Coxwell.
Busick’s motions for leave to supplement the record on
appeal are DENIED. Busick’s motion for appointment of counsel is
DENIED. Busick’s motion for certification of question of state
law is also DENIED.
VACATED AND REMANDED IN PART; AFFIRMED IN PART ON OTHER
GROUNDS; MOTIONS FOR LEAVE TO SUPPLEMENT THE RECORD ON APPEAL
DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION FOR
CERTIFICATION OF QUESTION OF STATE LAW DENIED.

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