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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50461
Summary Calendar
__________________
Kent Anthony Krueger,
Plaintiff-Appellant,
versus
Bill Reimer, District Attorney; and Fred Moore,
Judge, Comal County,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas
______________________________________________
(September 26, 1995)
Before KING, SMITH and BENAVIDES, Circuit Judges.
Per Curiam:
Kent Anthony Krueger appeals from the district court's
dismissal as frivolous of his 42 U.S.C. § 1983 claim against Comal
County, Bill Reimer, District Attorney of Comal County, and Fred
Moore, a Texas state district judge. We will affirm.
I. BACKGROUND
Krueger, a Texas prisoner, filed a civil rights action
pursuant to 42 U.S.C. § 1983 against Reimer and Moore, alleging

that they conspired to deprive him of his right to appeal his
conviction by denying his request to proceed in forma pauperis on
appeal and by denying his right to self-representation. He also
asserted that Comal County was liable because Reimer and Moore
acted as final policy makers for Comal County. The magistrate
judge recommended that Krueger's claims should be dismissed as
frivolous because they lacked an arguable basis in law or fact and
that the district court should warn Krueger of the possible
imposition of sanctions for filing future frivolous actions. The
district court adopted the magistrate's recommendations, and
dismissed Krueger's suit with prejudice. Krueger filed a timely
appeal.
II.
Dismissal of an in forma pauperis petition under 28 U.S.C. §
1915(d) is permissible if the district court is "satisfied that the
action is frivolous or malicious." Graves v. Hampton, 1 F.3d 315,
317 (5th Cir. 1993). An action is frivolous if it lacks an
arguable basis either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325, 109 S. Ct. 1827, 1831-32 (1989). We review a
district court's section 1915(d) dismissal under an abuse of
discretion standard. Denton v. Hernandez, U.S. , 112 S.
Ct. 1728, 1734 (1992). We have reviewed the record, and we affirm
the district court's dismissal for the following reasons:
(1)
The Supreme Court has held that, in order to recover damages
for harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a section 1983 plaintiff must
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prove that the conviction has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such a determination, or called
into question by a federal court's issuance of a writ of
habeas corpus. Heck v. Humphrey, U.S. , 114 S. Ct.
2364, 2372 (1994). To the extent that Krueger's claims, if
successful, would necessarily imply that his state criminal
conviction is invalid, they are not cognizable under section
1983 because Krueger has not proved that his conviction and
sentence for burglary have been invalidated.
(2)
Reimer and Judge Moore are absolutely immune from liability in
Krueger's section 1983 suit. Despite the applicability of
Heck, a district court may appropriately consider the possible
applicability of the doctrine of absolute immunity as a
threshold matter in making a section 1915(d) determination.
See Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).
Reimer, as a district attorney, is absolutely immune in a
civil rights suit for any actions taken pursuant to his role
as State advocate in preparing for the initiation of judicial
proceedings or for trial. Id. at 285. Similarly, judicial
officers enjoy absolute immunity from liability for damages
for acts performed in the exercise of their judicial
functions. Id. at 284. Krueger's claims against Reimer and
Judge Moore concern their actions during Krueger's criminal
trial and, therefore, are covered by the doctrines of
prosecutorial and judicial immunity.
(4)
Krueger's allegation that Comal County is liable because
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Reimer and Moore acted as final policy makers for the County
is without foundation in law or in fact. In order to recover
a judgment against a local governmental entity under section
1983, Krueger must establish that he sustained a deprivation
of his constitutional rights as a result of some official
policy, practice, or custom of the governmental entity.
Monell v. Department of Social Servs. of the City of New York,
436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978). A local
judge acting in his or her judicial capacity is not considered
a local government official whose actions are attributable to
the county. See Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.
1992); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.) cert.
denied, 474 U.S. 1007 (1985).
If a district attorney exceeds the scope of his
prosecutorial duties, a county may be held liable under
certain limited circumstances. See Turner v. Upton County,
915 F.2d 133, 137-38 (5th Cir. 1990), cert. denied, 498 U.S.
1069 (1991) (county may be held liable for the acts of
district attorney who entered into conspiracy with county
sheriff, the ultimate repository of law enforcement power in
the county). Krueger has made no specific factual allegations
that either Reimer or Judge Moore acted outside the scope of
his prosecutorial or judicial functions. Because both Reimer
and Judge Moore were acting in their official capacities in
Krueger's criminal trial, their actions do not constitute the
official policy of Comal County.
(5)
Krueger also contends that the district court erred in
4

dismissing his claims because it did not review the fifty-two
exhibits that Krueger filed with his objections to the
magistrate judge's report. Our review of the record indicates
that the district court conducted a de novo review of the
magistrate's report and the record, including Krueger's
exhibits, before dismissing the section 1983 action.
Krueger's contention that the trial court failed to review the
exhibits lacks merit.
The district court did not abuse its discretion in concluding
that Krueger claims have no arguable basis in law or in fact.
Accordingly, we affirm the district court's dismissal of his
section 1983 claim as frivolous.
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