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,

(1971) as frivolous under

(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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-50542 -2-

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

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,

(5th Cir. 1993)(judicial immunity). Judge Smith

did not act in the complete absence of authority. Mireles v.

Waco,

(1991). Further, Judge Smith is not

deprived of immunity even if the action is ultimately found to be

in error.

. 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,

(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

(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,

(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 No. 99-50542 -3-

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.