IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60142 Conference Calendar

RAY MCANALLY,

Plaintiff-Appellant,

versus

JOHN MCCULLOUGH,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:99-CV-240-P-B - - - - - - - - - - December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Ray McAnally, Mississippi prisoner # 07790, appeals the

district court’s dismissal of his

complaint.

The district court dismissed the complaint pursuant to

(e)(2)(B)(ii) for failure to state a claim. On appeal,

McAnally reurges the merits of his complaint, but does not

challenge the district court’s conclusion that McCullough was a

private citizen not acting under color of state law. See Barnes

v. Lehman,

(5th Cir. 1988)(to state a § 1983

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-60142 -2-

claim, plaintiff must allege that defendant was acting under

color of state law).

This court reviews de novo a district court’s dismissal of a

prisoner’s civil rights complaint under

(e)(2)(B)(ii) for failure to state a claim. Berry v.

Brady,

(5th Cir. 1999). The same de novo

standard is employed for reviewing a complaint dismissed pursuant

to Fed. R. Civ. P. 12(b)(6). Black v. Warren,

(5th Cir. 1998). The district court erred when it dismissed

McAnally’s complaint sua sponte, because it did so without giving

him the opportunity to amend his complaint. Jones, 188 F.3d at

326. This error is harmless, however, because even if McAnally

had amended his complaint to plead state action, his complaint is

an indirect attack on the validity of his conviction, and that

attack is barred by Heck v. Humphrey,

(1994). See Jacquez v. Procunier,

(5th Cir.

1986)(if it is obvious that no amendment to the complaint can

save the prisoner’s pro se lawsuit, no reversible error in not

giving opportunity to do so). Accordingly, the district court’s

dismissal is AFFIRMED. See Bickford v. Int’l Speedway Corp.,

, 1031 (5th Cir. 1981)(this court may affirm on grounds

different from those employed by the district court).