Horton vs. MS State Senate, (5th Cir. 1995)

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* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published.

UNITED STATES COURT OF APPEALS For the Fifth Circuit No. 95-60307 Summary Calendar BOBBY DANIEL HORTON, JR., Plaintiff-Appellant, VERSUS MISSISSIPPI STATE SENATE, Defendant-Appellee.

Appeal from the United States District Court For the Southern District of Mississippi (No. 3:95-CV-116BN) August 30, 1995 Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM: * Appellant, Bobby Daniel Horton, Jr., (Horton) appeals the district co urtÂ’s s ua sponte dismissal of his civil rights action which sought an injunction and declaration that a Mississippi state legislative enactment is unconstitutional. Finding that the Eleventh Amendment of the United States Constitution does not bar an acti on for declaratory and injunctive relief against a state official in his official capacity to enforce a state law alleged to violate a provision of the United States Constitution, we REVERSE and REMAND to allow the appellant to amend his complaint.

Horton, proceeding pro se and in forma pauperis , filed this prisoner§ 28(2) of Senate Bill No. 2005 is unconstitutiona l. 1 In accordance with the court§ 28(2) extends radio and television privileges only to those inmates who participate in a work program or those in the Regimented Inmate Discipline Program. He contends that the class of inmates who cannot participate in the work incentive programs and earn such privileges are treated differently and, thus, are subject to unlawful discrimination in violation of the Equal Protection and Due Process clauses of the U.S. Constitution.

The district court, sua spont e , dismissed the complaint as frivolous under 28 U.S.C. § 1 915. The court found HortonÂ’s suit barred by the Eleventh Amendment, and alternatively on the ground that, under Will v. Michigan Dept. of State Police , 491 U.S. 58, 71 (1989). Horton timely appealed.

ARGUMENT AND ANALYSIS Horton argues that he is not seeking damages, but only prospective injunc t ive and declaratory relief from the State.

Consequently, he argues that the Eleventh Amendment is no bar to his suit.

A district court may dismiss an in forma pauperis complaint as frivolous under § 1915(d) if it lacks an arguable basis in law or fact. D enton v. Hernandez , 504 U.S. 25, 31-33 (1992); E ason v. Thaler , 14 F.3d 8, 9 (5th Cir. 1994). A § 1915(d) dismissal is reviewed for abuse of discretion. Denton , 504 U.S. at 33.

Under the principles established in Ex parte Young , 209 U.S. 123 (1908), § 1983 because § 1983 in this instance.

Horton pursues his claim against the individual members of the M ississippi State Senate. This he cannot do because state legislators in the act of legislating are absolutely immu ne from suit under 42 U.S.C. § 1983. Hughes v. Tarrant County, Tex. , 948 F.2d 918, 920 (5th Cir. 1991). Nevertheless, as a p ro se prisoner, Horton should be § 28(2), rather than the individual state senators who enacted the provision. S ee, e.g., Baran v. Port of Beaumont Navigation Dist. , 57 F.3d 436, 438 (5th Cir. 1995) (suing a state agency responsible for enforcing the challenged statute). Because HortonÂ’s complaint is not frivolous as a matter of law, the court abused its discretion when it sua sponte dismissed his complaint.

For the foregoing reasons, the judgment of the district court is REVERSED and REMANDED.

1 Section 28(2) provides, in relevant part, that § 28(2), 1994 Special Session (to be codified at § 47-5-124). Senate Bill No. 2005 was enacted by the Mississippi Legislature and ratified by the Governor during the First Special Extraordinary Session of 1994

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