Leon Pugh, Jr. v. William Balish, et al

Filing

Opinion issued by court as to Appellant Leon Edward Pugh, Jr.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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Date Filed: 05/07/2014

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10178
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-00219-BAE-GRS

LEON EDWARD PUGH, JR.,
Plaintiff-Appellant,
versus
WILLIAM BALISH,
BETTE BALISH,
CHIARA BALISH BARNETT,
THE OLDE PINK HOUSE RESTAURANT,
GARIBALDI’S, INC., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
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(May 7, 2014)

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Before MARCUS, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Leonard Edward Pugh, Jr., proceeding pro se, appeals the district court’s
dismissal, under 28 U.S.C. § 1915(e)(2)(B), of his 42 U.S.C. § 1983 complaint
alleging civil rights and RICO violations that arose from his employment
termination from the Pink House Restaurant and the denial of unemployment
benefits.

In the action, Pugh sued three restaurant owners and their related

corporate entities, the commissioner of Georgia’s Department of Labor, a Georgia
superior court judge, a clerk for the Georgia Court of Appeals, and a Fulton
County district attorney. Pugh argues that the district court abused its discretion in
dismissing his complaint as frivolous, because: (1) the complaint sufficiently
alleges RICO violations; (2) judicial and Eleventh Amendment immunity do not
apply to any defendants; and (3) the two-year limitation period for a § 1983 claim
does not apply. After thorough review, we affirm.
We review a district court’s dismissal of a complaint as frivolous, under 28
U.S.C. § 1915(e)(2)(B)(i), for abuse of discretion. Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir. 2001). A claim is frivolous if it is without arguable merit either in
law or fact. Id. Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys, and will, therefore, be liberally construed.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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To prevail on a civil rights action under § 1983, a plaintiff must show that he
was deprived of a federal right by a person acting under color of state law. Griffin
v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). A private party will
be viewed as a state actor for § 1983 purposes only in rare circumstances. Rayburn
ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001). A plaintiff
attempting to prove a conspiracy between a state actor and a private party must
show that (1) the parties reached an understanding to deny the plaintiff his rights
and (2) the conspiratorial acts impinge upon the federal right.

Bendiburg v.

Dempsey, 909 F.2d 463, 468 (11th Cir. 1990).
In order to establish a federal RICO violation under 18 U.S.C. § 1962(c), a
plaintiff must satisfy four elements of proof: (1) conduct (2) of an enterprise (3)
through a pattern (4) of racketeering activity. 18 U.S.C. § 1962(c). A civil RICO
claimant under § 1964(c) also must show (1) injury to his business or property, and
(2) that such injury was by reason of the substantive RICO violation. Simpson v.
Sanderson Farms, Inc., 744 F.3d 702, 708 (11th Cir. 2014).
The limitations period for all § 1983 claims in Georgia is the two-year
period set forth in Ga. Code Ann. § 9-3-33 for personal injuries. Williams v. City
of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986).

A dismissal under §

1915(e)(2)(B)(ii) is governed by the same standard as a dismissal under Federal
Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th
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Cir.1997). Dismissal of the complaint is appropriate if the complaint, on its face,
does not state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Under the Eleventh Amendment, state officials sued for damages in their
official capacity are immune from suit in federal court. Jackson v. Georgia Dep’t
of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994). The decision whether or not to
prosecute, so long as the prosecutor has probable cause, generally rests entirely in
the prosecutor’s discretion. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
Judges are entitled to absolute immunity from damages for those acts taken while
they are acting in their judicial capacity unless they acted in the “clear absence of
all jurisdiction.” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (quotation
omitted). Under § 1983, injunctive relief is not available against a judge for an act
or omission taken in his judicial capacity, unless a declaratory decree was violated
or declaratory relief was unavailable. 42 U.S.C. § 1983. Where a judge is immune
from suit, an action against the judge may be subject to dismissal on frivolity
grounds, as the action is completely without a legal basis. See, e.g., Sun v.
Forrester, 939 F.2d 924, 925-26 (11th Cir. 1991).
Under the Rooker-Feldman doctrine, federal district courts and courts of
appeals lack subject matter jurisdiction over certain matters related to previous
state court litigation. Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332
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(11th Cir. 2001). The Rooker-Feldman doctrine applies to “cases brought by statecourt losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review
and rejection of those judgments.” Nicholson v. Shafe, 558 F.3d 1266, 1273 (11th
Cir. 2009) (quotation omitted).
In this case, Pugh has failed to allege any activity that would qualify as
racketeering activity as defined by 18 U.S.C. § 1961(1), and, therefore, has failed
to allege a pattern of racketeering activity. He also has failed to allege causation
between a substantive RICO violation and any injury he suffered. In short, he has
failed to allege the basic elements of a RICO violation.
As for Pugh’s § 1983 claims against the restaurant defendants, he has failed
to allege how these defendants are state actors, or how they reached an
understanding with officials to deny him a federal right. Griffin, 261 F.3d at 1303;
Bendiburg, 909 F.2d at 468. Furthermore, Pugh’s § 1983 claims are tied to his
termination from Pink House, which occurred on July 9, 2010. Because he filed
this complaint on October 10, 2013 -- more than two years after his termination -the § 1983 claims alleging misconduct from 2010 are time-barred. Williams, 794
F.2d at 626. What’s more, Pugh has made no showing as to why the statute of
limitations might be tolled.

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As for Pugh’s claims against the state superior court judge who heard his
appeal of the decision denying him unemployment benefits and the district attorney
who failed to prosecute after Pugh reported misconduct, these defendants are
immune from suit. All of the judge’s actions were taken in his judicial capacity
and he did not act in the clear absence of all jurisdiction. Bolin, 225 F.3d at 1239.
In addition, the Eleventh Amendment bars Pugh’s claims against the judge, since
Pugh is suing a state official, in federal court, for damages resulting from actions
taken by the judge in his official capacity. Jackson, 16 F.3d at 1575. Similarly,
there is no merit to his claim against the district attorney based on a discretionary
failure to prosecute, because Pugh has not alleged that the prosecutor’s decision
was without probable cause. Id.; Bordenkircher, 434 U.S. at 364.
As for Pugh’s § 1983 claims against the Georgia Department of Labor, the
superior court judge, and the Georgia Court of Appeals concerning their decisions
affirming the denial of his unemployment benefits, we lack subject matter
jurisdiction over these matters. What Pugh asked the district court to do, and what
he is asking us to do on appeal, is review and reject the judgments rendered in
previous state court proceedings.

This is a violation of the Rooker-Feldman

doctrine and deprives us of jurisdiction. Goodman, 259 F.3d at 1332.
As for Pugh’s claims against the court of appeals clerk, Pugh sued the clerk
for actions taken in her official capacity as a court clerk.
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Thus, Eleventh

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Amendment immunity bars the federal court action. Jackson, 16 F.3d at 1575.
Pugh has also failed to allege the deprivation of a federal right by the clerk.
Griffin, 261 F.3d at 1303.
In sum, Pugh’s § 1983 claims for RICO violations, pursuant to 18 U.S.C. §
1964, are without arguable merit in law or fact in numerous ways. Accordingly,
the district court did not abuse its discretion in sua sponte dismissing his complaint
under § 1915(e)(2)(B)(i) for frivolity.
AFFIRMED.

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