James Green, et al v. Wayne Mallia, et al

Filing

UNPUBLISHED OPINION FILED. [10-20173 Affirmed] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 11/22/2010; denying motion to strike brief filed by Appellees MidFirst Bank, Midland Mortgage Co, Barrett Daffin Frappier Turner & Engel LLP, Mr. Steven A. Leyh, Leyh & Payne LLP, Ms. Shelly Douglas and Mr. Jeff Records [6600321-2]; denying motion to correct brief filed by Appellees MidFirst Bank, Midland Mortgage Co, Barrett Daffin Frappier Turner & Engel LLP, Mr. Steven A. Leyh, Leyh & Payne LLP, Ms. Shelly Douglas and Mr. Jeff Records [6600321-5]; denying motion to strike record excerpts filed by Appellees MidFirst Bank, Midland Mortgage Co, Barrett Daffin Frappier Turner & Engel LLP, Mr. Steven A. Leyh, Leyh & Payne LLP, Ms. Shelly Douglas and Mr. Jeff Records [6600321-3]; denying motion to strike the extraneous portions of the purported record excerpts filed by Appellees MidFirst Bank, Midland Mortgage Co, Barrett Daffin Frappier Turner & Engel LLP, Mr. Steven A. Leyh, Leyh & Payne LLP, Ms. Shelly Douglas and Mr. Jeff Records [6600321-4] [10-20173]

James Green, et al v. Wayne Mallia, et al Document: 00511280425 Case: 10-20173

Page: 1 Date Filed: 11/01/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20173 S u m m a r y Calendar November 1, 2010 Lyle W. Cayce Clerk

J A M E S A. GREEN; PRINCE ELLA GREEN, Plaintiffs - Appellants v. J U D G E WAYNE MALLIA, State Actor; STEVEN LEYH, Officer of the Court; S H E L L Y DOUGLAS, Officer of the Court; MICHAEL WESTON, Officer of the C o u r t ; JEFF RECORDS, Chief Executive Officer/President of Midland/Midfirst; L E Y H & PAYNE LAW FIRM; MIDFIRST BANK; MIDLAND MORTGAGE; B A R R E T T DAFFIN FRAPPIER TURNER & ENGEL LLP, formerly known as B a r r e t t Burke Wilson Castle Daffin & Frappier, Defendants - Appellees

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-4159

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* P la in t iffs James and Prince Ella Green, pro se, appeal the dismissal of t h e ir claims under 42 U.S.C. §§ 1981, 1983, 1985, 1986, the Bankruptcy Code, a n d the RICO Act. For the reasons stated below, we AFFIRM.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

*

Dockets.Justia.com

Case: 10-20173 Document: 00511280425 Page: 2 Date Filed: 11/01/2010

No. 10-20173 I . Factual and Procedural Background T h is case stems from confusion surrounding an agreement to settle a state c o u r t lawsuit. Plaintiff-Appellants filed suit in the 405th Judicial District Court o f Galveston County, Texas, alleging that several financial institutions were im p r o p e r ly attempting to collect a debt that had been discharged in bankruptcy. Plaintiffs settled with some of the defendants and were negotiating with M id la n d Mortgage Co. ("Midland") and a law firm now known as Barrett Daffin F r a p p ie r Turner & Engal LLP ("Barrett Daffin"), both defendants in this case. P la in t iffs ' counsel in state court, Michael Weston, signed a Rule 11 A g r e e m e n t on May 6, 2009, indicating that the parties had settled the case a g a in s t Midland and Barrett Daffin, though settlement details were still being fin a liz e d .1 Based on emails exchanged in March and April 2009, Weston

b e lie v e d he had authority to sign the Rule 11 Agreement; Plaintiffs had reviewed a first draft of the proposed settlement agreement. Yet Plaintiffs claim Weston d id not have authority to settle, and they produced evidence that Mrs. Green w a s receiving inpatient psychiatric care from May 3 through May 11. Thus, they c o n t e n d , she could not have agreed to a settlement. N e v e r t h e le s s , state court Judge Wayne Mallia enforced the Rule 11 A g r e e m e n t and ordered Plaintiffs to sign a Mutual Release. Plaintiffs

m a in t a in e d they wished to proceed to trial. They appealed Judge Mallia's order in state court on December 3, 2009. On December 31, 2009, Plaintiffs filed a fed era l complaint, alleging, among other things, that they were mistreated based o n their race and that Judge Mallia conspired with Defendants to coerce

Although originally a party to the case, pursuant to Appellants' motion, Michael Weston was dismissed from this appeal.

1

2

Case: 10-20173 Document: 00511280425 Page: 3 Date Filed: 11/01/2010

No. 10-20173 P la in t iffs to sign a settlement against their wishes. Defendants filed motions to d is m is s under Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6). O n February 24, 2010, the district court granted Judge Mallia's motion to d is m is s , finding he was entitled to complete judicial immunity. On March 4, 2 0 1 0 , the district court granted the remaining Defendants' motions to dismiss o n the federal claims and declined to exercise supplemental jurisdiction over the p e n d in g state law claims.2 In making its ruling, the court did not have access t o the Plaintiffs' response because of a clerical error in the Clerk's Office. Plaintiffs filed a motion to reconsider under Fed. R. Civ. Pro. Rule 59(e). After c o n s id e r in g Plaintiffs' response, the district court found no basis to alter any s u b s t a n t iv e rulings. P la in t iffs filed this appeal on March 15, 2010, before the district court had r e s p o n d e d to the Rule 59 motion. Under Fed. R. App. Pro. 4(a)(B)(i), their notice b e c a m e effective to appeal the judgment after the order on the motion was e n te r e d on March 29, 2010.

II. Standard of Review T h is court reviews a grant of motion to dismiss de novo, viewing the facts p le a d e d in the complaint in the light most favorable to the plaintiff.3 While d e t a ile d factual allegations are not required, the plaintiff must state a "plausible

Since Plaintiffs did not brief the district court's dismissal of the state law claims, any objection to this finding is waived. See In re Tex. Mortgage Servs. Corp., 761 F.2d 1068, 1073 (5th Cir. 1985). See, e.g., Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009); Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).
3

2

3

Case: 10-20173 Document: 00511280425 Page: 4 Date Filed: 11/01/2010

No. 10-20173 c l a i m for relief" to survive a motion to dismiss.4 We hold pro se briefs to less s t r in g e n t standards than formal pleadings drafted by lawyers.5 Pro se litigants m u s t brief the arguments in order to preserve them,6 but we have construed P la in t iffs ' brief liberally when doubts exist as to whether subject matter was p r o p e r ly briefed.

I I I . Judicial Immunity P la i n t i ff-A p p e lla n t s ' brief cites a variety of cases describing when state a c t o r s are liable under 42 U.S.C. § 1983. However, Appellants fail to provide r e a s o n s why Judge Mallia is not entitled to judicial immunity. The Supreme C o u r t "has consistently adhered to the rule that judges defending against § 1983 a c t io n s enjoy absolute immunity from damages liability for acts performed in t h e ir judicial capacities."7 The are only two instances when judicial immunity d o e s not apply: 1) when the judge was not acting in his judicial capacity; and 2) w h e n the judge acted in complete absence of jurisdiction, even if the actions were ju d ic ia l in nature.8 Neither of these two situations applies in this case.

A p p e lla n t s make no allegations that Judge Mallia was acting outside his judicial s c o p e . Rather, they allege his ruling was improper and the result of a conspiracy w it h other Defendants. Reading the complaint in the light most favorable to

4

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Haines v. Kerner, 404 U.S. 519, 520 (1972). Price v. Digital Equipment Corp., 846 F.2d 1026 (5th Cir. 1988). Dennis v. Sparks, 449 U.S. 24, 27 (1980) (internal quotation marks omitted). Mireless v. Waco, 502 U.S. 9, 11-12 (1991).

5

6

7

8

4

Case: 10-20173 Document: 00511280425 Page: 5 Date Filed: 11/01/2010

No. 10-20173 A p p e lla n t s , any possible wrongdoing by Judge Mallia was strictly limited to acts p e r fo r m e d in his judicial capacity. Thus, the district court properly dismissed t h e case against him.

I V . Section 1983 Claims Against Other Defendants A p p e lla n t s allege no facts to indicate that Defendants conspired or worked jo in t ly with Judge Mallia. For example, Appellants claim that Judge Mallia u s e d a different standard of review for African-American pro se Appellants than fo r opposing white counsel. Even if this were true, Appellants present no

e v id e n c e that Defendants conspired with Judge Mallia to obtain this result. As t h e Supreme Court has said, "merely resorting to the courts and being on the w in n in g side of a lawsuit does not make a party a co-conspirator or joint actor w it h the judge."9 Because none of the factual allegations describe concerted or jo in t activity, the private Defendants did not act under color of state law, and the d is t r ic t court properly dismissed Appellants' § 1983 claims.

V . Remaining Federal Claims T h e district court opinion carefully explained that the federal courts did n o t have subject matter jurisdiction over Appellants' claims under 42 U.S.C. §§ 1 9 8 5 , 1986 and the Bankruptcy Code because of the Rooker-Feldman doctrine. This doctrine applies to "cases brought by state-court losers complaining of in ju r ie s caused by state-court judgments rendered before the district court p r o c e e d in g s commenced and inviting district court review and rejection of those

9

Dennis, 449 U.S. at 28.

5

Case: 10-20173 Document: 00511280425 Page: 6 Date Filed: 11/01/2010

No. 10-20173 j u d g m e n t s ."1 0 Here, Judge Mallia, acting in state court, rendered a judgment a d v e r s e to Appellants, which they sought to challenge in the federal district c o u r t. Because Appellants' claims are "inextricably intertwined" with the merits o f the underlying state suit, we lack jurisdiction.1 1 Moreover, Appellants' brief d o e s not address the Rooker-Feldman doctrine or propose any theory for why the d is t r ic t court erred in dismissing these claims. Thus, we may consider any such a r g u m e n t s waived, notwithstanding the lenient standards we apply to pro se litig a n ts . S im il a r ly , Plaintiffs have not adequately supported an appeal of their R I C O claims. Even if Plaintiffs did not waive this appeal, Plaintiffs asserted no fa c t s that would support a pattern of racketeering or demonstrate Defendants w e r e members of an ongoing association-in-fact.1 2 As a result, the RICO claims w e r e properly dismissed.

V I . Conclusion W e therefore AFFIRM the district court's judgment dismissing Appellants' c la im s . We DENY as unnecessary Defendants' motion to strike Appellants' r e c o r d excerpts and brief.

ExxonMobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); Howell v. Supreme Court of Texas, 885 F.2d 308, 312 (5th Cir. 1989). See Liedtke v. State Bar of Tex., 18 F.3d 315, 316, 317-18 (5th Cir. 1994) (finding that "[t]he casting of a complaint in the form of a civil rights action cannot circumvent" the RookerFeldman doctrine). See, e.g., St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir. 2009) (affirming a dismissal of RICO claims when Appellants did not allege the requisite criminal acts); Crowe v. Henry, 43 F.3d 198, 205 (5th Cir. 1995) (listing the requirements for association-in-fact enterprises).
12 11

10

6