Andrew P. Moore, II v. John E. Potter

141 F. App'x 803
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 8, 2005
Docket04-15079; D.C. Docket 03-00286-CV-J-25-HTS
StatusUnpublished
Cited by65 cases

This text of 141 F. App'x 803 (Andrew P. Moore, II v. John E. Potter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Andrew P. Moore, II v. John E. Potter, 141 F. App'x 803 (11th Cir. 2005).

Opinion

PER CURIAM.

Andrew P. Moore, II, proceeding pro se, appeals the district court’s order granting the defendants’ motions to dismiss his second amended complaint. A U.S. Postal Service employee, Moore has alleged that appellees engaged in a litany of criminal acts, conspiracies and violations of his constitutional rights, all arising out of a workers’ compensation dispute. Moore also appeals various discovery orders and the district court’s denial of his Rule 60(b) motion. Because we find Moore’s arguments without merit, we affirm the district court.

I. Dismissal of Complaint for Failure to State a Claim

Moore argues that the district court erred in dismissing his complaint. His seven-count, second amended complaint alleged: (1) violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., (Counts One and Two); (2) a claim for false light invasion of privacy, (Count Three); (3) a Bivens action for violations of his rights under the First, Fifth, and Ninth Amendments, (Count Four); (4) conspiracy to obstruct justice, in violation of 42 U.S.C. § 1985(2), (Count Five); (5) neglect to prevent the conspiracy alleged in Count Five, in violation of 42 U.S.C. § 1986, (Count Six); and (6) aiding and abetting and vicarious liability (Count Seven).

We review de novo the district court’s dismissal of a complaint for failure to state a claim, accepting the complaint’s allegations as true, and construing them in the light most favorable to the plaintiff. Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1187 (11th Cir.2004). “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nonetheless, the complaint must meet minimal pleading requirements, and “unsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.” Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n. 16 (11th Cir.2001) (en banc).

A. Counts One and Two: RICO Act

The RICO Act provides a private civil remedy to recover treble damages to “[a]ny person injured in his business or property by reason of a violation” of the substantive provisions contained in § 1962 of the RICO Act. 18 U.S.C. § 1964(c). “The four elements of civil RICO liability are (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1311 (11th Cir.2000). While a civil RICO plaintiff must show that the racketeering activity caused him to suffer an injury, see 18 U.S.C. § 1964(c), a claim stemming from “personal injury, or pecuniary losses resulting from personal injury” is “not cognizable under RICO.” Pilkington v. United Airlines, 112 F.3d 1532, 1536 (11th Cir.1997); see also Grogan v. Platt, 835 F.2d 844, 847 (11th Cir.1988) (“In our view, the ordinary meaning of the phrase ‘injured in his business or property1 excludes personal injuries, including the pecuniary losses therefrom.”). Furthermore, we have held that plaintiffs “cannot recover under RICO for those pecuniary losses that are most properly understood as part of a personal injury claim.” Grogan, 835 F.2d at 848.

B. Count Three: False Light Invasion of Privacy

Florida law recognizes a claim for false light invasion of privacy under the *806 tort of invasion of privacy. See Agency for Health Care Admin. v. Associated Indus. of Fla., Inc., 678 So.2d 1239, 1252 n. 20 (Fla.1996) (identifying “false light in the public eye — publication of facts which place a person in a false light even though the facts themselves may not be defamatory,” as one of the “four types of wrongful conduct” that can be remedied by an action for invasion of privacy). A person will be held liable for false light invasion of privacy if “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” See Restatement (Second) of Torts § 652E. Under Florida law this “tort of invasion of privacy must be accompanied by publication to the public in general or to a large number of persons.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1315 (11th Cir.1989).

C. Count Four: Bivens claim

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, the Supreme Court provided for the possibility of a cause of action for monetary damages against federal officials in their individual capacities for a violation of a federal constitutional right. 403 U.S. 388, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). However, the Supreme Court has held that a federal employee cannot maintain a cause of action against his supervisor for violations of his First Amendment rights, noting that the Civil Service Reform Act (CSRA) established a remedy for federal employees’ employment-related constitutional claims. Bush v. Lucas, 462 U.S. 367, 385-90, 103 S.Ct. 2404, 76 L.Ed.2d 648, (1983); see also Wells v. Federal Aviation Administration, 755 F.2d 804, 809-10 (11th Cir.1985) (applying same analysis in the context of a Fifth Amendment due process challenge); Stephens v. Dep’t of Health and Human Servs., 901 F.2d 1571

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141 F. App'x 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrew-p-moore-ii-v-john-e-potter-ca11-2005.