Dorsett v. Hug

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 22, 2004
• Docket: 03-10786
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 22, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-10538 Summary Calendar

MICHAEL L. DORSETT,

Plaintiff-Appellant, versus

G. A. HUG, Etc.; ET AL.,

Defendants,

GERALD CARRUTH, Assistant U.S. Attorney, Western District of Texas, in his individual capacity,

Defendant-Appellee.

- - - - - - - - - - - - - consolidated with

No. 03-10786 Summary Calendar

Plaintiff-Appellant,

versus

F. COFFEY, in his individual capacity; J. KEATHLEY, in his individual capacity; M. PACE, in his individual capacity; F. MILLS, in his individual capacity; W. WILHOIT, in his individual capacity; VICKY MARWOOD, in her individual capacity; TODD MCCALL, in his individual capacity; PAT KIERHAN, in his individual capacity; MONICA SEGEDY, in her individual capacity; GREG HARBOURT, in his individual capacity; LAURIE GIBBS, in her individual capacity; LISA REDWINE, in her individual capacity; ANTHONY WEAVER, in his individual capacity; JIM MONTEE, in his individual capacity; ROBERT ZANE, in his individual capacity; ALBERT SANCHEZ, in his individual capacity; JOHN P. BRADFORD, in his individual capacity;

Defendants-Appellees.

No. 03-10912 Summary Calendar

G. A. HUG, in his individual capacity; F. D. CHAMBERS, in his individual capacity,

-------------------- Appeals from the United States District Court for the Northern District of Texas USDC No. 4:01-CV-259-A --------------------

Before HIGGINBOTHAM, DAVIS, AND PRADO, Circuit Judges:

PER CURIAM:*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

-2- Appellant Michael Dorsett filed suit under 42 U.S.C. § 1983

against G. A. Hug, F. D. Chambers, and numerous other defendants

alleging violations of his constitutional rights. He also raised

claims under the Racketeer Influenced and Corrupt Organizations

(RICO) Act1 and the Wire and Electronic Communications Interception

and Interception of Oral Communications (Wiretap) Act.2 The

district court dismissed his claims, and Dorsett appeals. He also

argues that the district abused its discretion in denying his

recusal motions. We have consolidated the appeals,3 and we now

AFFIRM.

This suit centers around the events preceding Dorsett’s 1998

conviction. He pled guilty to one count of carrying a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)

and (2), and was sentenced to a term of sixty months followed by a

three year term of supervised release. Dorsett alleged in his

complaint that Hug, Chambers, and the other defendants engaged in

an illicit undercover investigation.

Dorsett sued Appellee Gerald Carruth, an Assistant United

States Attorney for the Western District of Texas, in his

individual capacity. The district court determined that defendant

Carruth was entitled to dismissal on several grounds. In

particular, the court concluded that “Carruth is entitled to the

1 18 U.S.C. § 1962. 2 18 U.S.C. § 2511. 3 See FED. R. APP. P. 3(b).

-3- defense of qualified immunity.” Although Dorsett challenges some

of the district court’s grounds for dismissal, he failed to brief

the issue of qualified immunity. Pro se briefs are afforded

liberal construction,4 but even pro se litigants must brief

arguments in order to preserve them.5 Arguments not adequately

argued in the body of the brief are deemed abandoned on appeal.6

Because the district court’s unchallenged dismissal on grounds of

qualified immunity is sufficient to dispose of all the claims

asserted against Carruth, it is unnecessary to discuss Dorsett’s

other arguments.7

The district court determined that Dorsett’s only claim

against Appellees Lt. L. Coffey, Capt. J. Keathley, Maj. M. Pace,

Col. F. Mills, and Col. W. Wilhoit (the Missouri Five)

and Appellees John P. Bradford, Albert Sanchez, Vicki Marwood, Todd

McCall, Pat Kierhan, Monica Segedy, Greg Harbourt, Laurie Gibbs,

Lisa Redwine, Anthony Weaver, Jim Montee, and Robert Zane (the

Federal Twelve) arose under the RICO Act, and granted the

defendants’ motions to dismiss. Dorsett argues that his verified

complaint states a RICO claim against these defendants. We agree

with the defendants and the district court that the complaint fails

4 See Haines v. Kerner, 404 U.S. 519, 521 (1972). 5 Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 6 Id. at 225. 7 See American Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l, 343 F.3d 401, 411 n.6 (5th Cir. 2003).

-4- to satisfy the RICO continuity requirement: there is no allegation

that the defendants have regularly operated in an allegedly illegal

manner or that there is a threat that they will so operate in the

future.8

Dorsett’s final argument is that the district court erred in

granting summary judgment to defendants G.A. Hug and F.D. Chambers

on his RICO and Wiretap Act claims. We review the district court’s

grant of summary judgment de novo and evaluate the facts in the

light most favorable to the nonmoving party.9 “We may affirm a

summary judgment on any ground supported by the record, even if it

is different from that relied on by the district court.”10 With

regard to Dorsett’s RICO Act claim, the summary judgment record,

including Dorsett’s verified complaint and the additional evidence

adduced by Dorsett in opposition to the defendants’ motion,

provides no proof that the RICO Act’s continuity requirement is

satisfied.11 The district court dismissed Dorsett’s Wiretap Act

claims because they were barred by the statute of limitations.

Dorsett fails to present any argument in his opening brief

8 See Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1139-40 (5th Cir. 1992) (holding that, to state a claim under RICO, alleged acts must pose a threat of continued criminal activity). 9 Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534 th (5 Cir. 2000). 10 Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir. 2001). 11 See Tel-Phonic Servs., 975 F.2d at 1139-40.

-5- concerning the statute of limitations. He has thus waived the

issue and cannot show that the district court erred in dismissing

these claims.12

Dorsett also argues that the district court should have

recused itself pursuant to 28 U.S.C. § 455(a). He contends that

the district court’s unexplained rulings on various motions call

the district court’s impartiality into doubt. An appellant’s

references to the district court’s adverse rulings are insufficient

to support his claim of judicial bias.13 Dorsett has failed to show

that the district court abused its discretion by denying his

recusal motions.

CASES CONSOLIDATED; AFFIRMED.

12 See Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002); Yohey, 985 F.2d at 224-25. 13 See United States v. Mizell, 88 F.3d 288, 299-300 (5th Cir. 1996).

-6-