Farwell v. Rushing

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 7, 2024
• Docket: 22-20157
• Status: Unpublished

Opinion

Case: 22-20157 Document: 150-1 Page: 1 Date Filed: 11/07/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 22-20157 FILED November 7, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk Spencer Farwell; Selena Mcdade,

Plaintiffs—Appellants,

versus

Kraig L. Rushing,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CV-517 ______________________________

Before Jones, Dennis, and Southwick, Circuit Judges. Per Curiam: * Spencer Farwell and Selena Mcdade filed a civil lawsuit alleging, amongst other things, that their privately retained attorney Kraig L. Rushing violated their right to due process and committed legal malpractice. After determining that Farwell and Mcdade did not allege any federal claims and that the parties were not diverse, the district court granted Rushing’s motion

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-20157 Document: 150-1 Page: 2 Date Filed: 11/07/2024

No. 22-20157

to dismiss. On appeal, Farwell and Mcdade reassert their arguments that Rushing violated their right to due process and committed legal malpractice. To the extent that Farwell and Mcdade raise additional arguments in their reply brief, we generally do not consider arguments raised for the first time in a reply brief. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Although pro se filings are afforded liberal construction, even pro se litigants must brief arguments to preserve them. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). By failing to address or identify any error in the district court’s determination that it lacked subject matter jurisdiction over Rushing, Farwell and Mcdade have waived review of the district court’s dismissal of the complaint as to Rushing. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Regardless, the district court did not err in determining that it lacked federal question jurisdiction over Rushing. Farwell’s and Mcdade’s claims against Rushing are not cognizable because “the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citations omitted). Moreover, to the extent that they assert that Rushing conspired against them in violation of 18 U.S.C. §§ 241 and 242, these are criminal statutes that do not provide for a private right of action. See Ali v. Shabazz, No. 93-2495, 1993 WL 456323 (5th Cir. Oct. 28, 1993) (unpublished). 1 The district court lacked federal question jurisdiction over Rushing, see 28 U.S.C. § 1331, and there is no dispute that diversity jurisdiction is absent, see 28 U.S.C. § 1332. AFFIRMED.

_____________________ 1 “Unpublished opinions issued before January 1, 1996, are precedent.” 5th Cir. R. 47.5.3.