George v. Ross

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 25, 2001
• Docket: 00-60784
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60784 Summary Calendar

RICKEY E. GEORGE, by and through his next friends, Bill H. Cockrell and Harry W. Vinson,

Plaintiff-Appellant,

versus

JOHN C. ROSS, JR.; JACQUELINE ESTES MASK; CHARLES THOMAS; WILLIAM (BILL) BENSON, and his agents and his assigns and his Insurance Carrier, State Farm Fire and Casualty Co.; MICHAEL BERTHAY, and his Insurance Carrier to be named after Discovery; VETERAN’S ADMINISTRATION HOSPITAL, Jackson, Mississippi, and its Administrator, and its John Doe Insurance Carrier to be named after Discovery; MISSISSIPPI STATE HOSPITAL AT WHITFIELD, MISSISSIPPI, and its John Doe Insurance Carrier to be named after Discovery; ALL OTHERS UNKNOWN; JAMES CHASTAIN; RICHARD MILLER; STATE FARM FIRE AND CASUALTY COMPANY, agents and assigns and Insurance Carrier of William (Bill) Benson; G.V. (SONNY) MONTGOMERY Veterans Administration Medical Center, Jackson, Mississippi, and its Administrator, and its John Doe Insurance Carrier to be named after Discovery,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:99-CV-119-P -------------------- July 19, 2001 Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Rickey E. George appeals the district court’s dismissal of his

civil action for damages filed under 42 U.S.C. §§ 1983 and 1985

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-60784 -2-

against numerous defendants after a state civil proceeding resulted

in his commitment to a state psychiatric facility due to his

threats of violence. He argues that the district court erred in

dismissing his claims against Judges Charles D. Thomas, Jacqueline

E. Mask, and John C. Ross. Because George has not alleged facts

sufficient to support his claims that Thomas, Mask, and Ross were

not acting in their official capacity or were acting in the absence

of all jurisdiction, he has not shown that the district court erred

in holding that they were entitled to absolute judicial immunity.

See Mireles v. Waco, 502 U.S. 9, 11-12 (1991).

George argues that the district court erred in dismissing his

claims against William Benson and his surety, State Farm Insurance

Company. The district court’s judgment may be affirmed on any

ground supported by the record. See Sojourner T. v. Edwards, 974

F.2d 27, 30 (5th Cir. 1992). Benson was entitled to qualified

immunity for his actions taken in the scope of his official duties

as George has not alleged sufficient facts to state a claim that

Benson violated a specific constitutional right of George by

accepting pleadings for filing in the state commitment proceeding.

See Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001); Acoustic

Sys., Inc. v. Wenger Corp., 207 F.3d 287, 293-94 (5th Cir. 2000);

Williams v. Wood, 612 F.2d 982, 985 (5th Cir 1980). Further,

Benson had no authority or duty under Mississippi state law to set

a hearing for Benson’s state habeas petition. See Miss. Code Ann.

§ 11-43-15 (2001); Brooks v. George County, Miss., 84 F.3d 157, 169

(5th Cir. 1996). To the extent that George sought review of the

state commitment proceeding, the district court did not err in No. 00-60784 -3-

dismissing his action for lack of jurisdiction under the Rooker-

Feldman doctrine. United States v. Shepherd, 23 F.3d 923, 924 (5th

Cir. 1994)(citing Rooker v. Fid. Trust Co., 263 U.S. 413, 415

(1923); Dist. of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 476 (1983)).

George argues that the district court erred in setting aside

the default judgment against Michael Berthay and in dismissing his

claims against Berthay. George was not entitled to a default

judgment as of right even if Berthay was technically in default.

See Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996). Berthay

filed a motion to set aside the default judgment immediately after

learning of the default judgment setting forth the reasons for his

failure to file a responsive pleading; further, Berthay

subsequently filed a responsive pleading which the district court

considered timely filed. George has not shown that the court

abused its discretion in setting aside the default judgment. See

id. Because George was seeking review of the state court

commitment proceeding, the district court did not err in dismissing

his claim against Berthay due to lack of jurisdiction under the

Rooker-Feldman doctrine. See Shepherd, 23 F.3d at 924. George did

not allege sufficient facts to state a claim that Berthay conspired

with other defendants with the specific intent to violate his

constitutional rights under 42 U.S.C. §§ 1983 and 1985. See Kerr

v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999).

George argues that the district court erred in dismissing his

claims against Mississippi State Hospital and its administrator,

James Chastain, and the G.V.(Sonny) Montogmery V.A. Medical Center No. 00-60784 -4-

and its administrator, Robert Miller. Because George failed to

allege sufficient facts to state a claim that these defendants

acted in concert with the specific intent to violate his

constitutional rights based on his race or class, he has not shown

that the district court erred in dismissing this claim. See id.

George argues that the district court erred in granting the

motion to stay discovery filed by Judges Thomas, Mask, and Ross.

Because the district court stayed discovery of issues not related

to the immunity defense and because George did not allege

sufficient facts to overcome these defendants’ judicial immunity

defense, he has not shown that the district court erred granting

the defendants’ motion to stay discovery. See Richardson v. Henry,

902 F.2d 414, 417 (5th Cir. 1990).

George argues that the district court erred in holding that

Harry Vinson and Bill Cockrell would not be permitted to assist him

during proceedings in open court or in chambers in the instant

case. Because Vinson and Cockrell are not attorneys licensed to

practice in Mississippi or any other state, the district court did

not err in holding that George had no right to have them assist him

during proceedings in this case. See Wheat v. United States, 486

U.S. 153, 158 (1988); In re Estate of Dabney, 740 So. 2d 915, 921-

22 (Miss. 1999)(Miss. Code Ann. § 73-3-55 outlaws the practice of

law without a license).

AFFIRMED.