Govea v. ATF

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 2, 2006
• Docket: 06-10507
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS F I L E D FOR THE FIFTH CIRCUIT November 2, 2006

Charles R. Fulbruge III No. 06-10507 Clerk Summary Calendar

FERNANDO E GOVEA

Plaintiff - Appellant

v.

ATF, Bureau of Alcohol, Tobacco, Firearms and Explosives; BREEDERS’ CUP LTD; MEC LONE STAR PARK; MAGNA ENTERTAINMENT CORP; TEXAS RACING COMMISSION; GRAND PRAIRIE SPORTS FACILITIES DEVELOPMENT CORP; CITY OF GRAND PRAIRIE; GREG STANKAVICH; PAULA FLOWERDAY; CHARLES HALLAM; TOM NEELY; JOHN DOE, Lone Star Park Employee (LSPE) #1-#2 in their individual capacities; JOHN DOE, Grand Prairie Police Officers (cops), #1-#4, in their individual capacities; JOHN DOE, ATF Agents (atf), #1-#2 in their individual capacities

Defendants - Appellees

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05-CV-658

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Fernando Govea, proceeding pro se,

appeals the district court’s judgment dismissing his claims. For

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 I. Factual Background

In his complaint, plaintiff-appellant Fernando Govea

(“Govea”) alleges the following facts.1 Govea attended the horse

races at Lone Star Park in Grand Prairie, Texas, on the day

before the facility was to host the Breeders’ Cup, a national

horse racing event. While sitting in the viewing area, Govea

sketched some of the architectural elements of the facility. Two

security guards investigated, and Govea showed them his drawings,

which also included images of pigs in military uniforms and human

victims of a U.S. bombing. When the police arrived, Govea went

to a room where he was frisked and questioned further. Some of

the questions concerned Govea’s political and religious beliefs

as reflected in the drawings. Ultimately, Govea was escorted out

of the facility, and agents of the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (“ATF”) conducted a dog sniff and visual

inspection of Govea’s van.

Govea filed suit alleging federal causes of action under 42

U.S.C. § 2000a-3, § 1983, and § 1985, seeking damages, injunctive

relief, and declaratory relief, as well as state law claims for

theft, unlawful restraint, discrimination, and breach of

contract. The district court dismissed Govea’s federal claims

1 Govea’s complaint comprises seventy-two single-spaced pages of long passages mixing arguments, facts, religious text, and legal quotes, but the relevant facts are compiled near the beginning of the complaint.

2 and declined to retain jurisdiction over Govea’s state claims.2

II. Standard of Review

Our review of a district court’s grant of a 12(b)(6) motion

is de novo. Martin K. Eby Constr. Co. v. Dallas Area Rapid

Transit, 369 F.3d 464, 467 (5th Cir. 2004). In this inquiry, we

“accept all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d

322, 324 (5th Cir. 1999) (per curiam). Because Govea is

appearing pro se, we hold his complaint “‘to less stringent

standards than formal pleadings drafted by lawyers.’” Taylor v.

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting

Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). However,

even when a plaintiff is proceeding pro se, “‘the complaint must

contain either direct allegations on every material point

necessary to sustain a recovery . . . or contain allegations from

which an inference fairly may be drawn that evidence on these

material points will be introduced at trial.’” Campbell v. City

of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (quoting 3 WRIGHT

2 The individual capacity claims against the police officers are not before this court, as the record does not reflect that Govea ever identified the police officers or served them, and neither the officers nor the city have filed anything on the officers’ behalf. See FED. R. CIV. P. 4; Attwell v. LaSalle Nat’l Bank, 607 F.2d 1157, 1159 (5th Cir. 1979). Further, Govea has not briefed any error related to this issue, and any argument that these claims were improperly dismissed has been abandoned. See FED. R. APP. P. 28(a)(9)(A); St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 445 (5th Cir. 2000); Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).

3 & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1216 at 156-59).

This court need not “‘conjure up unpled allegations or construe

elaborately arcane scripts to’ save a complaint.” Id. (quoting

Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)).

We review the district court’s decision to decline jurisdiction

over state claims for abuse of discretion. Parker & Parsley

Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir.

1992).

III. Discussion

As an initial matter, Govea’s claims for injunctive and

declaratory relief were properly dismissed, because Govea has

made no allegations that would entitle him to such relief. See

Bass v. Parkwood Hosp., 180 F.3d 234, 245 (5th Cir. 1999)

(“[T]here is no allegation suggesting that [Plaintiff] is likely

to again suffer from [Defendants’] discriminatory actions.”);

Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir.

1998); Adams v. McIlhany, 764 F.2d 294, 299 (5th Cir. 1985).

This also disposes of Govea’s § 2000a-3 claims, as the statute

only allows prospective relief, not damage awards. See 42 U.S.C.

§ 2000a-3; Bass, 180 F.3d at 244.

In the remaining claims, Govea has not only sued government

agents and entities, but private parties as well. Govea’s § 1983

claims against these defendants were properly dismissed because

he failed to allege any facts that could conceivably support the

4 requisite state action under color of law. See Morris v. Dillard

Dep’t Stores, Inc., 277 F.3d 743, 747-48 (5th Cir. 2001)

(discussing the state action requirement). Govea has alleged

facts showing not the existence of a preconceived plan for

abdication of state authority to the private parties, but rather

facts showing that the government actors independently

investigated Govea with minimal involvement by the private

parties. These allegations are insufficient to establish state

action. See id. at 749; Sims v. Jefferson Downs Racing Ass’n,

Inc., 778 F.2d 1068, 1078-79 (5th Cir. 1985); see also Lansing v.

City of Memphis, 202 F.3d 821, 833 (6th Cir. 2000). And it is

well established that the facts alleged by Govea are insufficient

to show a “symbiotic” relationship between Lone Star Park and

government entities. See Fulton v. Hecht, 545 F.2d 540, 541-43

(5th Cir. 1977) (holding similar facts insufficient to show state

action by a greyhound race park); see also Rendell-Baker v. Kohn,

457 U.S. 830, 842-43 (1982); Jackson v. Metro. Edison Co., 419

U.S. 345, 350 (1974). Because Govea has alleged no other facts

that could show “a sufficiently close nexus between the State and

the challenged action of the [private entities] so that the

action of the latter may be fairly treated as that of the State

itself,” Jackson, 419 U.S. at 351, his § 1983 claims against the

private defendants were properly dismissed.

Although Govea’s § 1985 claims do not require state action,

they do require a conspiracy to discriminate based on “some

5 class-based animus.” See 42 U.S.C. § 1985; Newberry v. E. Tex.

State Univ., 161 F.3d 276, 281 (5th Cir. 1998). Dismissal of

these claims against all defendants was proper because Govea has

not alleged a conspiracy, a class-based animus, or any facts that

would show either.

Additionally, Govea’s failure to allege the existence of a

relevant municipal policy or custom, or any facts showing such a

policy or custom, renders appropriate the dismissal of his claims

against the City of Grand Prairie and the Grand Prairie Sports

Facilities Development Corp. Monell v. Dep’t of Social Servs.,

436 U.S. 658, 691-94 (1978); Meadowbriar Home for Children, Inc.

v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996). Govea’s vague

allegations that the City of Grand Prairie has racially

disproportionate rates of traffic stops are irrelevant to his

claims here. And although Govea generally alleges that the city

failed to consider the legality of security practices and

training, he does not allege that this failure has anything to do

with the actions of the police officers here.

Govea’s claims against the ATF were also properly dismissed,

as Bivens actions are unavailable against federal agencies. FDIC

v. Meyer, 510 U.S. 471, 486 (1994). Further, because § 1983

claims are unavailable against state agencies and state officials

acting in their official capacities, dismissal of those claims

against the Texas Racing Commission, as well as Paula Flowerday,

Charles Hallam, and Tom Neely in their official capacities, was

6 correct. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989); Brandley v. Keeshan, 64 F.3d 196, 200 (5th Cir. 1995).

It is unclear whether Govea also intended to sue Paula

Flowerday, Charles Hallam, and Tom Neely in their individual

capacities, but regardless, these claims were properly dismissed.

Govea’s conclusory deliberate indifference claims are unconnected

to the actual constitutional violations he claims occurred; he

merely alleges a general, unrelated deficiency in the job

performance of state employees. Moreover, Govea’s due process

claims are unfounded, as the hearing he sought requires expulsion

under a rule of the Texas Racing Commission, which he did not

allege. TEX. REV. CIV. STAT. ANN. art. 179e, § 13.02 (Vernon Supp.

2005). Govea also asserts no coherent legal basis for his claim

that the Equal Protection Clause of the Fourteenth Amendment was

violated by the officials’ failure to revoke Lone Star Park’s

racing license.

Govea’s individual capacity claims against the ATF agents

were properly dismissed as well. The ATF agents asserted a

qualified immunity defense and Govea failed to meet the

requirement “that plaintiffs suing governmental officials in

their individual capacities must allege specific conduct giving

rise to a constitutional violation.” Anderson v. Pasadena Indep.

Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). Specifically,

Govea’s claims under the First, Fifth, and Fourteenth Amendments

7 are conclusory and unsupported by any factual allegations, and

Govea’s Fourth Amendment claim fails to allege any facts that

could possibly show an unlawful search or seizure on the part of

the ATF. See, e.g., United States v. Seals, 987 F.2d 1102, 1106

(5th Cir. 1993) (“A dog ‘sniff’ is not a search.”); United States

v. Price, 869 F.2d 801, 804 (5th Cir. 1989) (holding that “a

visual inspection of the vehicle, which included looking . . .

under the vehicle” was not a search “[b]ecause the items observed

were in plain view”). Even under the standard pleading

requirement, these allegations would be insufficient to withstand

a motion to dismiss.3

Finally, the district court did not abuse its discretion in

declining to retain jurisdiction over Govea’s state law claims.

The district court’s consideration of judicial economy,

convenience, fairness, and comity was well within its discretion.

Parker & Parsley Petroleum Co., 972 F.2d at 586-87.

IV. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

judgment.

3 Because we resolve this appeal on the grounds detailed above, we do not reach the question of whether this court should revisit the res judicata effect of a dismissal under 28 U.S.C. § 1915(e)(2).