Hagan v. Coggins

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-11272 Summary Calendar

JOHN HAGAN,

Plaintiff-Appellant,

versus

PAUL COGGINS, an individual; JOHN DOE, and Other Unknown Named Agents of the Department of Justice, Northern District of Texas; DEPARTMENT OF JUSTICE, Northern District of Texas; GERALD BUCKMEYER, an Individual; SCOTT SCHER, an Individual; RICHARD FOGEL, an Individual,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:99-CV-878-E - - - - - - - - - - June 29, 2001 Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

John Hagan appeals the dismissal of his claims pursuant to

the Racketeering Influenced and Corrupt Organizations Act, 18

U.S.C. §§ 1961-1968, and Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971). The district court dismissed sua sponte his

claims against defendants Scott Scher and Richard Fogel for

failure to state a claim on which relief could be granted, and

granted summary judgment in favor of defendants Gerald Buchmeyer

and Paul Coggins. Hagan argues that the district court’s failure

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-11272 -2-

to grant him discovery prior to its dismissal of his Bivens

claims represents a substantial departure from the Supreme

Court’s decision in Crawford-El v. Britton, 523 U.S. 574 (1998),

since the severity of the abuse of office alleged in that case

“pales by comparison to the abuse alleged by Hagan.” The

district court in this case followed the procedure outlined in

Crawford-El by directing Hagan to amend his complaint prior to

its dismissal of his Bivens claims. It therefore provided Hagan

with the opportunity to show a need for discovery. He failed to

do so. This argument is without merit.

Hagan argues that Buchmeyer was not entitled to immunity

because Buchmeyer had knowledge of disputed evidentiary facts.

Hagan contends that Buchmeyer was in possession of an FBI report

which substantiated his claims against Coggins in an earlier

lawsuit against Coggins. Hagan’s pleadings provided no factual

basis for the existence of the aforementioned FBI report.

Hagan’s assertions on appeal provide no factual or legal support

for this claim. Moreover, Hagan’s claims against Buchmeyer were

dismissed on summary judgment, without a ruling on the immunity

issue. This argument is without merit.

Hagan argues that because Coggins is a supervisory official,

he may be held liable in a Bivens action if the plaintiff can

show personal involvement in the acts causing the deprivation of

constitutional rights. Hagan asserts that he satisfied this

requirement in his first amendment to his original complaint.

The district court disagreed, and Hagan has presented no factual

support for Coggins’s alleged personal involvement. Nor has he No. 00-11272 -3-

submitted legal argument challenging the reasoning behind the

district court’s findings. This argument is frivolous.

Hagan asserts that he pleaded personal actions taken by

Scher and Fogel in furtherance of a conspiracy to deprive him of

his constitutional right to pursue legal action against the law

firm of Kasmir & Krage, against Coggins, and against Dave Stieber

and Drew Campbell. He then asserts that Scher’s failure to

produce an affidavit pursuant to 28 U.S.C. § 2014(a), even after

subpoena, is indicative that such a conflict existed. Insofar as

he is attempting to challenge the dismissal of Scher and Fogel,

Hagan has failed to adequately brief the issue. It is therefore

waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

Hagan attempts to challenge the dismissal of his civil RICO

claims with the same sort of conclusory allegations prevalent in

his district court pleadings. This argument contains no citation

to legal authority other than for an irrelevant general

proposition. The district court found that Hagan had not alleged

facts from which the existence of a continuing RICO enterprise

could be inferred, and because the association-in-fact enterprise

pleaded by Hagan lacked continuity, Hagan could prove no set of

facts in support of a civil RICO claim against the defendants.

See Crowe v. Henry, 43 F.3d 198, 204 (5th Cir. 1995). Hagan does

not point to facts sufficient to support his RICO claim. Nor

does he make any legal argument challenging the district court’s

reasons for dismissing his RICO claims. To the extent that this

can be construed as an argument, he has failed to brief it No. 00-11272 -4-

adequately. It is therefore waived. See Yohey, 985 F.2d at 224-

25.

Hagan has failed to show that the district court erred in

dismissing his claims against Scher and Fogel or in granting

summary judgment in favor of Buchmeyer and Coggins.

AFFIRMED.