Jones v. Smith

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 19, 2000
• Docket: 99-51184
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 99-51184 Summary Calendar _____________________

JAMES STEPHEN JONES; GREGORY C. NIEMANN,

Plaintiffs-Appellants,

versus

WALTER S. SMITH, JR., United States District Judge, Western District of Texas, Waco Division; WILLIAM WILSON JOHNSTON, Assistant United States Attorney, Western District of Texas, Waco Division; JOHN PHINIZY, Assistant United States Attorney, Western District of Texas, Waco Division; BRAD WATSON, Special Agent, Drug Enforcement Agency; ROBERT WILKERSON, Agent with the Narcotics Division of the Department of Public Safety, Waco Division; GEORGE MAYBEN, Narcotics Investigator for Department of Public Safety; J. R. SLOUGH, Chief Deputy of Hamilton County, Texas; RONALD HUDSON MOODY; STAN SCHWIEGER; JEFFEREY BRZOZOWSKI; JOEL BUDGE,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (A-99-CV-549-JN) _________________________________________________________________

June 13, 2000

Before SMITH, BARKSDALE, and DENNIS, 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. James Stephen Jones, federal prisoner #56081-080, and Gregory

C. Niemann, federal prisoner #26468-080, appeal the dismissal, as

frivolous, of their action under the Racketeer Influenced and

Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. They

contend the district court abused its discretion in so dismissing

pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Because the

RICO action constitutes a challenge to the fact or duration of the

confinement of Jones and Niemann, they are precluded from filing

the action until their challenged convictions have been reversed,

declared invalid, or otherwise impugned. See Stephenson v. Reno,

28 F.3d 26, 27-28 (5th Cir. 1994)(citing Heck, 512 U.S. at 486-87).

Niemann has shown that his challenged conviction has been

called into question; but, he has not shown that the challenged

conviction has been reversed or declared invalid. One of Jones’

several convictions, that under 18 U.S.C. § 924(c) for using and

carrying a firearm during a drug-trafficking offense, has been

vacated pursuant to Bailey v. United States, 516 U.S. 137 (1995).

But, even assuming vacating one of several convictions satisfies

the Heck bar, the judgment may be affirmed on the alternative

ground that Jones has not alleged sufficient facts to state any

RICO claims against the defendants. See United States v. McSween,

53 F.3d 684, 687 n.3 (5th Cir.), cert. denied, 516 U.S. 874 (1995).

Jones and Niemann contend for the first time on appeal that

2 the district court violated their due process and equal protection

rights by applying Heck to their RICO claims. They have not

demonstrated plain error. See Robertson v. Plano City of Texas, 70

F.3d 21, 22-23 (5th Cir. 1995). Heck has been applied to a Bivens

action which also raised RICO claims. Stephenson, 28 F.3d at 27-

28.

Jones and Niemann assert that the district court erred in

adopting the magistrate judge’s report and recommendation without

addressing their objections. Any error was harmless, because

Niemann did not show in his objections that the district court

erred in concluding his RICO claims were precluded by Heck. And,

as noted, the dismissal of Jones’ action may be affirmed on the

alternative ground that Jones failed to allege sufficient facts to

state a RICO claim.

Jones and Niemann contend that, after recusing himself, Judge

Walter S. Smith, Jr., was without authority to transfer the case to

Judge James R. Nowlin. They do not cite any authority to support

their contention and have not shown that Judge Smith acted without

authority or improperly.

Jones and Niemann contend that the district court erred in not

reviewing the magistrate judge’s denial of their motion to recuse

Judge Nowlin; they maintain that the magistrate judge did not have

authority to rule on the motion. Pursuant to 28 U.S.C. § 636(b),

the district court referred all pretrial matters to the magistrate

3 judge. Thus, the magistrate judge had authority to rule on the

motion to recuse. Because Jones and Niemann did not show that

Judge Nowlin was biased or prejudiced, they have not shown that the

magistrate judge erred. See United States v. MMR Corp., 954 F.2d

1040, 1044 (5th Cir. 1992) (28 U.S.C. § 144); United States v.

Harrelson, 754 F.2d 1153, 1165 (5th Cir.) (28 U.S.C. § 455), cert.

denied, 474 U.S. 908, 1034 (1985).

For the first time on appeal, Jones and Niemann contend that

Judge Nowlin retaliated against them by threatening to impose

sanctions for exercising their First Amendment rights. Once again,

they have not demonstrated plain error. Needless to say, the

district court had discretion to warn that filing frivolous actions

in the future would result in the imposition of sanctions. This

warning did not violate First Amendment rights. See Mendoza v.

Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

AFFIRMED