Liptak v. Banner

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 9, 2003
• Docket: 02-10917
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 9, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-10917 Summary Calendar

VIRGIL F. LIPTAK,

Plaintiff-Appellant,

versus

PAUL BANNER, State Judge; JOHN OVARD, State Judge; CRAIG FOWLER, Attorney at Law, State Judge; RAY HICKS, Deputy Sheriff; ELIZABETH THORNHILL; DANIEL SHEEHAN & ASSOCIATES; DAVID EVANS, State Judge; KERRY THORNHILL; STRASBURGER and PRICE, LLP; JACKSON & WALKER, LLP,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:01-CV-953-M --------------------

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Virgil F. Liptak appeals from the district

court’s dismissal with prejudice of his complaint seeking

declaratory and other relief against the Defendants-Appellees. The

district court dismissed Liptak’s complaint on the ground, inter

alia, that the court lacked subject-matter jurisdiction over the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. complaint because it is, in effect, an attempt to litigate and

relitigate matters already adjudicated in state or federal court.

A district court’s dismissal for lack of subject matter

jurisdiction is reviewed de novo. See Williams v. Dallas Area

Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001).

Liptak argues on appeal that the Texas “Vexatious Litigant”

statute is unconstitutional, and he should have received a jury

trial on this issue. Many of the claims in Liptak’s complaint,

including his challenge to the Texas “Vexatious Litigant” statute,

were inextricably intertwined with the state court decisions

involving his claims against Elizabeth Thornhill. Accordingly, the

district court properly dismissed Liptak’s previously-litigated

claims for lack of subject-matter jurisdiction. See United States

v. Shepherd, 23 F.3d 923, 924 (5th Cir. 1994).

Liptak contends that the district court judge erred in denying

Liptak’s his request that she recuse herself. Liptak’s

speculative, unsupported allegations of bias and references to the

district court’s adverse rulings are insufficient grounds for

recusal. See United States v. Mizell, 88 F.3d 288, 299-300 (5th

Cir. 1996); United States v. Miranne, 688 F.2d 980, 985 (5th Cir.

1982). The district court did not abuse its discretion by denying

Liptak’s motion for recusal. See United States v. Harrelson, 754

F.2d 1153, 1165 (5th Cir. 1985).

Liptak also asserts that the district court erred in denying

his motion for appointment of counsel. As Liptak conceded that he

2 was financially able to afford retained counsel, the district court

did not abuse its discretion in refusing to appoint counsel. See

Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

Liptak also complains that the district court improperly

dismissed his conspiracy claims as insufficiently pleaded because

they were based solely on circumstantial evidence. He

mischaracterizes the basis for dismissal. Our examination of the

district court’s orders of dismissal shows that Liptak’s conspiracy

claims were properly dismissed because they consisted solely of

conclusional allegations, not circumstantial evidence. See

Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999).

Accordingly, the district court’s judgment is

AFFIRMED.