White v. Commty Bancshares MS

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 9, 2001
• Docket: 00-60719
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60719 Summary Calendar

ANTHONY CHESTER WHITE, Plaintiff-Appellant,

versus

COMMUNITY BANCSHARES OF MISSISSIPPI, INC., doing business as Community Bank of Mississippi; COMMUNITY BANK, of Indianola Inc., referred to collectively as “Community Bank” and formerly known as Peoples Bank of Mississippi; FREDDIE J. BAGLEY; THOMAS COLBERT, Defendants-Appellees.

_____________________________________________________________

COMMUNITY BANCSHARES OF MISSISSIPPI, INC.; COMMUNITY BANK, Indianola, Mississippi; COMMUNITY BANK OF MISSISSIPPI; FREDDIE J. BAGLEY; THOMAS COLBERT, Plaintiffs-Appellees,

ANTHONY CHESTER WHITE, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:98-CV-798-WS c/w USDC No. 3:98-CV-799-WS -------------------- May 9, 2001

Before DAVIS, JONES and DeMOSS, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-60719 -2-

Community Bancshares of Mississippi, Inc. (the Bank) filed a

civil action in the chancery court of Rankin County, Mississippi,

against Anthony Chester White. White removed this action to

federal court. White also filed a separate complaint against the

Bank in federal court alleging jurisdiction under 42 U.S.C.

§ 1985 and the Employee Retirement Income Security Act of 1974

(ERISA). The district court consolidated the two actions.

The district court remanded the Bank’s complaint to state

court for lack of federal-question jurisdiction. We are without

jurisdiction to review the remand. 28 U.S.C. § 1447(d);

Albarado v. S. Pac. Transp. Co., 199 F.3d 762, 764 (5th Cir.

1999).

In accordance with Fed. R. Civ. P. 12(b)(6) the district

court dismissed White’s complaint for failure to state a claim.

We review the Rule 12(b)(6) dismissal de novo. Barrientos v.

Reliance Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir.

1990). We construe all of the allegations in the complaint

favorably to White and accept as true all well-pleaded facts in

the complaint. See Kaiser Aluminum & Chem. Sales, Inc. v.

Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

White has failed to allege a cause of action under § 1985

because he has not alleged a private conspiracy to deprive him of

rights protected by the Equal Protection Clause and the Due

Process Clause. See Mississippi Women's Med. Clinic v. McMillan,

866 F.2d 788, 793 (5th Cir. 1989). Section 1985(3) "was designed

to prevent deprivation of equal protection of the laws and equal

privileges and immunities, not to serve as a general federal tort No. 00-60719 -3-

law that would permit a suit for fraud or breach of contract."

Jackson v. Cox, 540 F.2d 209, 210 (5th Cir. 1976).

White argues that he has stated a claim on which relief can

be granted under ERISA, 29 U.S.C. § 1132(a). "[A] denial of

benefits challenged under §1132(a)(1)(B) is to be reviewed under

a de novo standard unless the benefit plan gives the

administrator or fiduciary discretionary authority to determine

eligibility for benefits or to construe the terms of the plan."

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

White has not alleged that he has requested benefits as specified

under the various benefit plans. "An ERISA cause of action

accrues when a request for benefits is denied." Hogan v. Kraft

Foods, 969 F.2d 142, 145 (5th Cir. 1992). The district court did

not err in dismissing this claim.

White’s appeal from the district court's dismissal of his

complaint and the remand to the state court of the Bank’s suit is

without merit and is thus frivolous. IT IS DISMISSED. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir.

R. 42.2.

The Bank’s motion to dismiss the remand portion of the

appeal is DENIED AS UNNECESSARY.

APPEAL DISMISSED; MOTION DENIED AS UNNECESSARY.