Wright v. State of Texas

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20728 Summary Calendar _____________________

WENDY WRIGHT, ET AL.,

Plaintiffs,

WENDY WRIGHT,

Plaintiff-Appellant,

versus

STATE OF TEXAS, ET AL.,

Defendants-Appellees,

STATE OF TEXAS; PLANNED PARENTHOOD OF HOUSTON AND SOUTHEAST TEXAS, INC.; HOUSTON WOMEN'S CLINIC, INC.; WOMEN'S PAVILION INC.; WOMEN'S MEDICAL CENTER OF NORTHWEST HOUSTON; AAA CONCERNED WOMEN'S CENTER, INC.; AARON'S FAMILY PLANNING CENTER OF HOUSTON, INC.; DOWNTOWN WOMEN'S CENTER, INC.; WEST LOOP CLINIC; MEDICAL CENTER WOMEN'S CLINIC; SUBURBAN WOMEN'S CLINIC; O'CONNOR & COMPANY, doing business as Adkins Architectural Antiques; BRIAN G. MARTINEZ, D.D.S.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. CA-H-94-2755 _________________________________________________________________

May 14, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Wendy Wright, proceeding pro se, appeals the dismissal of her

complaint, which was dismissed on the basis that her claims were

res judicata because they had been adjudicated in state court.

Wright contends that the state court judgment was void because the

state court judge conspired with the defendants against her and the

other district court plaintiffs. She also contends that the

district court action was not res judicata because there was no

final judgment on the merits of the state court action; because the

state court grant of summary judgment did not dispose of claims as

to which there were material factual issues; because new claims

were raised in the federal action that could not have been raised

in the state court action; and because the plaintiffs raised claims

in their federal action that were new and independent from their

state court action.

We will not consider the allegations Wright makes for the

first time on appeal about the state court judge’s personal and

professional relationships with the attorneys for the defendants.

Resolution of those allegations would require us to make factual

determinations. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.

1991). The allegations that the state court judge conspired with

the defendants solely because she favors legalized abortion are

conclusional and are insufficient to support a claim under 42

U.S.C. § 1983. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir.

1992).

-2- With the exception of her conspiracy argument, Wright does not

brief her res judicata contentions beyond merely stating them; she

has failed to brief those contentions and has therefore abandoned

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

However, because the following issues were raised by the appellees

and responded to by Wright, we will proceed to address them.

Stephens v. C.I.T. Group/Equipment Financing, Inc., 955 F.2d 1023,

1026 (5th Cir. 1992).

First, Wright was a party to the state court action when the

state court granted summary judgment on most of the plaintiff’s

claims. Wright’s contention that her later dismissal from the

lawsuit rendered the summary judgment against her without effect is

incorrect.

Second, assuming that the plaintiffs’ state court malicious

prosecution and § 1983 claims were nonsuited without prejudice, as

they alleged in the district court, those claims would not be

barred as res judicata in a federal action. See KT Bolt Mfg. Co.

v. Texas Elec. Coops., 837 S.W.2d 273, 275 (Tex. Ct. App. 1992).

Because the plaintiffs’ conspiracy allegations against the state

court judge were insufficient to state a § 1983 claim, they are

insufficient to support claims of state action against the

remaining defendants, none of whom are otherwise state actors.

Hobbs v. Hawkins, 968 F.2d 471, 480 (5th Cir. 1992). Additionally,

the plaintiffs’ state law malicious prosecution action was barred

by the applicable one-year statute of limitations. Patrick v.

-3- Howard, 904 S.W.2d 941, 943-44 (Tex. Ct. App. 1995); Guaranty

County Mut. Ins. Co. v. Reyna, 700 S.W.2d 325, 327 (Tex. Ct. App.

1985); TEX. CIV. PRAC. & REM. CODE ANN. § 16.002(a)(West supp. 1996).

Finally, the appellees’ motions for sanctions against Wright are

DENIED.

The judgment of the district court is therefore

A F F I R M E D.

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