Isidoro Rodriguez v. Jane Doe ( 2013 )


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  •                            UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 13-1638
    ISIDORO RODRIGUEZ,
    Plaintiff - Appellant,
    v.
    JANE DOE, Member of the Virginia State Bar Disciplinary
    Board ("Board"), sued as individual of an unauthorized
    entity; JOHN DOE, Member of the Virginia State Bar
    Disciplinary Board ("Board"), sued as individual of an
    unauthorized entity; CYNTHIA D. KINSER, sued as individual;
    DONALD W. LEMONS, sued as individual; S. BERNARD GOODWYN,
    sued as individual; LEROY F. MILLETTE, JR., sued as
    individual; WILLIAM C. MIMS, sued as individual; ELIZABETH
    A. MCCLANAHAN, sued as individual; CLEO E. POWELL, sued as
    individual;    CHARLES  S.  RUSSELL,   sued  as   individual;
    ELIZABETH B. LACY, sued as individual; LAWRENCE L. KOONTZ,
    sued as individual; JANE DOE, Officer of the Virginia State
    Bar, sued as individual; JOHN DOE, Officer of the Virginia
    State Bar, sued as individual; KENNETH T. CUCCINELLI, II,
    sued   as   individual;  CATHERINE   CROOKS HILL,   sued   as
    individual; JANE DOE, Officer/Member of the Virginia
    Employment Commission, sued as individual; JOHN DOE,
    Officer/Member of the Virginia Employment Commission, sued
    as individual; JOHN G. ROBERTS, Justice of the United States
    Supreme Court; WILLIAM K. SUTER, Justice of the United
    States Supreme Court; MEMBERS OF THE U.S. COURT OF APPEALS
    FOR THE DISTRICT OF COLUMBIA CIRCUIT, sued as individuals;
    MEMBERS OF THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT,
    sued as individuals; MEMBERS OF THE U.S. COURT OF APPEALS
    FOR THE THIRD CIRCUIT, sued as individuals; MEMBERS OF THE
    U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT, sued as
    individuals; MEMBERS OF THE U.S. COURT OF APPEALS FOR THE
    FEDERAL CIRCUIT, sued as individuals; MEMBERS OF THE
    DISTRICT OF COLUMBIA COURT OF APPEAL AND COMMITTEE ON
    ADMISSIONS, sued as individuals; LEONIE M. BRINKEMA, sued in
    her individual capacity; RICHARD W. ROBERTS, sued in
    individual capacity; PAUL L. FRIEDMAN, sued in individual
    capacity; JAMES E. BOASBERG, sued in individual capacity;
    JOHN O. COLVIN, sued in individual capacity; L. PAIGE
    MARVEL, sued in individual capacity; RICHARD T. MORRISON,
    sued in individual capacity; LAURENCE J. WHALEN, sued in his
    individual capacity; DOUGLAS SHULMAN, sued in his individual
    capacity; ERIC HOLDER, sued in individual capacity; RICHARD
    A. SCHWARTZ, sued in his individual capacity; OFFICE OF THE
    ASSISTANT U.S. ATTORNEY, EASTERN DISTRICT OF VIRGINIA, sued
    in individual capacity; OFFICE OF THE ASSISTANT U.S.
    ATTORNEY FOR D.C., sued in individual capacity; OFFICE OF
    THE ASSISTANT U.S. ATTORNEY FOR THE EASTERN DISTRICT OF
    PENNSYLVANIA, sued in individual capacity; OFFICE OF THE
    ASSISTANT U.S. ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW
    YORK, sued in individual capacity; JAMES LEROY BANKS, sued
    as individual; WILLIAM ETHAN GLOVER, sued as individual;
    STEPHEN A. WANNALL, sued as individual; GLENN M. HODGE, sued
    as   individual;  WILLIAM  CARLYLE   BOYCE,  JR.,   sued  as
    individual; JACK HARBESTON, sued individually and as alter
    ego HFP, Inc., IOTA Partners, and Sea Search Armada LLC
    (DE); JANE/JOHN DOES, AND DOE ENTITIES; UNITED STATES OF
    AMERICA,
    Defendants - Appellees.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Richmond.     John A. Gibney, Jr.,
    District Judge. (3:12-cv-00663-JAG)
    Submitted:   November 22, 2013            Decided:   December 11, 2013
    Before Ed CARNES, Chief Judge of the United States Court of
    Appeals for the Eleventh Circuit, sitting by designation, and
    William H. PRYOR, Jr., Circuit Judge of the United States Court
    of Appeals for the Eleventh Circuit, sitting by designation, and
    Joel F. DUBINA, Circuit Judge of the United States Court of
    Appeals for the Eleventh Circuit, sitting by designation.
    Affirmed by unpublished per curiam opinion.
    Isidoro Rodriguez, Appellant Pro Se.       Farnaz Farkish, OFFICE OF
    THE ATTORNEY GENERAL OF VIRGINIA,          Richmond, Virginia, for
    2
    Commonwealth Appellees.   Jonathan Holland Hambrick, Assistant
    United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
    Richmond, Virginia, for the United States.  James S. DelSordo,
    ARGUS LEGAL, LLC, Manassas, Virginia, for Appellee Jack
    Harbeston.
    Unpublished opinions are not binding precedent in this circuit.
    3
    PER CURIAM:
    Appellant       Isidoro     Rodriguez,        a     disbarred        attorney
    proceeding pro se, appeals the district court’s dismissal of his
    claims alleging treason, Va. Code Ann. §§ 18.2-481(5), 18.2-482;
    Racketeering     Influenced      and        Corruption       Organization     Acts
    (“RICO”)   violations,    18    U.S.C.       § 1962(c)    and    Va.   Code   Ann.
    § 18.2-514; and a business conspiracy, Va. Code Ann. § 18.2-499;
    and seeking a writ quo warranto for misuse of office, Va. Code
    Ann. § 8.01-636. 1    On appeal, Rodriguez argues that the district
    court’s dismissal of his complaint with prejudice—on the grounds
    that his claims were barred by res judicata, the Rooker-Feldman 2
    doctrine, judicial immunity, and failure to state a claim—was
    erroneous.       Rodriguez     also    challenges      the    district    court’s
    imposition of sanctions after he filed his notice of appeal from
    the district court’s dismissal of his complaint.
    I.
    We    review     dismissals       for      lack     of     subject     matter
    jurisdiction and failure to state a claim de novo.                     Cooksey v.
    1
    Rodriguez has abandoned any claim regarding a writ quo
    warranto because he did not offer argument on the writ in his
    initial brief. See Cavallo v. Star Enter., 
    100 F.3d 1150
    , 1152
    n.2 (4th Cir. 1996).
    2
    Rooker v. Fid. Trust Co., 
    263 U.S. 413
    , 
    44 S. Ct. 149
    (1923); District of Columbia Court of Appeals v. Feldman, 
    460 U.S. 462
    , 103 S.Ct. 1303(1983).
    4
    Futrell,    
    721 F.3d 226
    ,     234    (4th       Cir.        2013)    (subject     matter
    jurisdiction); Cavallo v. Star Enter., 
    100 F.3d 1150
    , 1153 (4th
    Cir. 1996) (failure to state a claim).
    Applying    the    doctrine        of    res       judicata        is   proper   where:
    (1) a prior case resulted in a final judgment on the merits;
    (2) there is “an identity of the cause of action in both the
    earlier and the later suit”; and (3) there is “an identity of
    parties    or   their    privies     in       the    two    suits.”           Clodfelter   v.
    Republic of Sudan, 
    720 F.3d 199
    , 210 (4th Cir. 2013) (internal
    quotation marks omitted).            As to the second prong, we apply a
    transactional approach, under which the first case will have a
    preclusive effect if “the second suit arises out of the same
    transaction or series of transactions as the claim resolved by
    the prior judgment.”           
    Id. (internal quotation
    marks omitted).
    Thus, a “newly articulated claim” will be barred by res judicata
    “if it is based on the same underlying transaction and could
    have been brought in the earlier action.”                        
    Id. We conclude
    from the record that the district court did not
    err   in   dismissing     on   the    basis         of     res    judicata      Rodriguez’s
    current claims against defendants that he had previously sued.
    In Rodriguez v. Editor in Chief, Legal Times, 285 F. App’x 756
    (D.C. Circuit 2008), and Rodriguez v. Shulman, 
    844 F. Supp. 2d 1
    (D.D.C. 2012), the Court of Appeals for the District of Columbia
    Circuit and the U.S. District Court for the District of Columbia
    5
    issued final judgments on the merits of Rodriguez’s claims of
    RICO violations and federal and state constitutional violations
    for, among other reasons, claim and issue preclusion, judicial
    immunity, and failure to state a claim.                          These prior cases and
    Rodriguez’s       current      case     arose       out    of     the    same     series      of
    transactions—specifically,              the    alleged          conspiracy      to    prevent
    Rodriguez       from    practicing          law.       Although         Rodriguez       raises
    several new claims in the instant case, these new claims are
    barred    by    res    judicata       because       they    are    based     on      the   same
    conspiracy that Rodriguez alleged in his previous actions, and
    he    could     have    brought       the     claims      in     those     actions.         See
    
    Clodfelter, 720 F.3d at 210
    .
    II.
    Under    the     Rooker-Feldman         doctrine,         lower     federal     courts
    lack     subject       matter        jurisdiction          to     review     state         court
    judgments.        Adkins v. Rumsfeld, 
    464 F.3d 456
    , 463 (4th Cir.
    2006).    Thus, a lower federal court may not review a case where
    the    losing    party       from    state     court       “complain[s]         of   injuries
    caused    by    state-court         judgments       rendered      before     the      district
    court proceedings commenced and invit[es] district court review
    and    rejection       of    those    judgments.”           
    Id. (internal quotation
    marks omitted).             “In other words, the doctrine applies where a
    party in effect seeks to take an appeal of an unfavorable state-
    court decision to a lower federal court.”                         
    Id. at 464
    (internal
    6
    quotation    marks      omitted)     (explaining         that   “the      test     is    not
    whether the relief sought in the federal suit ‘would certainly
    upset’ the enforcement of a state court decree, . . . but rather
    whether the relief would ‘reverse or modify’ the state court
    decree”).
    Because      Rodriguez      seeks     in     this      lawsuit,      among     other
    relief, reinstatement to the bar and the payment of unemployment
    benefits, we conclude that the district court did not err in
    applying    the    Rooker-Feldman         doctrine.          That    is,    in     seeking
    reinstatement as an attorney, Rodriguez challenges the Supreme
    Court of Virginia’s affirmance of his disbarment.                           In seeking
    the payment of unemployment benefits, Rodriguez challenges the
    affirmance by the Court of Appeals of Virginia of the lower
    state court decision that he was disqualified from receiving
    unemployment benefits.            The Rooker-Feldman doctrine bars lower
    federal courts from reviewing such state court decisions.                                See
    
    Adkins, 464 F.3d at 463-64
    .
    III.
    “[J]udicial immunity is an immunity from suit, not just
    from ultimate assessment of damages.”                   Mireles v. Waco, 
    502 U.S. 9
    ,   11,   
    112 S. Ct. 286
    ,    288(1991).           Judicial    immunity       can    be
    overcome    only     where:       (1) the       judge     engaged    in     nonjudicial
    actions—that      is,     “actions   not    taken       in   the    judge’s      judicial
    capacity”; or (2) there was a complete lack of jurisdiction.
    7
    
    Id. at 11-12,
    112 S.Ct. at 288.                        Allegations of bad faith or
    malice will not overcome judicial immunity.                             
    Id. at 11,
    112
    S.Ct. at 288.       Where state supreme court justices hear an appeal
    from a lower court’s disciplinary decision, they are performing
    a    “traditional      adjudicative         task.”       Supreme       Court   of   Va.   v.
    Consumers Union, Inc., 
    446 U.S. 719
    , 734, 
    100 S. Ct. 1967
    , 1976
    (1980), superseded on other grounds by statute, Federal Courts
    Improvement      Act    of    1996,    Pub.       L.   No.    104-317,    § 309(c),       110
    Stat. 3847 (1996).
    We   conclude     from        the     record      that    the     district    court
    correctly determined that the judicial defendants were entitled
    to    judicial    immunity.            The     prior      judicial       decisions    that
    Rodriguez challenges in this case as part of a vast conspiracy
    to deprive him of his rights were issued by the judges acting in
    their judicial capacities.                  See Mireles, 502 U.S. at 
    11, 112 S. Ct. at 288
    ; Consumers Union, 
    Inc., 446 U.S. at 734
    , 100 S.Ct.
    at 1976.      Moreover, any argument that the judges acted with a
    complete lack of jurisdiction is without merit.                            See Mireles,
    502 U.S. at 
    11, 112 S. Ct. at 288
    .
    IV.
    In reviewing the dismissal of a complaint, we assume that
    all    well-pleaded          facts    are     true      and     draw     all   reasonable
    inferences in the plaintiff’s favor.                     
    Cooksey, 721 F.3d at 234
    .
    “[C]ourts may consider relevant facts obtained from the public
    8
    record, so long as these facts are construed in the light most
    favorable      to     the    plaintiff           along     with    the       well-pleaded
    allegations      of    the     complaint.”               Clatterbuck      v.       City    of
    Charlottesville, 
    708 F.3d 549
    , 557 (4th Cir. 2013) (internal
    quotation marks omitted).
    “To survive a Rule 12(b)(6) motion to dismiss, a complaint
    must establish facial plausibility by pleading factual content
    that allows the court to draw the reasonable inference that the
    defendant is liable for the misconduct alleged.”                                 
    Id. at 554
    (internal     quotation      marks    omitted).            To   resist    dismissal,         a
    plaintiff     must     “nudge[]      [his]       claims     across     the       line     from
    conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 
    550 U.S. 544
    , 570, 
    127 S. Ct. 1955
    , 1974 (2007).                       The court need not
    accept   as    true    legal   conclusions          or    “unwarranted           inferences,
    unreasonable        conclusions,     or    arguments.”            Simmons         v.    United
    Mortg. & Loan Inv., LLC, 
    634 F.3d 754
    , 768 (4th Cir. 2011)
    (internal     quotation      marks    omitted).           To    survive      a    motion    to
    dismiss, the complaint must include sufficient facts “to raise a
    reasonable expectation that discovery will reveal evidence of
    the alleged activity.”             US Airline Pilots Ass’n v. Awappa, LLC,
    
    615 F.3d 312
    ,    317   (4th    Cir.   2010)         (internal     quotation         marks
    omitted).
    Under Virginia state law, it is a crime to commit treason,
    which    includes     “[r]esisting        the     execution       of   the       laws    under
    9
    color       of    its     authority.”                 Va.       Code        Ann.    § 18.2-481(5).
    Misprision of treason, which is also a crime, occurs when an
    individual conceals the commission of treason.                                     
    Id. § 18.2-482.
    We have explained, in the context of a federal civil rights suit
    involving a federal criminal statute, that, “[t]he Supreme Court
    historically has been loath to infer a private right of action
    from    a    bare     criminal       statute,           because        criminal          statutes       are
    usually couched in terms that afford protection to the general
    public      instead      of    a    discrete,           well-defined           group.”            Doe    v.
    Broderick,         
    225 F.3d 440
    ,       447-48       (4th       Cir.        2000)        (internal
    quotation marks and citation omitted).
    The federal RICO statute prohibits a person from conducting
    an    “enterprise’s           affairs         through       a    pattern           of    racketeering
    activity or collection of unlawful debt.”                                   18 U.S.C. § 1962(c).
    Similarly, the Virginia RICO statute prohibits a person from
    participating in an “enterprise through racketeering activity.”
    Va.    Code      Ann.    § 18.2-514(c).               As    to     the       federal       statute,       a
    plaintiff        must    allege      at       least     two     racketeering             acts     and    “a
    continuing        pattern      and       a    relationship             among       the     defendant’s
    activities        showing      they          had   the      same       or    similar        purposes.”
    Anderson         v.   Found.       for       Advancement,          Educ.       &        Emp’t    of     Am.
    Indians, 
    155 F.3d 500
    , 505 (4th Cir. 1998).                                        A plaintiff may
    show continuity by showing that the racketeering acts were part
    of the enterprise’s usual way of doing business.                                    
    Id. As to
    the
    10
    pattern requirement, “[i]t is not the number of predicates but
    the    relationship         that   they    bear       to    each     other      or    to   some
    external      organizing       principle        that       renders       them    ordered      or
    arranged.”        H. J. Inc. v. Nw. Bell Tel. Co., 
    492 U.S. 229
    , 238,
    
    109 S. Ct. 2893
    , 2900 (1989).                      A plaintiff may establish the
    relationship requirement “by showing that the criminal acts have
    the same or similar purposes, victims, or methods of commission,
    or are otherwise interrelated by distinguishing characteristics
    and are not isolated events.”              
    Id. at 240,
    109 S.Ct. at 2893.
    The Virginia business conspiracy statute prohibits two or
    more     persons       from     agreeing        and        mutually        undertaking        to
    “willfully and maliciously injur[e] another in his reputation,
    trade, business or profession by any means whatever.”                                Va. Code
    Ann. § 18.2-499(A).
    We    conclude       from     the   record          that    the     district        court
    correctly found that Rodriguez failed to state claims upon which
    relief      may   be    granted      as    to     his      claims     of    treason,       RICO
    violations, and business conspiracy.                        First, because Rodriguez
    has presented no argument as to why the court should infer a
    private     right      of   action    from      the     treason      and    misprision       of
    treason      criminal         statutes,      the        district         court       correctly
    determined that it was not plausible that the defendants would
    be liable for treason or misprision of treason in this action.
    See 
    Clatterbuck, 708 F.3d at 554
    ; 
    Doe, 225 F.3d at 447-48
    .
    11
    Next,    as     to    Rodriguez’s            RICO     and     business       conspiracy
    claims, his complaint does not establish plausibility.                                 Rather,
    his complaint indicates that the events in question began with
    two separate and unrelated complaints to the state bar, which
    ultimately led to Rodriguez’s disbarment in Virginia and other
    courts, his loss of unemployment benefits, and several lawsuits.
    Rodriguez’s      assertion         that     the     bar     complaints       arose     from   a
    conspiracy      between       his    former         client    and     the    U.S.     Attorney
    General is an “unreasonable conclusion[],” which we need not
    accept.    See 
    Simmons, 634 F.3d at 768
    .                           As to the events that
    followed the initial bar complaints, it is not plausible that
    the individuals and courts who worked on these cases comprised
    an enterprise or conspiracy that sought to victimize Rodriguez
    and injure his profession.                     See Va. Code Ann. § 18.2-499(A);
    
    Clatterbuck, 708 F.3d at 554
    .       Nor    has     Rodriguez       presented
    “factual content” to support a finding that such an enterprise
    or    conspiracy      existed.           See      
    Clatterbuck, 708 F.3d at 554
    .
    Rather, the reasonable inference to draw from these facts and
    from the decisions in Rodriguez’s prior cases—which we consider
    as part of the public record—is that the individuals and courts
    who    worked    on     Rodriguez’s         cases      considered        his       claims    and
    determined      that     they       were    without         merit     for    a     variety    of
    reasons, including failure to state a claim, judicial immunity,
    and   claim     and    issue       preclusion.         See     
    id. at 557;
       Editor    in
    12
    Chief, Legal Times, 285 F. App’x at 759-60; Shulman, 844 F.
    Supp. 2d at 7-12.
    For      all   of    the   above     reasons,      we    affirm       the   district
    court’s dismissal of Rodriguez’s complaint.
    V.
    We review jurisdictional questions de novo and the issuance
    of a pre-filing injunction for an abuse of discretion.                              Balas v.
    Huntington Ingalls Indus., Inc., 
    711 F.3d 401
    , 406 (4th Cir.
    2013) (jurisdiction); Cromer v. Kraft Foods N. Am., Inc., 
    390 F.3d 812
    , 817 (4th Cir. 2004) (pre-filing injunction).
    We have upheld the imposition of Rule 11 sanctions imposed
    after      the    district      court   issued      its    final     judgment       and   the
    appellant filed a notice of appeal.                   Langham-Hill Petroleum Inc.
    v.    S.      Fuels    Co.,    
    813 F.2d 1327
    ,       1330-31    (4th      Cir.    1987)
    (upholding the imposition of attorney’s fees awarded under Rule
    11    despite      the      appellant’s    argument       that    the     district     court
    lacked jurisdiction to impose sanctions after it filed a notice
    of appeal).
    It is the appellant’s duty to order transcripts relevant to
    any   findings         or   conclusions      that   he     intends       to   challenge    on
    appeal.          Fed.R.App.P.        10(b)(2);      4th    Cir.     R.    10(c)(1).        An
    appellant waives an issue if he fails to comply with Federal
    Rule of Appellate Procedure 10(b)(2) and provide us with the
    13
    relevant transcripts.           Keller v. Prince George’s Cnty., 
    827 F.2d 952
    , 954 n.1 (4th Cir. 1987).
    “[F]ederal courts [have] the authority to limit access to
    the courts by vexatious and repetitive litigants.”                   
    Cromer, 390 F.3d at 817
    .          “Such a drastic remedy must be used sparingly,”
    but may be appropriate in cases where a litigant abuses “the
    judicial process by filing meritless and repetitive actions.”
    
    Id. at 817-18
    (quoting Brow v. Farrelly, 
    994 F.2d 1027
    , 1038 (3d
    Cir. 1993)).
    Rodriguez’s      argument       that   the    district      court     lacked
    jurisdiction to impose sanctions after he filed his notice of
    appeal is without merit.            See Langham-Hill Petroleum 
    Inc., 813 F.2d at 1330-31
    .
    Furthermore, the district court has the ability to limit
    access   to    the    courts,    and   Rodriguez    has   waived   any     argument
    regarding the merits of the pre-filing injunction because he
    failed to provide the Court with the transcript of the sanctions
    hearing.      See 
    Cromer, 390 F.3d at 817
    ; 
    Keller, 827 F.2d at 954
    n.1.     For    the    above-stated     reasons,    we    affirm   the     district
    14
    court’s   judgment   of   dismissal   and   the   district   court’s
    imposition of sanctions. 3
    AFFIRMED
    3
    We DENY as moot Rodriguez’s motion to disqualify and
    recuse the judges of the Fourth Circuit and Chief Justice John
    G. Roberts.    We also DENY Rodriguez’s motion to strike the
    federal defendants’ response brief, and DENY Rodriguez’s motion
    for an injunction.
    15