Dorsett v. Hug ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10538
Summary Calendar
MICHAEL L. DORSETT,
Plaintiff-Appellant,
versus
G. A. HUG, Etc.; ET AL.,
Defendants,
GERALD CARRUTH, Assistant U.S. Attorney,
Western District of Texas, in his individual capacity,
Defendant-Appellee.
- - - - - - - - - - - - -
consolidated with
No. 03-10786
Summary Calendar
MICHAEL L. DORSETT,
Plaintiff-Appellant,
versus
G. A. HUG, Etc.; ET AL.,
Defendants,
F. COFFEY, in his individual capacity; J. KEATHLEY, in his
individual capacity; M. PACE, in his individual capacity;
F. MILLS, in his individual capacity; W. WILHOIT, in his
individual capacity; VICKY MARWOOD, in her individual capacity;
TODD MCCALL, in his individual capacity; PAT KIERHAN, in his
individual capacity; MONICA SEGEDY, in her individual capacity;
GREG HARBOURT, in his individual capacity; LAURIE GIBBS, in her
individual capacity; LISA REDWINE, in her individual capacity;
ANTHONY WEAVER, in his individual capacity; JIM MONTEE, in his
individual capacity; ROBERT ZANE, in his individual capacity;
ALBERT SANCHEZ, in his individual capacity; JOHN P. BRADFORD, in
his individual capacity;
Defendants-Appellees.
- - - - - - - - - - - - -
consolidated with
No. 03-10912
Summary Calendar
MICHAEL L. DORSETT,
Plaintiff-Appellant,
versus
G. A. HUG, Etc.; ET AL.,
Defendants,
G. A. HUG, in his individual capacity; F. D. CHAMBERS, in his
individual capacity,
Defendants-Appellees.
--------------------
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CV-259-A
--------------------
Before HIGGINBOTHAM, DAVIS, AND PRADO, 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that this opinion should not be published and is not precedent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.
-2-
Appellant Michael Dorsett filed suit under 42 U.S.C. § 1983
against G. A. Hug, F. D. Chambers, and numerous other defendants
alleging violations of his constitutional rights. He also raised
claims under the Racketeer Influenced and Corrupt Organizations
(RICO) Act1 and the Wire and Electronic Communications Interception
and Interception of Oral Communications (Wiretap) Act.2 The
district court dismissed his claims, and Dorsett appeals. He also
argues that the district abused its discretion in denying his
recusal motions. We have consolidated the appeals,3 and we now
AFFIRM.
This suit centers around the events preceding Dorsett’s 1998
conviction. He pled guilty to one count of carrying a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)
and (2), and was sentenced to a term of sixty months followed by a
three year term of supervised release. Dorsett alleged in his
complaint that Hug, Chambers, and the other defendants engaged in
an illicit undercover investigation.
Dorsett sued Appellee Gerald Carruth, an Assistant United
States Attorney for the Western District of Texas, in his
individual capacity. The district court determined that defendant
Carruth was entitled to dismissal on several grounds. In
particular, the court concluded that “Carruth is entitled to the
1
18 U.S.C. § 1962.
2
18 U.S.C. § 2511.
3
See FED. R. APP. P. 3(b).
-3-
defense of qualified immunity.” Although Dorsett challenges some
of the district court’s grounds for dismissal, he failed to brief
the issue of qualified immunity. Pro se briefs are afforded
liberal construction,4 but even pro se litigants must brief
arguments in order to preserve them.5 Arguments not adequately
argued in the body of the brief are deemed abandoned on appeal.6
Because the district court’s unchallenged dismissal on grounds of
qualified immunity is sufficient to dispose of all the claims
asserted against Carruth, it is unnecessary to discuss Dorsett’s
other arguments.7
The district court determined that Dorsett’s only claim
against Appellees Lt. L. Coffey, Capt. J. Keathley, Maj. M. Pace,
Col. F. Mills, and Col. W. Wilhoit (the Missouri Five)
and Appellees John P. Bradford, Albert Sanchez, Vicki Marwood, Todd
McCall, Pat Kierhan, Monica Segedy, Greg Harbourt, Laurie Gibbs,
Lisa Redwine, Anthony Weaver, Jim Montee, and Robert Zane (the
Federal Twelve) arose under the RICO Act, and granted the
defendants’ motions to dismiss. Dorsett argues that his verified
complaint states a RICO claim against these defendants. We agree
with the defendants and the district court that the complaint fails
4
See Haines v. Kerner, 404 U.S. 519, 521 (1972).
5
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
6
Id. at 225.
7
See American Eagle Airlines, Inc. v. Air Line Pilots
Ass’n, Int’l, 343 F.3d 401, 411 n.6 (5th Cir. 2003).
-4-
to satisfy the RICO continuity requirement: there is no allegation
that the defendants have regularly operated in an allegedly illegal
manner or that there is a threat that they will so operate in the
future.8
Dorsett’s final argument is that the district court erred in
granting summary judgment to defendants G.A. Hug and F.D. Chambers
on his RICO and Wiretap Act claims. We review the district court’s
grant of summary judgment de novo and evaluate the facts in the
light most favorable to the nonmoving party.9 “We may affirm a
summary judgment on any ground supported by the record, even if it
is different from that relied on by the district court.”10 With
regard to Dorsett’s RICO Act claim, the summary judgment record,
including Dorsett’s verified complaint and the additional evidence
adduced by Dorsett in opposition to the defendants’ motion,
provides no proof that the RICO Act’s continuity requirement is
satisfied.11 The district court dismissed Dorsett’s Wiretap Act
claims because they were barred by the statute of limitations.
Dorsett fails to present any argument in his opening brief
8
See Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d
1134, 1139-40 (5th Cir. 1992) (holding that, to state a claim
under RICO, alleged acts must pose a threat of continued criminal
activity).
9
Whittaker v. BellSouth Telecomm., Inc., 206 F.3d 532, 534
th
(5 Cir. 2000).
10
Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258
(5th Cir. 2001).
11
See Tel-Phonic Servs., 975 F.2d at 1139-40.
-5-
concerning the statute of limitations. He has thus waived the
issue and cannot show that the district court erred in dismissing
these claims.12
Dorsett also argues that the district court should have
recused itself pursuant to 28 U.S.C. § 455(a). He contends that
the district court’s unexplained rulings on various motions call
the district court’s impartiality into doubt. An appellant’s
references to the district court’s adverse rulings are insufficient
to support his claim of judicial bias.13 Dorsett has failed to show
that the district court abused its discretion by denying his
recusal motions.
CASES CONSOLIDATED; AFFIRMED.
12
See Morin v. Moore, 309 F.3d 316, 328 (5th Cir.2002);
Yohey, 985 F.2d at 224-25.
13
See United States v. Mizell, 88 F.3d 288, 299-300 (5th
Cir. 1996).
-6-