Raz v. US Marshal Service ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30054
Summary Calendar
YORAM RAZ,
Plaintiff-Appellant,
versus
J.R. OAKES; TED BARBE; JULIA E. BLEWER;
COOK, YANCEY, KING & GALLOWAY; U.S. MARSHAL SERVICE;
KARLA COOPER; MICHAEL J. MORIARTY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-399
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September 5, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Yoram Raz, a frequent filer of pro se federal litigation in
the Western District of Louisiana, appeals the district court’s
dismissal of an action brought against the U.S. Marshal Service
(USMS), individual deputy marshals, and a private lawyer and her
firm who were representing Raz’s opponent in another federal
civil rights case (the Storey action). The lawsuit consists of
*
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that this opinion should not be published and is not precedent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. 02-30054
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claims under the Privacy Act, 5 U.S.C. § 551a, and Bivens v. Six
Unknown Named Fed. Agents, 403 U.S. 388 (1971). Raz also
asserted that the USMS concealed documents Raz had requested
through the Freedom of Information Act (FOIA).
Raz’s claims are related to what he contends is a long-
lasting and pervasive conspiracy involving the FBI, these
defendants, and many others, to spy on, harass, and persecute him
for no apparent reason. The claims more directly arise from the
defendants’ actions after Raz made an unannounced appearance in
the chambers of the late Chief Judge Henry Politz and attempted
to partially disrobe in order to show the court’s staff injuries
allegedly inflicted by the Storey defendants. The district court
dismissed all of Raz’s claims on the defendants’ motions to
dismiss under FED. R. CIV. P. 12(b)(6) or for summary judgment
under FED. R. CIV. P. 56.
Raz contends that he was denied due process because the
district court failed to afford him an opportunity to file
objections after the entry of the memorandum ruling and before
the entry of final judgment. Raz refers to the requirements of
28 U.S.C. § 636(b)(1)(C) that apply when a magistrate judge
issues a report and recommendation. Those requirements are
inapplicable in this case because the district judge ruled
directly on the motions for summary judgment after giving Raz
ample opportunity to oppose the motions, which Raz did.
No. 02-30054
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Raz contends that the district court’s ruling is invalid
because it was based on the original complaint rather than the
amended complaint. However, the district court stated that it
did examine Raz’s amended complaint in reaching its decision,
even though the amended complaint was not substantially different
from the original. If there was any error, it was harmless.
Raz complained that the USMS violated the Privacy Act, 5
U.S.C. § 552a(b), by disclosing to the FBI and to a private-
lawyer defendant records of the investigation of the incident in
the judge’s chambers. Raz has briefed only whether the
disclosure to the private defendant was “intentional and willful”
so as to establish liability under the Privacy Act. See 5 U.S.C.
§ 552a(g)(4); Johnson v. Department of Treasury, I.R.S., 700 F.2d
971, 982 (5th Cir. 1983). Raz presented no summary-judgment
evidence to contest a USMS affidavit stating that the disclosure
was merely negligent and not willful or intentional. Moreover,
Raz did not adduce any summary-judgment evidence indicating that
he suffered any “actual damages” as a result of the disclosure.
See Johnson, 700 F.2d at 972.
Raz argues on appeal that the USMS violated the FOIA by
concealing his USMS investigation file. The record shows that
Raz eventually received the file, albeit through another
defendant. Once Raz obtained the record, his FOIA claim for its
production became moot. See Lovell v. Alderete, 630 F.2d 428,
430-31 (5th Cir. 1980). Raz’s challenge to the timeliness of the
No. 02-30054
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disclosure likewise was mooted by the production of the records.
See Voinche v. F.B.I., 999 F.2d 962, 963 (5th Cir. 1993).
The district court correctly held that Raz’s Fourth and
Fifth Amendment claims arising from the search following his
visit to the judge’s chambers were time-barred under the one-year
limitation period applicable to Bivens actions in Louisiana. See
Alford v. United States, 693 F.2d 498, 499 (5th Cir. 1982). If
it is assumed that Raz raised a contested issue of fact as to the
timing of his knowledge of the copying of certain items seized in
the search, he has nonetheless failed to articulate any
cognizable theory of recovery or constitutional violation,
particularly in light of his failed Privacy Act claim.
Raz contends that the district judge should have been
recused on grounds of bias. His arguments are based on adverse
rulings which, without more, alone do not call into question the
district judge’s impartiality. See Liteky v. United States, 510
U.S. 540, 550-51 (1994); United States v. Landerman, 109 F.3d
1053, 1066 (5th Cir. 1997); United States v. Mizell, 88 F.3d 288,
300 (5th Cir. 1996). We decline to consider other recusal
arguments raised for the first time on appeal. See Stewart Glass
& Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d
307, 316-17 (5th Cir. 2000). We also decline to consider
arguments that Raz attempts to adopt by reference to pleadings
filed in the district court. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
No. 02-30054
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Raz asserted various claims of impeded access to the
courthouse based on broad allegations of harassment, insults,
threats, humiliation, intimidation, and excessive security checks
by mostly unnamed court security personnel. He complained that
these acts prevented him from concentrating in the court library,
degraded his status in the eyes of court personnel, and will
prejudice him before a jury if he ever goes to trial. Raz does
not assert that any specific named defendant committed any
particular act. Rather, he alleges “elaborate schemes of covert
surveillance and sting-operations.” Raz’s only specific
allegation is that two U.S. Marshals responded “harshly” to his
complaints about court security surveillance.
Raz’s claims fail because he has not alleged acts that
amount to a constitutional violation, and because he has not
carried his summary-judgment evidentiary burden of showing a
contested issue of material fact. The federal defendants filed
affidavits attesting that they have not prevented Raz from
entering or using the court house. In response, Raz relied on
his pleadings and offered only unsupported conclusions of
wrongdoing without showing that any defendant prevented him from
entering or moving about the court house or from filing or
pursuing any legal remedy. His unsupported conclusions and mere
speculation do not forestall summary judgment. Michaels v.
Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 1999).
No. 02-30054
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In addition, the federal defendants were protected from suit
under the qualified-immunity doctrine because their actions were
objectively reasonable in light of their duty to protect court
personnel and property and the information possessed by the
officers concerning the incident in the judge’s chambers. See
Anderson v. Creighton, 483 U.S. 635, 641 (1987).
Raz did not brief issues pertaining to the district court’s
dismissal of the invasion-of-privacy claims brought against all
federal and private defendants under Bivens and the Privacy Act.
In addition, he made only passing references in his appeal brief
to the general conspiracy claim against the private lawyer
defendants. Raz waived appeal of all of these issues by failing
to brief them. See Yohey, 985 F.2d at 225. Further, Raz’s
passing references to the private defendants in his brief are
mere conclusions and speculation about the broad and pervasive
conspiracy Raz believes is targeting him and which may aptly be
characterized as fanciful, fantastic, and delusional. See
Michaels, 202 F.3d at 754-55 (conclusions and speculation
insufficient to defeat summary judgment).
The judgment of the district court is AFFIRMED.
Raz has moved for the recusal of the district judge from all
future litigation involving Raz. He has also moved for a change
of venue and for an award of the costs of this appeal. These and
any other outstanding motions are DENIED.
JUDGMENT AFFIRMED; MOTIONS DENIED