Hagan v. Coggins ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11272
Summary Calendar
JOHN HAGAN,
Plaintiff-Appellant,
versus
PAUL COGGINS, an individual; JOHN DOE, and Other Unknown
Named Agents of the Department of Justice, Northern District of
Texas; DEPARTMENT OF JUSTICE, Northern District of Texas; GERALD
BUCKMEYER, an Individual; SCOTT SCHER, an Individual; RICHARD
FOGEL, an Individual,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CV-878-E
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June 29, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
John Hagan appeals the dismissal of his claims pursuant to
the Racketeering Influenced and Corrupt Organizations Act, 18
U.S.C. §§ 1961-1968, and Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971). The district court dismissed sua sponte his
claims against defendants Scott Scher and Richard Fogel for
failure to state a claim on which relief could be granted, and
granted summary judgment in favor of defendants Gerald Buchmeyer
and Paul Coggins. Hagan argues that the district court’s failure
*
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this opinion should not be published and is not precedent except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. 00-11272
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to grant him discovery prior to its dismissal of his Bivens
claims represents a substantial departure from the Supreme
Court’s decision in Crawford-El v. Britton, 523 U.S. 574 (1998),
since the severity of the abuse of office alleged in that case
“pales by comparison to the abuse alleged by Hagan.” The
district court in this case followed the procedure outlined in
Crawford-El by directing Hagan to amend his complaint prior to
its dismissal of his Bivens claims. It therefore provided Hagan
with the opportunity to show a need for discovery. He failed to
do so. This argument is without merit.
Hagan argues that Buchmeyer was not entitled to immunity
because Buchmeyer had knowledge of disputed evidentiary facts.
Hagan contends that Buchmeyer was in possession of an FBI report
which substantiated his claims against Coggins in an earlier
lawsuit against Coggins. Hagan’s pleadings provided no factual
basis for the existence of the aforementioned FBI report.
Hagan’s assertions on appeal provide no factual or legal support
for this claim. Moreover, Hagan’s claims against Buchmeyer were
dismissed on summary judgment, without a ruling on the immunity
issue. This argument is without merit.
Hagan argues that because Coggins is a supervisory official,
he may be held liable in a Bivens action if the plaintiff can
show personal involvement in the acts causing the deprivation of
constitutional rights. Hagan asserts that he satisfied this
requirement in his first amendment to his original complaint.
The district court disagreed, and Hagan has presented no factual
support for Coggins’s alleged personal involvement. Nor has he
No. 00-11272
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submitted legal argument challenging the reasoning behind the
district court’s findings. This argument is frivolous.
Hagan asserts that he pleaded personal actions taken by
Scher and Fogel in furtherance of a conspiracy to deprive him of
his constitutional right to pursue legal action against the law
firm of Kasmir & Krage, against Coggins, and against Dave Stieber
and Drew Campbell. He then asserts that Scher’s failure to
produce an affidavit pursuant to 28 U.S.C. § 2014(a), even after
subpoena, is indicative that such a conflict existed. Insofar as
he is attempting to challenge the dismissal of Scher and Fogel,
Hagan has failed to adequately brief the issue. It is therefore
waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
Hagan attempts to challenge the dismissal of his civil RICO
claims with the same sort of conclusory allegations prevalent in
his district court pleadings. This argument contains no citation
to legal authority other than for an irrelevant general
proposition. The district court found that Hagan had not alleged
facts from which the existence of a continuing RICO enterprise
could be inferred, and because the association-in-fact enterprise
pleaded by Hagan lacked continuity, Hagan could prove no set of
facts in support of a civil RICO claim against the defendants.
See Crowe v. Henry, 43 F.3d 198, 204 (5th Cir. 1995). Hagan does
not point to facts sufficient to support his RICO claim. Nor
does he make any legal argument challenging the district court’s
reasons for dismissing his RICO claims. To the extent that this
can be construed as an argument, he has failed to brief it
No. 00-11272
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adequately. It is therefore waived. See Yohey, 985 F.2d at 224-
25.
Hagan has failed to show that the district court erred in
dismissing his claims against Scher and Fogel or in granting
summary judgment in favor of Buchmeyer and Coggins.
AFFIRMED.