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Foster v. Capshaw ( 2003 )


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  •                                                         United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                 August 20, 2003
Charles R. Fulbruge III
Clerk
No. 02-41605
Summary Calendar
CAROLYN FOSTER; MURRELL FOSTER,
Plaintiffs-Appellants,
versus
DONALD W. CAPSHAW, Individually; ET AL.,
Defendants,
DONALD W. CAPSHAW, Individually; BILL PEEK, Individually;
BILLY DALE MOYE, Individually; RAYMOND W. JORDAN, Individually;
VALERIE FARWELL, Individually; BILLY FOX BRANSON, Individually;
LANNY RAMSEY, Individually; WILLIAM J. CORNELIUS, Individually;
CAROLINE CRAVEN; Individually; MARGARET J. REEVES, Individually;
STATE BAR OF TEXAS,
Defendants-Appellees
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-148
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
The Fosters appeal the dismissal of their Federal Racketeer
Influenced and Corrupt Organizations Act (RICO) complaint for
failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6).      They
first contend that disqualification of the district judge was
*
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this opinion should not be published and is not precedent except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.
mandated because he was a member of the State Bar of Texas, a
defendant.             A district judge, however, does not have a substantial
interest            in        the   success   of   a    suit   simply     because   of   his
identification with a defendant bar association.                           See Parrish v.
Bd. of Comm’rs of Alabama State Bar,
    524 F.2d 98
    , 104 (5th Cir.
1975).            The refusal to recuse was therefore not an abuse of
discretion.               See Trevino v. Johnson,
    168 F.3d 173
    , 178 (5th Cir.
1999).
Furthermore, the district court’s Rule 12(b)(6) dismissal was
not erroneous.                  To state a RICO claim, a plaintiff must allege,
inter alia, a “pattern of racketeering activity,” demonstrating
that at least two predicate acts of racketeering are related and
pose a threat of continued criminal activity.                           Tel-Phonic Servs.,
Inc. v. TBS Int’l, Inc.,
    975 F.2d 1134
    , 1139-40 (5th Cir. 1992).
The Fosters complaint alleges only a closed-ended scheme to deprive
them of their property rights.                         RICO, however, is not concerned
with short-term criminal conduct.
    Id. at 1140
    .     “Predicate acts
extending over a few weeks or months and threatening no future
criminal conduct do not satisfy [the continuity] requirement.”
    Id.
    (internal quotations omitted) (quoting H.J., Inc. v. Northwestern
Bell Tel. Co.,
    492 U.S. 229
    , 241 (1989)).
AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.
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