Workman v. Calogero , 174 F. App'x 824 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 5, 2006
Charles R. Fulbruge III
Clerk
No. 04-31050
Summary Calendar
JAMES A. WORKMAN,
Plaintiff-Appellant,
versus
PASCAL F. CALOGERO, JR., in his personal capacity; JEFFREY P.
VICTORY, in his personal capacity; JEANNETTE THERIOT KNOLL, in
her personal capacity; CHET D. TRAYLOR, in his personal capacity;
CATHERINE D. KIMBALL, in her personal capacity; BERNETTE J.
JOHNSON, in her personal capacity; JOHN L. WEIMER, in his
personal capacity; CHARLES B. PLATTSMIER, in his personal
capacity; JOSEPH L. SHEA, JR., in his personal capacity; DONALD
R. BROWN, in his personal capacity; E.J. CHAMPAGNE, in his
personal capacity; LONNIE GRECO, in his personal capacity;
ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, erroneously
identified in the complaint as “the Tulane University of
Louisiana,”
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:02-CV-922-B
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Before HIGGINBOTHAM, BENAVIDES and OWEN, Circuit Judges.
PER CURIAM:*
James A. Workman has appealed the dismissal of his civil
RICO and civil rights claims against “the Tulane University 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this opinion should not be published and is not precedent except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.
Louisiana”1 and various individuals, including: member justices
of the Louisiana Supreme Court; members of the Louisiana Attorney
Disciplinary Board; Disciplinary Counsel Charles Plattsmier;
Tulane Law School professors and administrators Edward F.
Sherman, Lawrence Ponoroff, and Wendy Brown-Scott; K. Dupaquier,
the Director of Public Safety at Tulane University; and two John
Does.
The standards in ruling upon motions to dismiss for failure
to state a claim, under FED. R. CIV. P. 12(b)(6), and for judgment
on the pleadings, under FED. R. CIV. P. 12(c), are the same.
Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 450 n.2
(5th Cir. 2005). The complaint may not be dismissed unless it
appears certain that the plaintiff cannot prove any set of facts
in support of his claim that would entitle him to relief. Id.
Although the plaintiff’s allegations are taken as true and are
considered in the light most favorable to the plaintiff,
conclusional allegations and legal conclusions masquerading as
facts will not prevent dismissal or judgment on the pleadings.
Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002). This court’s standard of review is de novo. Bennett-
Nelson, 431 F.3d at 450 n.2.
1
The correct name of this entity is “Administrators of the
Tulane Educational Fund” [hereinafter “Tulane University”].
2
Workman argues on appeal that the actions of the
Disciplinary Board Members were purely ministerial and not
judicial in nature. He argues also that the Disciplinary Board
Members, as members of the administrative committee, exceeded
their authority in ruling on his petition for review. The
actions of the Disciplinary Board Members were judicial in nature
because the decision whether to disqualify counsel is a judicial
function. See Rolleston v. Eldridge, 848 F.2d 163, 164 (11th
Cir. 1988); see also Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir.
1994). Because the administrative committee is not precluded
from deciding requests for disqualification of disciplinary
counsel and because that decision does not fall within the scope
of the appellate review function, Workman cannot show that the
Disciplinary Board Members exceeded the scope of their
jurisdiction. See LA. SUP. CT. RULE XIX, § 2(G)(1)(b).
Workman contends that defendant disciplinary counsel
Plattsmier was not entitled to absolute prosecutorial immunity
because he was not functioning as a prosecutor when he conducted
pre-investigation screening of Workman’s complaint. The
screening procedures clearly fell within the prosecutorial duties
and functions of the disciplinary counsel. See SUP. CT. RULE XIX,
§ 4(B)(1), (2), & (3). This court has held that decisions by a
prosecutor to file or not file charges are acts protected by
absolute immunity. Oliver v. Collins, 904 F.2d 278, 281 (5th
Cir. 1990).
3
Workman contends that the district court erred in granting
Tulane University’s motion for judgment on the pleadings.
Workman argues, without elaboration, that the district court
erred in stating that his allegations of criminal conduct on the
part of Tulane law professors Sherman and Ponoroff were
conclusional. Workman’s conclusional argument does not
demonstrate that the district court erred. Workman contends also
that the district court erred in determining that Tulane
University could not be held vicariously liable for its own
participation in the alleged conspiracy. Workman’s argument is
conclusional and internally inconsistent. Either liability is
vicarious or it is not.
Workman has not shown that the district court abused its
discretion in refusing to permit him to amend his complaint. See
Duff-Smith v. Collins, 973 F.2d 1175, 1180 (5th Cir. 1992).
AFFIRMED.
4