Leslie M. Smith v. Dean K. Wampler , 95 F. App'x 194 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3063
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Leslie M. Smith, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Dean K. Wampler, M.D.; Wausau *
Insurance Company, also known as * [UNPUBLISHED]
Employers Insurance of Wausau, A *
Mutual Company, *
*
Appellees. *
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Submitted: April 12, 2004
Filed: April 19, 2004
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Before LOKEN, Chief Judge, RICHARD S. ARNOLD and FAGG, Circuit Judges.
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PER CURIAM.
After Leslie M. Smith injured his back at work, Dr. Dean Wampler treated him.
The Nebraska Workers’ Compensation Court held that although Smith injured his
back at work, his temporary total disability was caused by preexisting degenerative
disc disease rather than by the work injury. While Smith’s appeal was pending, he
entered into a worker’s compensation settlement agreement with his employer and its
worker’s compensation carrier, Wausau Insurance Company (Wausau). Smith later
brought this civil action against Wampler and Wausau alleging civil violations of the
Racketeer Influenced and Corrupt Organizations Act (RICO), fraud, and bad faith.
The district court* granted summary judgment to Wampler and Wausau, concluding
Smith did not allege any racketeering activity against Wampler, and Smith waived
any claims against Wausau in the settlement agreement. The district court declined
to exercise supplemental jurisdiction over state law claims.
On appeal, Smith contends the district court committed error in granting
summary judgment because Wampler failed to show the absence of a disputed fact
on the RICO claims. Wampler was not required to do so, however, because the
record contains no facts on which Smith could prevail. To state a civil RICO claim
under 18 U.S.C. § 1962(c), Smith must prove the defendants engaged in conduct of
an enterprise through a pattern of racketeering activity. ASA- Brandt, Inc. v. ADM
Inv. Servs., Inc., 344 F.3d 738, 752 (8th Cir. 2003); Handeen v. Lemaire, 112 F.3d
1339, 1347 (8th Cir. 1997). Racketeering activity is defined in § 1961(1) as any act
or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion,
dealing in obscene matter, or dealing in a controlled substance or listed chemical, acts
indictable under certain federal laws, and numerous other offenses. See 18 U.S.C. §
1961(1); Handeen, 112 F.3d at 1353. Having carefully reviewed Smith’s complaint,
we agree with the district court that Smith fails to allege any racketeering activity
within the definition of § 1961(1). Contrary to Smith’s contention, there was not
sufficient evidence in his resistance to the summary judgment motion to show the
predicate acts of mail and wire fraud. At most, Smith alleges common law fraud and
claims of professional malpractice or personal injury, which are not actionable under
RICO. See Guerrero v. Gates, 357 F.3d 911, 920 (9th Cir. 2004); Doe v. Roe, 958
F.2d 763, 767 (7th Cir. 1992); Handeen, 112 F.3d at 1348. Because Smith failed to
allege any racketeering activity, the district court properly granted summary judgment
*
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
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on Smith’s RICO claims. Thus, we need not decide whether the RICO claims are
barred by the settlement agreement.
We affirm the district court.
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