Gross v. Harris County Clerk

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20475
Summary Calendar
KEITH GROSS
Plaintiff - Appellant
v.
HARRIS COUNTY CLERK; STATE OF TEXAS; MONICA PECKHAM
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-4250
--------------------
February 19, 2002
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
Keith Gross appeals from a final judgment in his suit
against the State of Texas and the Harris County Clerk. Gross
was injured in a motorcycle accident and incurred medical costs
at a hospital. When Gross sued the alleged tortfeasors in state
court, the hospital, represented by attorney Monica Peckham,
obtained a lien on Gross’ cause of action pursuant to the Texas
Hospital Lien Statute, TEX. PROP. CODE §§ 55.001-008. Gross filed
an action in the court below seeking damages and a declaration
that the statute was unconstitutional. Gross later sought leave
*
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that this opinion should not be published and is not precedent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. 01-20475
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to amend his complaint to add Peckham as a defendant, claiming
that Peckham was liable to him for damages under 42 U.S.C. § 1983should she foreclose on the lien. The district court ruled that
Peckham could not be a “state actor,” denied leave to amend the
complaint, and imposed sanctions on Gross. The court dismissed
Gross’ action, holding that Gross lacked standing to pursue his
claim and that his claim was not ripe.
Gross has not briefed any issue relating to the district
court’s dismissal of his claims against the Harris County Clerk.
This court "will not raise and discuss legal issues that [Gross]
has failed to assert." Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Any arguments that
Gross may have had regarding the dismissal of his claims against
the Harris County Clerk are deemed waived. See Carmon v.
Lubrizol Corp., 17 F.3d 791, 794 & n.6 (5th Cir. 1994).
We agree with the district court’s determination on summary
judgment that Gross lacked standing to pursue his declaratory
action regarding the constitutionality of the Texas Hospital Lien
Statute. To have standing, a plaintiff must show that he has
suffered an injury in fact. Southern Christian Leadership
Conference v. Supreme Court of the State of Louisiana, 252 F.3d
781, 788 (5th Cir.), cert. denied, 122 S. Ct. 464 (2001). “An
‘injury in fact’ is an invasion of a legally protected interest
which is both (a) concrete and particularized, and (b) actual or
imminent and not conjectural or hypothetical.” Id. Second, the
plaintiff must establish causation - a fairly traceable
connection between the plaintiff's injury and the complained-of
No. 01-20475
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conduct of the defendant. Id. Last, there must be
redressability – a likelihood that the requested relief will
redress the alleged injury. Id. Each of the above elements must
be supported in the same way as any other matter of proof with
the manner and degree of evidence required at successive stages
of litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992).
Gross has failed to show that he has suffered an injury in
fact. Accordingly, we AFFIRM the dismissal of his action for a
declaratory judgment. Because we affirm the district court’s
dismissal for lack of standing, we do not reach the issue of
ripeness.
In connection with this issue, Gross has submitted a motion
to supplement the record, attaching a copy of a judgment in his
favor in the underlying state court case dated December 19, 2001.
He requests that we rule on his declaratory action or remand the
case for further proceedings on the issue. The motion is in all
respects DENIED.1
Although the district court did not address the issue of
standing as to Gross’ claim against Peckham, this court may
consider the issue on appeal because standing is a jurisdictional
requirement which is open to review at all stages of the
1
“A court of appeals will not ordinarily enlarge the
record on appeal to include material not before the district
court.” Kemlon Products & Development Co. v. United States, 646
F.2d 223, 224 (5th Cir. 1981). Furthermore, the state court
judgment has no bearing on our disposition of the instant matter,
as it fails to establish that Gross had standing at the
commencement of the litigation in 1998. See United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980); Pederson v.
Louisiana State University, 213 F.3d 858, 869 (5th Cir. 2000).
No. 01-20475
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litigation. See In re Taxable Municipal Bond Securities
Litigation, 51 F.3d 518, 521 (5th Cir. 1995). Gross’ allegations
reveal the speculative nature of his anticipated claim against
Peckham, and nothing in the record suggests that he has suffered
an injury in fact as a result of Peckham’s actions. As amendment
of Gross’ complaint would have been futile given the
insurmountable problem with standing, we hold that the district
court did not err in denying leave to amend the complaint to add
Peckham as a defendant.
The Harris County Clerk and Peckham have requested sanctions
against Gross for pursuing a frivolous appeal. We deny the
request of the former because it was not made by separate motion,
as required under FED. R. APP. P. 38.
Peckham contends that Gross’ appeal is frivolous because
Gross should have been aware that attorneys cannot be held liable
to opposing parties for acts taken in representing clients. “An
appeal is frivolous if the result is obvious or the arguments of
error are wholly without merit.” Coghlan v. Starkey, 852 F.2d
806, 811 (5th Cir. 1988). Peckham has failed to show that
attorneys cannot be state actors under 42 U.S.C. § 1983 based on
acts taken in the scope of representation. See Jordan v. Fox,
Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1267 (3d Cir. 1994).
Accordingly, Peckham’s motion for sanctions is DENIED. We note
that our ruling as to Peckham’s motion in no way affects the
sanctions imposed on Gross by the court below, as Gross has not
appealed that judgment.
No. 01-20475
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AFFIRMED; MOTION TO SUPPLEMENT THE RECORD DENIED; SANCTIONS
MOTIONS DENIED.