     Case: 12-30617       Document: 00512206026         Page: 1     Date Filed: 04/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 12, 2013

                                       No. 12-30617                        Lyle W. Cayce
                                                                                Clerk

BELVA WEBB; FAITH WEBB,

                                                  Plaintiffs – Appellants
v.

JOSEPH P. MORELLA,

                                                  Defendant – Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             Case No. 6:10-cv-01557


Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellants Belva and Faith Webb appeal the dismissal of their federal civil
rights claims and the district court’s imposition of Rule 11 sanctions against
them. In addition to opposing the Webbs’ appeal, Appellee Joseph Morella
moves for sanctions pursuant to Federal Rule of Appellate Procedure 38, 28
U.S.C. § 1912, and 28 U.S.C. § 1927. For the reasons set forth below, we
AFFIRM the district court’s dismissal of the Webbs’ federal claims against
Morella and GRANT Morella’s motion for sanctions on appeal.                        We lack

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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jurisdiction to consider the district court’s award of Rule 11 sanctions because
the district court has yet to reduce the award to a sum certain and therefore
DISMISS that portion of the appeal.
                                        I
      The Webbs’ complaint alleges the following facts, which, although denied
by Morella, we must take as true for purposes of reviewing the district court’s
dismissal of their claims. See Highland Capital Mgmt., L.P. v. Bank of Am. Nat’l
Ass’n, 698 F.3d 202, 205 (5th Cir. 2012).
      At some time prior to October 19, 2009, the Webbs purchased a piece of
real property located at 619 Kentucky Street in Patterson, Louisiana (the
“Property”). Morella acted as the closing attorney on the transaction. The
Webbs later agreed to sell the Property to Patrick LaSalle, with Morella again
acting as closing attorney. Pursuant to the purchase agreement, LaSalle paid
the Webbs a $1,000 deposit in advance of closing. At some point thereafter,
Morella contacted the Webbs and informed them that there was a lien on the
Property and that, due to the lien, LaSalle no longer wished to proceed with the
transaction. Morella instructed the Webbs to return the $1,000 to LaSalle.
When the Webbs attempted to return the money to LaSalle, however, he told
them to give the money to Morella. The Webbs then went to Morella’s law office
to deliver the $1,000.    Because Morella was the closing attorney for the
transaction in which the Webbs had originally purchased the Property, the
Webbs asked Morella how a lien came to exist on the Property. In response,
Morella verbally assaulted the Webbs with racial slurs and then physically
threatened them as they attempted to leave his office. In addition to being a
private attorney, Morella is also a part-time town court judge.
                                        II
      The Webbs filed suit against Morella on October 12, 2010 in the United
States District Court for the Western District of Louisiana, alleging a variety of

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state-law claims as well as federal due process and equal protection claims
pursuant to 42 U.S.C. § 1983. With respect to the § 1983 actions, the complaint
states that although the confrontation with the Webbs “took place in Judge
Morella’s private law office, his actions took place under the color of law” because
“as a town court judge [Morella] acts on and off the bench under the color of law
such as to give rise to claims under 42 U.S.C. § 1983 and related jurisprudence.”
      Morella moved to the dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing, inter alia, that even accepting the Webbs’
version of events, he could not be liable under § 1983 because he did not act
under color of state law. Morella also moved for Rule 11 sanctions on the ground
that the Webbs had filed the complaint solely to harass him. The Webbs’ briefs
responding to Morella’s motions failed to comply with the district court’s local
rules. Because the Webbs did not cure the deficiencies in their briefing, the
district court granted Morella’s motions as unopposed. The Webbs appealed and
a panel of this court vacated the district court’s orders, holding that dismissal
with prejudice was not appropriate because the Webbs had not engaged in
contumacious conduct or extreme delay and that Rule 11 sanctions should not
have been awarded solely on the ground that the Webbs’ failed to respond to the
sanctions motion. See Webb v. Morella, 457 F. App’x 448, 454 & n.5 (5th Cir.
2012).
      On remand, Morella moved for a hearing on his motion to dismiss and his
motion for sanctions. On April 19, 2012, the district court held a hearing on both
motions and questioned the Webbs’ counsel on how Morella could have been
acting under color of state law, given the allegations in the Webbs’ complaint.
Counsel for the Webbs conceded that the alleged altercation occurred in
Morella’s private law office and that the Webbs did not allege that the city,
parish, or state paid for the office or that Morella was wearing a judge’s robe at
the time of the alleged incident. The only argument the Webbs’ counsel offered

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in support of § 1983 liability was the assertion that Morella acts at all times
under color of state law because he is a part-time municipal court judge. The
district court rejected that argument and found that the Webbs had failed to
state a claim under § 1983. The court dismissed the Webbs’ federal claims with
prejudice and declined to assert supplemental jurisdiction over the Webbs’ state
law claims.1 The district court also granted Morella’s motion for Rule 11
sanctions, awarding him attorneys’ fees at the rate of $200 per hour for
preparation and argument of the motion to dismiss the § 1983 claims. The court
directed Morella to file an itemized summary of fees and expenses for the court’s
approval. Morella did so by way of a motion for attorneys’ fees on May 9, 2012.
The court initially set an oral argument date of November 15, 2012 for the
motion, but later cancelled the hearing. To date, the district court has not acted
on Morella’s May 9, 2012 motion.
                                               III
       The Webbs appeal the dismissal of their § 1983 claims for failure to state
a claim and the district court’s imposition of Rule 11 sanctions against them.
                                               A
       “A district court’s grant of a motion to dismiss is reviewed de novo, using
the same standard as the district court.” Davis v. Tarrant Cnty., 565 F.3d 214,
217 (5th Cir. 2009). “Under the Rule 12(b)(6) standard, all well-pleaded facts are
viewed in the light most favorable to the plaintiff, but plaintiffs must allege facts
that support the elements of the cause of action in order to make out a valid


       1
         The Webbs complain that the district court ruled from the bench and did not issue a
formal written opinion. The Federal Rules of Civil Procedure, however, do not require that
a district court provide a written memorandum explaining its reasons for a Rule 12 dismissal.
FED. R. CIV. P. 52(a)(3). Moreover, contrary to the Webbs’ claim, the district court’s failure to
provide written reasons for its ruling did not hinder their ability “to argue and cite authorities
in support of their claims and defenses” on appeal. At the hearing on Morella’s motion to
dismiss, the court made clear that it was granting Morella’s Rule 12(b)(6) motion because
Morella was not acting under color of state law when the alleged incident took place.

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claim.” City of Clinton v. Pilgrim’s Pride Corp., 632 F.3d 148, 152–53 (5th Cir.
2010). “[C]onclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” Fernandez–Montes
v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). “To state a claim under
§ 1983, a plaintiff must allege facts tending to show that the defendant has acted
under color of state law.” Richard v. Hoechst Celanese Chem. Grp., Inc., 355
F.3d 345, 352 (5th Cir. 2003) (internal quotation marks omitted); see also S.
Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d
781, 786 (5th Cir. 2001) (“In the context of a 12(b)(6) motion in a section 1983
suit, the focus should be whether the complaint properly sets forth a claim of a
deprivation of rights, privileges, or immunities secured by the Constitution or
laws of the United States caused by persons acting under color of state law.”
(internal quotation marks omitted)). “The under-color-of-state-law element of
§ 1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrongful.” Richard, 355 F.3d at 352 (internal alterations
omitted) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)).
       On appeal, the Webbs, without citing a single case discussing § 1983,
repeat the argument they made to the district court: that because Morella is a
part-time municipal court judge, his every action, on or off the bench, falls
within the purview of § 1983.2 “Private acts, however, are not considered to be


       2
         As an alternative argument, the Webbs assert, again without citing any authority,
that § 1983 liability arises “not only when a person acts under the color of law, but also when
he acts under ‘custom’ or ‘usage’ within any state of the union.” Acting pursuant to custom or
usage, however, is not an alternative to the color-of-state-law requirement of § 1983, but is
rather a specific means of meeting that requirement. Bennett v. City of Slidell, 728 F.2d 762,
767 (5th Cir. 1984) (“Section 1983 itself uses ‘custom’ and ‘usage’ in describing the aegis of
state law under which a person must have acted to be subject to § 1983 liability.”). The Webbs
assertion that conduct under color of state law is not a required element of a § 1983 claim is
contradicted by clearly established case law. See, e.g., Richard, 355 F.3d at 352; Morris v.
Dearborne, 181 F.3d 657, 666 n.6 (5th Cir. 1999) (“Liability under § 1983 also requires a
showing that the alleged deprivation of a constitutional right was committed by a person
acting under color of state law.”); Jackson v. Louisiana, 980 F.2d 1009, 1010 (5th Cir. 1993)

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done under color of state law merely because the actor is a public official.”
Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988) (internal quotation
marks omitted). Rather, it is well established that “the act of one who is a state
officer, not taken by virtue of or clothed with his state authority, will not be
considered as done under color of state law simply because the individual,
although pursuing private aims, happens to be a state officer.” Brown v. Miller,
631 F.2d 408, 411 (5th Cir. 1980); see also Washington v. Atoms Energy Corp.,
No. 07-50296, 2007 WL 2493492, at *1 (5th Cir. Sept. 4, 2007) (holding that
judge did not act under color of state law in filing criminal complaint as private
individual); Cruz v. Hopper, 73 F. App’x 62, 63 (5th Cir. 2003) (“Cruz has not
shown any state action on Hopper’s part; that she may have been a municipal
judge is irrelevant given that Cruz does not sue her in that capacity, citing her
actions as a private attorney only. Thus, as the district court determined, the
suit fails to state a cognizable claim under 42 U.S.C. § 1983.”); Tierney v. Vahle,
304 F.3d 734, 741–42 (7th Cir. 2002) (holding that judge did not act under color
of state law by sending personal letter on judicial letterhead). The Webbs do not
dispute that Morella’s alleged conduct occurred solely in his capacity as a private
attorney. Accordingly, we AFFIRM the district court’s dismissal of the Webbs’
§ 1983 actions for failure to state a claim on which relief can be granted.
                                            B
       The Webbs raise a number of issues relating to the district court’s decision
to impose sanctions. While the court granted Morella’s Rule 11 motion and
stated that it would award $200 per hour in attorneys’ fees for work relating to
the motion to dismiss, the court also required Morella to filed an itemized
summary of fees and expenses “for the court’s approval.” Morella has filed the


(“A claim under section 1983 requires: first, the conduct complained of must have been
committed by a person acting under color of state law.” (internal alterations and quotation
marks omitted)).

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required summary, but the court has yet to approve or disapprove the charges
listed therein. An award of attorneys’ fees or costs that does not “reduce the
sanctions to a sum certain” is not an appealable final decision and therefore
cannot be reviewed by this court. S. Travel Club, Inc. v. Carnival Air Lines, Inc.,
986 F.2d 125, 131 (5th Cir. 1993). Because the district court has yet to reduce
its award of attorneys’ fees to a sum certain, we lack jurisdiction to review its
decision to impose sanctions. Id. We therefore DISMISS that portion of the
Webbs’ appeal.
                                        IV
      Morella moves this court for sanctions on appeal pursuant to Federal Rule
of Appellate Procedure 38, 28 U.S.C. § 1912, and 28 U.S.C. § 1927. The Webbs
did not file a brief in response to Morella’s motion and do not discuss the motion
in their reply brief on the merits. Under Rule 38, we may award “just damages
and single or double costs to the appellee” if we determine that an appeal is
frivolous. FED. R. APP. P. 38. “An appeal is frivolous [for purposes of Rule 38]
if the result is obvious or the arguments of error are wholly without merit.”
Howard v. St. Germain, 599 F.3d 455, 458 (5th Cir. 2010) (internal quotation
marks omitted). “Rule 38 empowers a court to sanction a party, an attorney for
a party, or both.” 16AA CHARLES ALAN WRIGHT         ET AL.,   FEDERAL PRACTICE &
PROCEDURE § 3984.1 (4th ed.); see also Macklin v. City of New Orleans, 300 F.3d
552, 554 (5th Cir. 2002); Coghlan v. Starkey, 852 F.2d 806, 818 (5th Cir. 1988).
      As Morella points out, the Webbs’ appellate briefing generally ignores the
instant case and instead focuses on a separate lawsuit the Webbs have filed
against him and a host of municipal agencies and officials alleging a conspiracy
to fabricate Belva Webb’s drug test results. The Webbs also spend a substantial
portion of their briefing accusing Morella of committing hate crimes in violation
of 18 U.S.C. § 246(b)(2)(B), although they acknowledge that there is no civil
cause of action under that statute. In the few pages the Webbs dedicate to the

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district court’s dismissal of their § 1983 claims, they advance only frivolous
arguments without any supporting authority, citing no case law to support their
contentions that a public official engaged in private matters acts under color of
state law or that acting under color of state law is not a required element of a
§ 1983 claim. Both these arguments are wholly without merit.
      Moreover, the Webbs’ attorney, Daniel G. Abel, has repeatedly engaged in
sanctionable conduct before this court. In Chisei v. Auto Club Family Ins. Co.,
374 F. App’x 475, 477 (5th Cir. 2010), a panel of this court awarded sanctions
against Mr. Abel’s client because Mr. Abel’s briefs were “wholly without merit,”
“fail[ed] to fairly address the substance of the district court’s findings,” and
“demonstrate[d] a pointed disrespect for ‘the limited resources of the judicial
system.’” (quoting Stearman v. Comm’r, 436 F.3d 533, 540 (5th Cir. 2006)). In
Martin v. Magee, No. 12-30263, 2012 WL 6644228, at *2 (5th Cir. Dec. 12, 2012),
another panel of this court imposed $3,000 in sanctions against Mr. Abel, after
finding that his briefing “indentifie[d] no legal error and raise[d] no significant,
appealable issue.” Mr. Abel’s actions in this case continue what the Martin
panel correctly described as “a continued pattern of filing frivolous, vexatious
appeals that waste judicial resources.” Id.
      Because the instant appeal is frivolous, vexatious, and wastes judicial
resources and because Mr. Abel has repeatedly abused the appellate process, we
GRANT the motion for sanctions and impose sanctions against Mr. Abel in the
amount of the reasonable attorneys’ fees and costs incurred by Morella in
connection with this appeal.         We REMAND to the district court for
determination of reasonable fees and costs.


AFFIRMED IN PART; DISMISSED IN PART; Sanctions ORDERED;
REMANDED for determination of reasonable fees and costs.



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