     Case: 10-20173 Document: 00511280425 Page: 1 Date Filed: 11/01/2010




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

                                                 FILED
                                                                          November 1, 2010
                                     No. 10-20173
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAMES A. GREEN; PRINCE ELLA GREEN,

              Plaintiffs - Appellants

v.

JUDGE WAYNE MALLIA, State Actor; STEVEN LEYH, Officer of the Court;
SHELLY DOUGLAS, Officer of the Court; MICHAEL WESTON, Officer of the
Court; JEFF RECORDS, Chief Executive Officer/President of Midland/Midfirst;
LEYH & PAYNE LAW FIRM; MIDFIRST BANK; MIDLAND MORTGAGE;
BARRETT DAFFIN FRAPPIER TURNER & ENGEL LLP, formerly known as
Barrett Burke Wilson Castle Daffin & Frappier,

              Defendants - Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-4159


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiffs James and Prince Ella Green, pro se, appeal the dismissal of
their claims under 42 U.S.C. §§ 1981, 1983, 1985, 1986, the Bankruptcy Code,
and the RICO Act. For the reasons stated below, we AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                    No. 10-20173

                      I. Factual and Procedural Background
      This case stems from confusion surrounding an agreement to settle a state
court lawsuit. Plaintiff-Appellants filed suit in the 405th Judicial District Court
of Galveston County, Texas, alleging that several financial institutions were
improperly attempting to collect a debt that had been discharged in bankruptcy.
Plaintiffs settled with some of the defendants and were negotiating with
Midland Mortgage Co. (“Midland”) and a law firm now known as Barrett Daffin
Frappier Turner & Engal LLP (“Barrett Daffin”), both defendants in this case.
      Plaintiffs’ counsel in state court, Michael Weston, signed a Rule 11
Agreement on May 6, 2009, indicating that the parties had settled the case
against Midland and Barrett Daffin, though settlement details were still being
finalized.1   Based on emails exchanged in March and April 2009, Weston
believed he had authority to sign the Rule 11 Agreement; Plaintiffs had reviewed
a first draft of the proposed settlement agreement. Yet Plaintiffs claim Weston
did not have authority to settle, and they produced evidence that Mrs. Green
was receiving inpatient psychiatric care from May 3 through May 11. Thus, they
contend, she could not have agreed to a settlement.
      Nevertheless, state court Judge Wayne Mallia enforced the Rule 11
Agreement and ordered Plaintiffs to sign a Mutual Release.                  Plaintiffs
maintained they wished to proceed to trial. They appealed Judge Mallia’s order
in state court on December 3, 2009. On December 31, 2009, Plaintiffs filed a
federal complaint, alleging, among other things, that they were mistreated based
on their race and that Judge Mallia conspired with Defendants to coerce



      1
       Although originally a party to the case, pursuant to Appellants’ motion, Michael
Weston was dismissed from this appeal.

                                          2
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                                         No. 10-20173

Plaintiffs to sign a settlement against their wishes. Defendants filed motions to
dismiss under Fed. R. Civ. Pro. 12(b)(1) and 12(b)(6).
       On February 24, 2010, the district court granted Judge Mallia’s motion to
dismiss, finding he was entitled to complete judicial immunity. On March 4,
2010, the district court granted the remaining Defendants’ motions to dismiss
on the federal claims and declined to exercise supplemental jurisdiction over the
pending state law claims.2 In making its ruling, the court did not have access
to the Plaintiffs’ response because of a clerical error in the Clerk’s Office.
Plaintiffs filed a motion to reconsider under Fed. R. Civ. Pro. Rule 59(e). After
considering Plaintiffs’ response, the district court found no basis to alter any
substantive rulings.
       Plaintiffs filed this appeal on March 15, 2010, before the district court had
responded to the Rule 59 motion. Under Fed. R. App. Pro. 4(a)(B)(i), their notice
became effective to appeal the judgment after the order on the motion was
entered on March 29, 2010.


                                  II. Standard of Review
       This court reviews a grant of motion to dismiss de novo, viewing the facts
pleaded in the complaint in the light most favorable to the plaintiff.3 While
detailed factual allegations are not required, the plaintiff must state a “plausible




       2
         Since Plaintiffs did not brief the district court’s dismissal of the state law claims, any
objection to this finding is waived. See In re Tex. Mortgage Servs. Corp., 761 F.2d 1068, 1073
(5th Cir. 1985).
       3
        See, e.g., Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009);
Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992).

                                                3
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                                        No. 10-20173

claim for relief” to survive a motion to dismiss.4 We hold pro se briefs to less
stringent standards than formal pleadings drafted by lawyers.5 Pro se litigants
must brief the arguments in order to preserve them,6 but we have construed
Plaintiffs’ brief liberally when doubts exist as to whether subject matter was
properly briefed.


                                  III. Judicial Immunity
      Plaintiff-Appellants’ brief cites a variety of cases describing when state
actors are liable under 42 U.S.C. § 1983. However, Appellants fail to provide
reasons why Judge Mallia is not entitled to judicial immunity. The Supreme
Court “has consistently adhered to the rule that judges defending against § 1983
actions enjoy absolute immunity from damages liability for acts performed in
their judicial capacities.”7 The are only two instances when judicial immunity
does not apply: 1) when the judge was not acting in his judicial capacity; and 2)
when the judge acted in complete absence of jurisdiction, even if the actions were
judicial in nature.8       Neither of these two situations applies in this case.
Appellants make no allegations that Judge Mallia was acting outside his judicial
scope. Rather, they allege his ruling was improper and the result of a conspiracy
with other Defendants. Reading the complaint in the light most favorable to



      4
          Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
      5
          Haines v. Kerner, 404 U.S. 519, 520 (1972).
      6
          Price v. Digital Equipment Corp., 846 F.2d 1026 (5th Cir. 1988).
      7
          Dennis v. Sparks, 449 U.S. 24, 27 (1980) (internal quotation marks omitted).
      8
          Mireless v. Waco, 502 U.S. 9, 11-12 (1991).

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Appellants, any possible wrongdoing by Judge Mallia was strictly limited to acts
performed in his judicial capacity. Thus, the district court properly dismissed
the case against him.


                 IV. Section 1983 Claims Against Other Defendants
      Appellants allege no facts to indicate that Defendants conspired or worked
jointly with Judge Mallia. For example, Appellants claim that Judge Mallia
used a different standard of review for African-American pro se Appellants than
for opposing white counsel.         Even if this were true, Appellants present no
evidence that Defendants conspired with Judge Mallia to obtain this result. As
the Supreme Court has said, “merely resorting to the courts and being on the
winning side of a lawsuit does not make a party a co-conspirator or joint actor
with the judge.”9 Because none of the factual allegations describe concerted or
joint activity, the private Defendants did not act under color of state law, and the
district court properly dismissed Appellants’ § 1983 claims.


                             V. Remaining Federal Claims
      The district court opinion carefully explained that the federal courts did
not have subject matter jurisdiction over Appellants’ claims under 42 U.S.C. §§
1985, 1986 and the Bankruptcy Code because of the Rooker-Feldman doctrine.
This doctrine applies to “cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those




      9
          Dennis, 449 U.S. at 28.

                                           5
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                                        No. 10-20173

judgments.”10 Here, Judge Mallia, acting in state court, rendered a judgment
adverse to Appellants, which they sought to challenge in the federal district
court. Because Appellants’ claims are “inextricably intertwined” with the merits
of the underlying state suit, we lack jurisdiction.11 Moreover, Appellants’ brief
does not address the Rooker-Feldman doctrine or propose any theory for why the
district court erred in dismissing these claims. Thus, we may consider any such
arguments waived, notwithstanding the lenient standards we apply to pro se
litigants.
       Similarly, Plaintiffs have not adequately supported an appeal of their
RICO claims. Even if Plaintiffs did not waive this appeal, Plaintiffs asserted no
facts that would support a pattern of racketeering or demonstrate Defendants
were members of an ongoing association-in-fact.12 As a result, the RICO claims
were properly dismissed.


                                       VI. Conclusion
       We therefore AFFIRM the district court’s judgment dismissing Appellants’
claims. We DENY as unnecessary Defendants’ motion to strike Appellants’
record excerpts and brief.


       10
        ExxonMobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); Howell v.
Supreme Court of Texas, 885 F.2d 308, 312 (5th Cir. 1989).
       11
          See Liedtke v. State Bar of Tex., 18 F.3d 315, 316, 317-18 (5th Cir. 1994) (finding that
“[t]he casting of a complaint in the form of a civil rights action cannot circumvent” the Rooker-
Feldman doctrine).
       12
         See, e.g., St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir. 2009) (affirming a
dismissal of RICO claims when Appellants did not allege the requisite criminal acts); Crowe
v. Henry, 43 F.3d 198, 205 (5th Cir. 1995) (listing the requirements for association-in-fact
enterprises).

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