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

                                                                            FILED
                                                                        December 23, 2008
                                     No. 08-30523
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

KELVIN WELLS,

                                                  Plaintiff-Appellant,

v.

MUNIR ALI; MELVA CAVANAUGH; and TOM HANLON

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                           USDC No. 06-400-JVP-DLD


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       On June 8, 2006, Plaintiff-Appellant Kelvin Wells (“Wells”) filed suit
against Defendants-Appellees Melva Cavanaugh (“Cavanaugh”), Munir Ali
(“Ali”), and Tom Hanlon, Sr. (“Hanlon”) in the United States District Court for
the Middle District of Louisiana, alleging violations of his civil rights under 42
U.S.C. § 3601 et seq (the Fair Housing Act, or “FHA”), 42 U.S.C. § 1983, and
parallel state law in connection with Ali’s eviction action against Wells.
Cavanaugh and Hanlon moved for dismissal, and Ali moved for summary


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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judgment.      United States District Judge John V. Parker dismissed with
prejudice the claims against Cavanaugh on March 29, 2007, pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), and dismissed Hanlon from the
suit without prejudice on October 26, 2007, pursuant to Rule 4(m), on the
grounds that Wells failed to serve him properly. Wells appealed, but at that
time, no judgment had yet been rendered below on one of his claims (the one
against Ali), so we dismissed all claims without prejudice for lack of jurisdiction.
See Wells v. Ali, No. 07-31059, slip op. (5th Cir. Jan. 8, 2008) (citing Thompson
v. Betts, 754 F.2d 1243, 1245 (5th Cir. 1985)). The district court granted
summary judgment in Ali’s favor on May 13, 2008. Wells now appeals.
       In substance, Wells’s pleadings contend that defendants racially
discriminated against him in violation of the above-mentioned federal statutes.
Wells failed to brief his state-law claims; accordingly, they are waived.** Ruiz v.
United States, 160 F.3d 273, 275 (5th Cir. 1998). We affirm the judgments of the
district court in their entirety.
                        I. Wells’s Claims against Cavanaugh
       Wells claimed that Cavanaugh, a Justice of the Peace in East Baton Rouge
Parish in Louisiana, violated his rights under § 1983 and the FHA in connection
with his eviction. Specifically, Wells’s complaint alleges that Cavanaugh “had
plaintiff evicted” and “is still holding monies” related to those eviction
proceedings. In addition, his brief claims she called Wells, who is African-
American, a repugnant racial epithet and “attack[ed] him [and] snatch[ed] [sic]
the door as he was leaving [her office] during her tirade.” Wells’s claims against
Cavanaugh were dismissed for lack of subject matter jurisdiction, failure to state




       **
         Even if Wells’s brief were understood to appeal the adverse judgments on his parallel
state-law claims, the same immunity doctrines, defects in subject matter jurisdiction and
service of process, and factual insufficiencies that bedeviled Wells below, see infra, would
require dismissal of those state claims in this court as well.

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a claim upon which relief can be granted, and on the basis of judicial and
Eleventh Amendment immunity.
      We review dismissals under Rules 12(b)(1) and 12(b)(6) de novo, and
according to the same standard. Fernandez-Montes v. Allied Pilots Ass’n, 987
F.2d 278, 284 (5th Cir. 1993); Benton v. United States, 960 F.2d 19, 21 (5th Cir.
1992). That standard requires us to take the factual allegations of the complaint
as true and resolve ambiguities in the plaintiff’s favor. Benton, 960 F.2d at 21.
“[C]onclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss,” however. Fernandez-
Montes, 987 F.2d at 284. We construe pro se litigants’ pleadings liberally,
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), but pro se litigants are not
exempt from compliance with the relevant rules of procedure and substantive
law, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981).
A. Judicial Immunity
      Even taking Wells’s bare, unsupported allegations against Cavanaugh as
true, his suit against her would be barred. Judges enjoy absolute immunity from
suit for acts undertaken in their judicial capacity. Mireles v. Waco, 502 U.S. 9,
10 (1991) (finding judicial immunity to be absolute and “not overcome by
allegations of bad faith or malice” or corruption). Because Wells alleges conduct
in connection with Cavanaugh’s official acts, his claims trigger judicial
immunity. The Supreme Court has explained that two limited exceptions to this
doctrine exist: acts the judge takes in a non-judicial capacity, and “actions,
though judicial in nature, taken in the complete absence of all jurisdiction.” Id.
at 11–12. Neither exception applies here.
      According to Wells’s pleadings, Cavanaugh (1) ordered him evicted and
held money relating to the eviction proceeding, and (2) slammed shut the door
to her chambers and hurled a racist epithet at him while ordering him out of her
chambers. The first pair of Cavanaugh’s actions appear to have been a plain
exercise of Cavanaugh’s judicial authority.       Although he claims her acts

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exceeded her jurisdiction (he does not specify which acts, but we will consider
him to have alleged that all did), Wells offers no legal support whatsoever for
that claim.
      The district court properly found that the second pair also constituted
official acts because they allegedly arose out of Wells’s visit to Cavanaugh’s
official chambers. As a result, the repugnant nature of the word Wells claims
Cavanaugh used and her alleged slamming of the door would not strip her of
judicial immunity, as Wells claims both acts occurred in the course of his visit
to the judge’s chambers about his case before her, and arose from that visit.
They therefore satisfy this circuit’s four-part judicial immunity test.        See
Ammons v. Baldwin, 705 F.2d 1445, 1447 (5th Cir. 1983). This is so even though
the use of a racial epithet by a sitting judge would be outrageous and an insult
to both a litigant and the judge’s own office. In addition, although threats of
physical force by a judge do not constitute a normal judicial function entitled to
immunity, slamming a door falls far short of such a threat. See, e.g., id. at 1448
(affirming dismissal of § 1983 action because plaintiff failed to allege the judge
placed him “in fear of imminent harm, or that [the judge] took any actions
indicating an immediate intent to carry out the alleged threats”).
      Wells’s citation to Hafer v. Melo, 502 U.S. 21, 31 (1991) for the proposition
that Cavanaugh may be sued notwithstanding the Eleventh Amendment’s grant
of immunity is inapposite. Hafer states that, in contrast to the executive officers
whose Eleventh Amendment immunity Congress abrogated in some
circumstances under § 1983 (pursuant to § 5 of the Fourteenth Amendment),
“judges carrying out their judicial functions” enjoy “absolute immunity . . . for
their official actions.” Id. at 29.
B. Other Mandatory Grounds for Dismissal
      Even if judicial immunity did not require dismissal, however, this court
would have no choice but to dismiss Well’s attempt to relitigate his eviction-
related claims in federal court under the Rooker-Feldman doctrine, and all

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claims against her on grounds of Eleventh Amendment sovereign immunity, for
reasons explained in the Magistrate Judge’s thorough report of December 6,
2006, which the district court adopted. See Exxon Mobil Corp. v. Saudi Basic
Industries Corp., 544 U.S. 280, 283 (2005) (holding that federal district courts
are barred by the Rooker-Feldman doctrine from hearing cases, like Wells’s, that
are “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 judgments”) (applying
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) and
Rooker v. Fidelty Trust, 263 U.S. 413 (1923)); Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 71 (1989) (holding that a suit against a state official acting
in her official capacity constitutes a suit against the state and is therefore barred
by the Eleventh Amendment, even if brought pursuant to § 1983).
      For these reasons, the district court was correct to dismiss all claims
against Cavanaugh.
                        II. Wells’s Claims against Hanlon
      The district court dismissed all claims against Hanlon because he was not
properly served. Although Wells claims this dismissal was erroneous because
“Federal Marshals did not complete [their] mission when their orders were to
serve Tom Hanlon,” and because “they [presumably the district court] ha[d] an
affidavit confirming service” on Hanlon, these claims are unavailing. A review
of Rule 4 of the Federal Rules of Civil Procedure, which prescribes the procedure
for properly serving a defendant with process, reveals that the district court had
no choice but to reach this result. The requirements of Rule 4 are phrased in
plainly mandatory language. To comply, the plaintiff must ensure that the
summons be signed by the clerk of the court and bear the court’s seal (Rule
4(a)(1)(F-G)); state the time within which the defendant must appear and defend
the allegations (Rule 4(a)(1)(D)); and name the court and the parties (Rule
4(a)(1)(A)).   Although, as Wells contends, he satisfied some of the other

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conditions of service of process, he failed to satisfy these requirements. He
complains of insufficient help from the U.S. Marshals, but the ultimate
obligation to comply with Rule 4 lies with him, not the Marshals. Therefore the
district court’s dismissal of all claims against Hanlon was correct.
                         III. Wells’s Claims against Ali
      Wells’s claims against Ali were dismissed by summary judgment. Ali, like
Wells, proceeds pro se. We will treat Ali’s papers, titled “Appellee’s Brief and
Motion to Dismiss the Case,” as a response to Wells’s appeal of the grant of
summary judgment.
      The court “review[s] grants of summary judgment de novo, applying the
same legal standard used by the district court.” Chacko v. Sabre, Inc., 473 F.3d
604, 609 (5th Cir. 2006). Summary judgment is proper “if the pleadings,
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “After adequate time for
discovery and upon motion,” summary judgment is appropriate “against a party
who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Gunaca
v. Texas, 65 F.3d 467, 469 (5th Cir. 1995). The moving party “must ‘demonstrate
the absence of a genuine issue of material fact,’ but need not negate the elements
of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc) (quoting Celotex, 477 U.S. at 323-25). If the moving party “fails
to meet this initial burden, the motion must be denied, regardless of the
nonmovant’s response.” Id. at 1075.
      Wells claims Ali discriminated against him because of his race and
disability in the provision of housing, in violation of the FHA. The evidence
offered below revealed the following. Wells rented an apartment from Ali in
Baton Rouge, Louisiana, first by written lease (from January 11, 2005 until June

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30, 2005) and then on a month-to-month basis. The lease stipulated that Wells
would have two parking places on the premises. After the lease was signed,
Wells began parking three vehicles there. In addition, Wells requested at some
point that Ali make repairs to Wells’s apartment (specifically, that he arrange
for mold to be removed), which Ali appears to have done but not to Wells’s
satisfaction. Wells failed to pay his September 2005 rent on time and failed to
pay an assessed late fee. Ali notified Wells in writing that he was not renewing
his lease, and gave him a 30-day Notice to Vacate by November 1, 2005. The
reasons given were Wells’s violation of the lease’s provision regarding the
number of parking places and his non-payment of the late fee. Wells responded
that he would not remove the third vehicle under any circumstances. He also
claimed that Ali had made disparaging comments to him about his disability
(namely, that he did not look disabled) and had called him by the same racial
epithet as Cavanaugh.
          On November 4, 2005, Ali filed a Petition of Eviction and Order; ten days
later, a judgment of eviction was granted, though it was later reversed. Wells
also filed an FHA complaint with the Department of Housing and Urban
Development (“HUD”) on June 14, 2006. After conducting an investigation,
HUD issued a “Determination of No Reasonable Cause” letter, notifying Wells
that the agency had no reasonable cause to believe that a discriminatory housing
practice had occurred.*** HUD found that between June 2005 and June 2007, Ali
had thirteen tenants, all African-American, of whom eight were evicted for non-
payment of rent, four voluntarily moved out, and one failed to sign the lease. In
addition, at the time of HUD’s report, Ali was renting to three individuals; all
were African-American, all were disabled, and all paid their rents on time. HUD
further found that there were no disinterested witnesses to the events of which
Wells had complained. On these facts, the district court found that Wells had

          ***
             Although this court is not reviewing HUD’s decision here, this letter is part of the
record.

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failed to offer evidence of a genuine issue of material fact on his FHA claim
against Ali sufficient to withstand summary judgment. We agree.


                              CONCLUSION
     For the reasons stated above, the judgments of the district court are
AFFIRMED.




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