                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                   FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 11-13276                     JULY 9, 2012
                           Non-Argument Calendar                 JOHN LEY
                         ________________________                 CLERK


                    D. C. Docket No. 1:10-cv-03282-RWS

GERALD KELLER,

                                                             Plaintiff - Appellant,

                                     versus

ROBERT M. STRAUSS, M.D.,
GASTROINTESTINAL SPECIALISTS
OF GEORGIA PC, et al.,

                                                          Defendants - Appellees.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                                 (July 9, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Gerald Keller appeals pro se from the district court’s dismissal with
prejudice of his federal claims and dismissal without prejudice of his state-law

claims, which Keller brought in a civil action seeking damages for: (1) medical

negligence; (2) breach of contract; (3) intentional infliction of emotional distress;

(4) breach of fiduciary duty; (5) violation of the Federal Racketeer Influenced and

Corrupt Organizations Act (“RICO”); (6) violation of binding customary law

predicated on the right to human dignity; (7) constructive fraud; (8) actual fraud;

(9) common law fraud; and (10) mail fraud.1 Under his medical negligence claim,

Keller also alleged violations of the Federal Food, Drug, and Cosmetic Act

(“FDCA”). Keller’s claim arose out of his participation as a research subject in a

clinical trial designed to test the safety and efficacy of a drug intended to treat

hepatitis C. Keller alleged that, after he experienced adverse side effects, the

defendants denied him follow-up medical care in violation of the informed consent

contracts he signed before participating in the trial.

       On appeal, Keller raises two primary arguments: (1) the district court erred

by dismissing Keller’s RICO claim and finding that his amendments would be

futile; and (2) the district court erred by dismissing Keller’s FDCA claims and by




       1
               Keller also alleged that the United States government violated the Federal Tort
Claims Act by failing to investigate his complaint. However, Keller has voluntarily dismissed all
claims against the United States.

                                                2
ruling with prejudice on Keller’s state-law claims.2



I. RICO Claim

       Keller argues that the district court erred in dismissing with prejudice his

civil RICO claim and by finding that it would be futile to grant leave to amend the

complaint.

       We review de novo a district court’s dismissal of a complaint for failure to

state a claim. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056-57 (11th

Cir. 2007). While courts should “freely give” leave to amend a pleading prior to

trial, Fed. R. Civ. P. 15(a)(2), we have held that a court does not abuse its

discretion if it denies leave to amend where the amendment would be futile.

Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999).

       To establish a federal civil RICO violation under 18 U.S.C. § 1962(c), a

plaintiff must show conduct of an enterprise through a pattern of “racketeering

activity.” Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282 (11th Cir. 2006)


       2
                To the extent that Keller argues that the district court erred by denying Keller’s
motion to strike, by construing a motion to dismiss as one for judgment on the pleadings, and by
not liberally construing his briefs, we find no abuse of discretion. See Chudasama v. Mazda
Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997) (noting that a district court has broad
discretion in managing its docket); Skrtich v. Thornton, 280 F.3d 1295, 1307 n.13 (11th Cir.
2002) (noting that the district court may construe a motion to dismiss that was filed after an
answer as a request for judgment on the pleadings pursuant to Rule 12(c)).

                                                3
(quotation omitted). In order to obtain standing under RICO, the plaintiff must

suffer an injury in his business or property. 18 U.S.C. § 1964(c); Bivens Gardens

Office Bldg., Inc. v. Barnett Banks of Fla., Inc., 140 F.3d 898, 906 (11th Cir.

1998). We decline Keller’s invitation to find an exception to our precedent stating

that personal injury and resulting pecuniary losses are not cognizable under RICO.

Grogan v. Platt, 835 F.2d 844, 847-48 (11th Cir. 1988). Since Keller can assert

only personal injury damages, the district court correctly dismissed Keller’s RICO

claim and found that amendment would be futile.



II. FDCA Claim

      With a few exceptions irrelevant to this case, actions brought “for the

enforcement, or to restrain violations” of the FDCA “shall be by and in the name

of the United States.” 21 U.S.C. § 337(a), (b)(1). In no situation does the FDCA

provide for a private cause of action. Ellis v. C.R. Bard, Inc., 311 F.3d 1272, 1284

n.10 (11th Cir. 2002). Accordingly, to the extent that Keller brought claims for

the enforcement or to restrain violations of the FDCA, the district court was proper

to dismiss them.

      To the extent that Keller believes the district court erred by dismissing his

remaining state-law claims with prejudice, we note that these claims were actually

                                          4
dismissed without prejudice, see Dkt. 76 at 16, and we find no abuse of discretion

in the district court’s decision to do so. See Estate of Amergi v. Palestinian Auth.,

611 F.3d 1350, 1356 (11th Cir. 2010).

        AFFIRMED.3




        3
                 Keller argues in his reply brief that the district court erred in dismissing his claims
involving violations of international law. However, “we do not address arguments raised for the
first time in a pro se litigant’s reply brief.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008).

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