     Case: 19-40197      Document: 00515227143         Page: 1    Date Filed: 12/06/2019




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


                                      No. 19-40197
                                                                            FILED
                                                                     December 6, 2019
                                                                       Lyle W. Cayce
JOHNNY PARTAIN,                                                             Clerk

              Plaintiff - Appellant

v.

CITY OF SOUTH PADRE ISLAND, TEXAS; DENNIS W. STAHL; ANNA D.
STAHL; VICTOR CARRANZA,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:16-CV-317


Before DAVIS, SMITH, and COSTA, Circuit Judges.
PER CURIAM:*
       Johnny Ray Partain sued Dennis Stahl, Anna Stahl, Victor Carranza,
and the City of South Padre Island, bringing 42 U.S.C. § 1983 claims for
deprivation of civil rights and a Racketeer Influenced and Corrupt
Organizations Act (RICO) claim. Partain, proceeding pro se, now appeals the
district court’s summary judgment dismissal of his suit. For the reasons set
forth 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40197
                             I. BACKGROUND
      On or around April 1, 2014, Dennis Stahl hired general contractor, Jon
Wilson, for an extensive home renovation project. Together, the two ordered a
generator from Generac. Because it was a large, custom-made piece of
machinery, Generac referred them to Johnny Ray Partain, the company’s local
authorized representative. Stahl, Wilson, and Partain met on June 3, 2014.
Stahl ordered a $24,369.24 generator, delivering the check to Partain that
same day. Partain told Stahl that the generator would take four to six weeks
to build, and he could expect delivery between July 3 and July 17, 2014.
      The generator, however, never arrived. When Wilson and Stahl asked
Partain for a firm delivery date, he claimed he still needed to place the order.
Partain made various excuses for the non-delivery of the generator. Around
the end of August, Generac informed Partain it had canceled the order due to
lack of payment. By September 2014, Partain had ceased responding to Stahl
and Wilson.
      After further attempts to contact Partain failed, Wilson and Stahl went
to the South Padre Island (SPI) police department on October 14, 2014 and
spoke with Detectives Victor Carranza and Jaime Rodriguez. Wilson and Stahl
asked that charges be filed against Partain for theft. On his witness statement,
Stahl stated he was “unemployed,” making no reference to his candidacy for
city councilman.
      After initial struggles to contact Partain, Carranza and Rodriguez
interviewed Partain on October 27, 2014. During the interview, Partain
explained that he had used Stahl’s money for other projects. The detectives




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                                      No. 19-40197
told Partain that if he could promptly resolve the dispute, they would not file
charges. 1
       Nothing resulted. Partain further delayed repayment, and Stahl
contacted the police, again urging arrest. His email signature read “City
Councilman Elect” for the South Padre Island City Council, presumably
because he was running unopposed for the position.
       On October 29, 2014, Carranza filled out a probable cause statement. He
explained that Stahl had paid for a generator, which was now ready for pickup,
but that Partain had not paid Generac for it, despite having deposited Stahl’s
check. He further noted that Partain had been unresponsive and elusive. A
magistrate judge signed Carranza’s arrest warrant that day.
       Stahl was elected to the South Padre Island City Council on November
4, 2014 and sworn in ten days later. Partain, meanwhile, voluntarily
surrendered himself on November 5, 2014. A grand jury indicted Partain in
January 2015 and, after a two-day jury trial, Partain was found guilty of theft
in the third degree on December 11, 2015. He was sentenced to two years in
prison and five years of probation. The Court of Appeals for the Thirteenth
District of Texas reversed his conviction, however, on November 16, 2017. The
court reasoned that the state failed to prove Partain had the requisite intent
to deprive at the contract’s formation. 2
       While Partain’s criminal appeal was pending, Dennis Stahl and his wife
Anna sued Partain on November 20, 2015. Partain replied with a counterclaim
against the Stahls, the City of South Padre Island (SPI), and Carranza,
alleging claims under § 1983 for deprivation of civil rights and RICO. The



       1 In his affidavit, Carranza stated, “A timeframe was given to [Partain] to return the
money, but he did not meet that requirement.”
       2 Partain v. State, No. 13-16-00080-CR, 2017 WL 5505746, at *7 (Tex. App.—Corpus

Christi, Nov. 16, 2017, no pet.) (mem. op., not designated for publication).
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                                        No. 19-40197
counterclaim was severed, and that is the proceeding that was before the
district court. After SPI and the Stahls sought summary judgment in
September 2018, Partain filed a request for entry of default against Carranza
on November 13, 2018. The trial judge denied Partain’s motion and granted
summary judgment. Partain now appeals.
                                       II. ANALYSIS
       Partain contends he presented an issue of material fact to demonstrate
the defendants violated his constitutional rights under the Fourth, Fifth, and
Fourteenth Amendments and colluded against him in violation of RICO. He
also brings an abuse of process claim. This court reviews a grant of summary
judgment de novo. 3 Summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” 4
       First, Partain’s claims against SPI that its officers filed a false affidavit
to attain a warrant are without merit. The magistrate judge issued a thorough
opinion finding that there was no policymaker who had knowledge of the
affidavit’s contents. 5 Moreover, because there was no evidence that the factual
statements in the affidavit were false, the issuance of the warrant absolved the
city of any liability. The magistrate judge also correctly determined Partain
had no freestanding claim of malicious prosecution. 6 Lastly, the magistrate




       3 McClendon v. United States, 892 F.3d 775, 780–81 (5th Cir. 2018).
       4 FED. R. CIV. P. 56(a).
       5 See Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (requiring that to

hold a municipality liable for a § 1983 claim, a plaintiff must show that (1) a policymaker
acted on behalf of the city, (2) the action constituted an official policy, and (3) the policy was
the “moving force” of the constitutional violation).
       6 See Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc) (holding “no

such freestanding constitutional right to be free from malicious prosecution exists” under
§ 1983).
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                                       No. 19-40197
judge was correct in concluding that Partain’s Equal Protection claim was
without merit—he failed to show SPI acted without rational basis. 7
       Partain’s claims against the Stahls similarly fail. Dennis Stahl ran for
city councilman unopposed, but he had not yet been sworn in when Partain
was arrested. We agree with the magistrate judge that Mr. Stahl was not a
state official. 8 We also agree that, in urging the police to make an arrest, he
did not act under color of state law. 9 As to Anna Stahl, Partain provides no
evidence that she held any government position or was in any way involved in
pressing charges. Partain’s abuse of process claim, meanwhile, is not properly
before this court. 10
       We further agree with the dismissal of Partain’s RICO claims against
both the Stahls and SPI. The magistrate judge correctly concluded that Partain




       7  See Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (a
class-of-one equal protection claim requires that a plaintiff show he was intentionally treated
differently from others similarly situated with no rational basis for the difference in
treatment). On appeal, Partain argues he brought a procedural due process claim that the
magistrate judge did not address. “In procedural due process claims, the deprivation by state
action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself
unconstitutional; what is unconstitutional is the deprivation of such an interest without due
process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990). Partain does not identify how
he was denied procedural due process. In fact, Partain readily admits he received a full
criminal trial and an appeal. Summary judgment was appropriate on this claim as well.
        8 See, e.g., Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 1990) (holding that a candidate

who had not yet taken office could not be considered a state actor), aff’d, 502 U.S. 21 (1991).
        9 In Moody v. Farrell, 868 F.3d 348, 354 (5th Cir. 2017), this court held that an ex-

husband did not act as a state actor when he pressed charges against his former wife. The
police department conducted an independent investigation and came to its own conclusion,
with which a justice court judge agreed; at best, the husband only pressured the police. Id.
at 353–54.
        10 “A claim which is not raised in the complaint but, rather, is raised only in response

to a motion for summary judgment is not properly before the court.” Hoffman v. L & M Arts,
838 F.3d 568, 576 (5th Cir. 2016) (quoting Cutrera v. Bd. of Supervisors of La. State Univ.,
429 F.3d 108, 113 (5th Cir. 2005)). Although arguments by pro se litigants are liberally
construed, pro se litigants must comply with the relevant rules of procedure. See Birl v.
Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per curiam) (“The right of self-representation does
not exempt a party from compliance with relevant rules of procedural and substantive law.”).
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                                        No. 19-40197
failed to establish a pattern of racketeering activity. 11 The district court
properly granted summary judgment on these claims.
       Partain now argues for the first time on appeal that the district court
judge erred in failing to recuse himself pursuant to 28 U.S.C. § 455(a). As
Partain raises this issue for the first time on appeal, his claim fails. 12
Regardless, his claim would also falter on the merits; a plaintiff may not name
a judge as a witness and cite to previous cases plaintiff filed over which the
judge presided to force a recusal. 13
       Lastly, Partain maintains that the court should have granted his motion
for entry of default in his suit against Carranza, which in turn would have
allowed him to prevail on summary judgment. This court reviews a denial of a
default judgment for abuse of discretion. 14 The magistrate judge was correct in
concluding that, because Partain sued Carranza in his official capacity, his
claims against Carranza are co-extensive against the city. 15




       11  See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241 (1989) (requiring a plaintiff
show either a closed period of repeated conduct or past conduct with threat of repetition).
        12 Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (“Requests for recusal

raised for the first time on appeal are generally rejected as untimely.”).
        13 See, e.g., Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone

almost never constitute a valid basis for a bias or partiality motion.”); United States v. Owens,
902 F.2d 1154, 1156 (4th Cir. 1990) (“Parties cannot be allowed to create the basis for recusal
by their own deliberate actions.”).
        14 Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988).
        15 Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all

respects other than name, to be treated as a suit against the entity.”). See also Doe v. Fort
Zumwalt R-II Sch. Dist., 920 F.3d 1184, 1991 (8th Cir. 2019) (a school district’s answer could
constitute a responsive pleading on behalf of a school-district official sued in his official
capacity). The parties also extensively argue over whether Carranza was properly served.
The argument is moot; the Fifth Circuit has held service of process against an individual in
his official capacity need only comply with Rule 4(j) of the Federal Rules of Civil Procedure.
See Moore v. Hosemann, 591 F.3d 741, 747 (5th Cir. 2009). See also 4 CHARLES ALAN WRIGHT
& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1109 (4th ed. 2019).
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                               No. 19-40197
                           III. CONCLUSION
     For these reasons and those advanced by the magistrate judge in his
thorough report, we AFFIRM the district court’s judgment.




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