  Case: 09-10832   Document: 00511060555    Page: 1   Date Filed: 03/24/2010




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

                                               FILED
                                                               March 24, 2010
                              No. 09-10832
                            Summary Calendar              Charles R. Fulbruge III
                                                                  Clerk



FRANK J. BANKS; SHARNIA BURFORD;
ANTHONY TATE; DARRELL THOMAS,

                                        Plaintiffs-Appellants,

versus

FEDERAL DEPOSIT INSURANCE CORPORATION,
Head Office, Washington, D.C.;
FDIC REGIONAL OFFICE, Dallas, Texas;
FDIC FIELD OFFICE, Memphis, Tennessee;
SUE MATSON, Individually and in Her Official Capacity;
PATRICIA LENFERT, Individually and in Her Official Capacity;
DIANE CROOME, Individually and in Her Official Capacity;
MICHAEL R. TREGLE, Individually and in His Official Capacity;
JANICE LOWMAN, Individually and in Her Official Capacity;
CHRIS L. HUBBARD, Individually and in His Official Capacity;
MARVIN MCCOY, Individually and in His Official Capacity;
JOHN OR JANE DOE NO. 1; JOHN OR JANE DOE NO. 2;
JOHN OR JANE DOE NO. 3; JOHN OR JANE DOE NO. 4;
JOHN OR JANE DOE NO. 5; JOHN OR JANE DOE NO. 6;
JOHN OR JANE DOE NO. 7; JOHN OR JANE DOE NO. 8;
JOHN OR JANE DOE NO. 9; JOHN OR JANE DOE NO. 10,

                                        Defendants-Appellees.


                Appeal from the United States District Court
                     for the Northern District of Texas
                             No. 3:08-CV-1076
   Case: 09-10832          Document: 00511060555          Page: 2   Date Filed: 03/24/2010

                                          No. 09-10832

Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Plaintiffs, appearing pro se, appeal the denial of their Federal Rule of Civil
Procedure 60(b) motion and the underlying dismissal, under Federal Rule of Civ-
il Procedure 12(b)(6), of their claims under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. § 1962; 42 U.S.C. § 1983; and Bivens,1
against the Federal Deposit Insurance Corporation (“FDIC”) and its various of-
ficers. We affirm.


                                                  I.
       Soon after plaintiffs opened MemphisFirst Community Bank in Memphis,
Tennessee, the FDIC began a series of annual audits. Plaintiffs claim that, in
the 2002, 2003, 2004, and 2005 audits, the FDIC made false findings of Regula-
tion O violations and generally harassed the bank. The mistreatment from the
FDIC, plaintiffs claim, culminated in threats in January 2006 to levy civil money
penalties, which had the effect of lowering the bank’s selling price.2 The FDIC
withdrew the threats in June 2006, after plaintiffs had retained counsel.
       Plaintiffs sued in 2008, alleging claims under RICO, § 1983, and Bivens.


       *
         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.
       1
           Bivens v. Six Unknown Named Agents of FBI, 403 U.S. 388 (1971).
       2
           As plaintiffs put it in their opening brief,

       [T]he true motive of why Appellants were subjected to this regulatory pretext
       became clear when the FDIC efforts culminated in the depression of the stock
       price of the financial institution leading to a transfer of ownership out of Afri-
       can-American hands to those of the majority population in blatant violation of
       the FDIC’s stated policy of assisting Minority Owned Banks and Financial Insti-
       tutions.

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                                  No. 09-10832

The defendants, FDIC and its named officers (“FDIC”), filed motions to dismiss
for lack of subject matter jurisdiction, improper venue, insufficient process, and
failure to state a claim. On February 2, 2009, the district court granted the mo-
tion to dismiss for failure to state a claim with respect to the RICO and § 1983
claims and dismissed sua sponte the Bivens claim as untimely. Soon thereafter,
on February 11, plaintiffs filed a 60(b) motion to reopen the case. The court de-
nied the motion on June 22, and on August 21, plaintiffs appealed.


                                        II.
      We first identify what it is that plaintiffs are appealing. They filed their
rule 60(b) motion within 28 days of judgment. See F ED. R. A PP. P. 4(a)(4)(A)(vi).
And they filed their appeal of the denial of that motion within 60 days of the de-
nial. See F ED. R. A PP. P. 4(a)(1)(B), (4)(A). Thus, they could have timely ap-
pealed both the denial of the rule 60(b) motion and the underlying dismissal.
      Although the notice of appeal mentions only the denial of the rule 60(b)
motion, plaintiffs go on to argue the merits of the underlying claim in their
briefs. The FDIC urges us to construe the appeal narrowly, to encompass only
what is stated in the notice of appeal. We decline to do so, because that narrow
construction would be out of step with the flexible approach of Foman v. Davis,
371 U.S. 178 (1962), and Smith v. Barry, 502 U.S. 244 (1992), as applied in our
caselaw.
      Indeed, “[o]ur court has consistently taken a forgiving approach when con-
struing notices of appeal in order to avoid technical barriers to review.” Fiess v.
State Farm Lloyds, 392 F.3d 802, 806 (5th Cir. 2004). The touchstones are the
intent of the appellant and the prejudice to the appellee. Here, the intent of the
plaintiffs was most assuredly to appeal both the denial of the rule 60(b) motion
and the dismissal of the underlying lawsuit, which came earlier in time, and the
FDIC is not in any way prejudiced. Cf. New York Life Ins. Co. v. Deshotel, 142

                                        3
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                                    No. 09-10832

F.3d 873, 884 (5th Cir. 1998).
      After all, plaintiffs “included the . . . issue in [their] statement of the issues
presented for review.” United States v. Lopez-Escobar, 920 F.2d 1241, 1244 (5th
Cir. 1991). Thus, both sides “briefed . . . issues related to the underlying judg-
ment.” Id. (citing Foman, 371 U.S. at 178). Plaintiffs should have stated in the
notice of appeal that they appealed the adverse judgment in addition to the ad-
verse 60(b) ruling. See generally F ED. R. A PP. P. 3(c). But we conclude, on this
record, that the failure to do so does not prevent them from obtaining review of
those issues.


                                         III.
      Having jurisdiction to review the rule 12(b)(6) dismissal, we affirm, essen-
tially for the reasons given by the district court. We review de novo motions to
dismiss for failure to state a claim upon which relief can be granted. See LeClerc
v. Webb, 419 F.3d 405, 413 (5th Cir. 2005).
      As for the RICO claim, the complaint fails to elaborate how the alleged
misdeeds of the FDIC amounted to a violation of 18 U.S.C. § 1962(a), (b), (c), or
(d). See, e.g., Crowe v. Henry, 43 F.3d 198, 203 (5th Cir. 1995). The complaint
does not include the amount and kind of facts necessary “to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
      As for the § 1983 claim, it is well established that “federal officials, acting
under color of federal law rather than state law, are not subject to suit under
§ 1983.” Resident Council of Allen Parkway Village v. United States Dep’t of
Hous. & Urban Dev., 980 F.2d 1043, 1053 (5th Cir. 1993). And finally, as for the
Bivens claims, the district court was correct both in its conclusion that the limi-
tations period comes from state law, Brown v. Nationsbank Corp., 188 F.3d 579,
590 (5th Cir.1999) (noting that that is true of both § 1983 and Bivens claims);

                                          4
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and in its decision that the claim-accrual determination comes from federal law,
Piotrowski v. City of Houston, 237 F.3d 576 (5th Cir. 2001) (discussing in the con-
text of § 1983 claims). The final relevant injury occurred on or around January
2006, when plaintiffs learned of FDIC’s threats to levy civil fines.3 By not suing
until June 2008, plaintiffs ran afoul of the two-year statute of limitations. See
Cooper v. Brookshire, 70 F.3d 377, 380 n.20 (5th Cir. 1995).


                                              IV.
       “[T]he district court’s denial of relief [under rule 60(b)] will be set aside on
appeal only for an abuse of discretion.” Crutcher v. Aetna Life Ins. Co., 746 F.2d
1076, 1082 (5th Cir. 1984) (citation omitted). “It is not enough that the granting
of relief might have been permissible, or even warrantedSSdenial must have
been so unwarranted as to constitute an abuse of discretion.” Id. (citation omit-
ted). Plaintiffs fail to meet that high burden.
       In their motion, plaintiffs claimed they should be offered relief from the
final judgment on account of “excusable neglect,” F ED. R. C IV. P. 60(b)(1), or “any
other reason that justifies relief,” F ED. R. C IV. P. 60(b)(6), because their counsel
was seriously ill from December 2008 to February 2009 and thus unable to re-
spond to rule 12(b) motions filed on December 15 and 30, 2008. We need not de-
cide whether plaintiffs’ reason constitutes “excusable neglect” or fits within the


       3
        The district court determined, as a factual matter, that “the plaintiffs were aware of
the threats prior to June 25, 2006,” a date exactly two years before the plaintiffs sued. As the
court reasoned:

       While the exact date of receipt of the letters from the FDIC is not established
       in the complaint, there is no indication that the plaintiffs remained unaware of
       the threat for five months after the date on the letters. Banks retained counsel
       and sent a detailed response before the FDIC withdrew the threats on or about
       June 26, 2006. Thus, it is clear from the face of the complaint that the plaintiffs
       were aware of the threats prior to June 25, 2006.

We agree.

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rule 60(b)(6) catch-all, however, because the failure to respond to those earlier
motions is irrelevant to the court’s disposition of the case. The court never ruled
on the December 15 and 30 motions. Instead, it granted the FDIC’s motion to
dismiss that was filed in September 2009, well after the time of counsel’s incapa-
city. Indeed, to quote the district court, “The plaintiffs responded to that motion.
Thus, the plaintiffs had an opportunity to respondSSand did respondSSto the on-
ly motion to dismiss the court considered.” The court did not abuse its discretion
in so finding.


                                                V.
       Plaintiffs point to the fact that the relevant rule 12(b)(6) motion was filed
only on behalf of FDIC and its various officers in their official capacity. Thus,
plaintiffs claim, the court should have granted them a default judgment against
each of the officers in his individual capacity, given that he did not make an ap-
pearance.4 Plaintiffs misunderstand what a rule 12(b)(6) motion does: It focuses
on the claims, not the parties. See F ED. R. C IV. P. 12(b)(6). Here, the court de-
terminedSSrightlySSthat plaintiffs had failed to state a claim upon which relief
can be granted, without regard to whether those claims are stated against defen-
dants in their official or individual capacity. In the absence of a valid claim, the
court was in no position to enter a default judgment.
       AFFIRMED.




       4
         At any rate, it is inaccurate to say that the officers in their individual capacity did not
make an appearance. They contested service of process and filed motions to dismiss earlier
in the case.

                                                 6
