Opinion
No. 3:00-CV-2537-R
January 19, 2001
MEMORANDUM OPINION
Now before this Court are three separate Motions to Dismiss and one Motion for Order Determining Plaintiff a Vexatious Litigant in the above-encaptioned case. The Motions to Dismiss on behalf of Defendants Tooley, Voss, and Goodwin, and Defendants Pope, Ward, Rosen, Wahl, Perry, McAllister, McClure and Chambliss ("Mesquite Defendants") were filed on November 17, 2000. The third Motion to Dismiss and the Motion for Order Determining Plaintiff a Vexatious Litigant were filed by Defendants Alvarado, Hirsch, and Hinton ("Garland Defendants") on November 28, 2000.
For the reasons stated below, the Motions are GRANTED and this case is DISMISSED WITH PREJUDICE. Additionally, Mr. Fox is ordered to obtain the permission of the court before filing any future litigation in the Northern District of Texas.
BACKGROUND
On October 20, 2000, Pro Se Plaintiff, Robert James Fox, commenced an action in the 162nd Judicial District of Court of Dallas County, Texas, alleging violations of 18 U.S.C. § 1962 (RICO)'and the Texas Constitution, Article I, § 13, by the above-named defendants. Defendants Tooley, Voss, and Goodwin removed the case to this Court on November 17, 2000. Within one week, the motions now before this Court were filed. Mr. Fox has not responded to any of the pending motions.
Because the Original and Amended Complaints in this action are comprised primarily of a "morass of double meanings, biblical references and citations to various irrelevant statutes and case holdings," (Mesquite Defendants' Motion to Dismiss at 2) it was difficult for this Court to ascertain the chain of events that led to this lawsuit. Evidently, Plaintiff was arrested and imprisoned by some of the Mesquite defendants in October 1998, and again in January 1999. Both events stemmed from the Plaintiffs display of a false license plate. It appears that the Plaintiff was ultimately convicted of a Class B Misdemeanor and served additional jail time for that offense.
Plaintiff was also arrested and imprisoned by one of the Garland defendants in February 1998 and again in October 1999. In connection with these arrests, one of the Garland Defendants, Judge Hirsch, attempted to obtain a guilty plea from the Plaintiff. In connection with what appears to be a separate case in Johnson County, Defendants Tooley, Voss, and Goodwin attempted to collect a debt from the Plaintiff; a debt that the Plaintiff deemed to be "unlawful."
The above-stated facts are contained in a complaint of more than 30 pages in length, accompanied by such colorful phrases as:
At various times when I filed lawsuits regarding the nefarious conduct pettifogger shysters for filthy lucre falsified the record in furtherance of the fraud thereby acting in collusion with the imposters and tortfeasors in the RICO enterprise.
Plaintiffs Second Amended Complaint at ¶ 36;
I cannot lawfully be compelled by force of arms to participate in murder by contributing the funding in order to provide military equipment to murder children at Waco, Texas or anywhere else; indeed, not even the so-called entertainment executions which the State arranges through public defenders asleep at trial.
Plaintiffs Second Amended Complaint at ¶ 28; and
Pursuant to the maxim of law `Laesione fidel suits pro' spiritual non-corporeal hereditaments cannot extend into equity since equity has not conscience, only the merchants scales and a false god, who being blind is unable to find justice anywhere.
Plaintiffs Second Amended Complaint at ¶ 59.
According to the Plaintiff, the above allegations amount to a pattern of racketeering in violation of the Civil Rico statute, 18 U.S.C. § 1962, and violations of Article I, § 13 of the Texas Constitution.
DISCUSSION
I Motions to Dismiss for Failure to State a Claim
Although each Motion to Dismiss asserts more than one ground for dismissal, every motion relies on Federal Rule of Civil Procedure 12 (b)(6) in arguing that the Plaintiff has failed to state a claim upon which relief can be granted. Because it is eminently clear that this case should be dismissed as to all of the defendants on that ground, this Court will not consider the other possible avenues for dismissal.
A 18 U.S.C. § 1962, Civil RICO
RICO provides a private civil action to recover treble damages for injury suffered as a result of a violation of its substantive provisions. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 481 (1985). To state a civil RICO claim under § 1962, a plaintiff must allege: (1) the conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering activity. See Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989) (citing, Sedima, 473 U.S. at 496). First, however, a plaintiff must establish that he has standing to sue. See Price v. Pinnacle Brands, Inc., 138 F.3d 602, 606 (5th Cir. 1998). To achieve standing a RICO Plaintiff must allege facts demonstrating that he has suffered a tangible financial loss, "by reason of," the defendants' substantive RICO violations. Id. (citing, In re Taxable Mun. Bond Sec. Litig. v. Kutak, 51 F.3d 518, 521 (5th Cir. 1995) (quoting, 18 U.S.C. § 1964 (c)).
Plaintiff has failed to allege facts sufficient to surpass either of RICO's hurdles for a 12(b)(6) motion. First, Plaintiffs Complaint is almost entirely conclusory in its allegations and "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Second, there are many elements of RICO's standing and substantive requirements that are clearly absent from the Complaint. For example, the Plaintiff has not alleged any financial loss. Nor has he shown that any violation of RICO has occurred, let alone by the named Defendants.
Therefore, the Plaintiff has failed to state a claim upon which relief can be granted for violations of RICO and his RICO claims are hereby dismissed.
B Article I, § 13 of the Texas Constitution
Art 1, § 13 states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."
The Texas Supreme Court has held that there is no private right of action for damages for violations of the Texas Constitution. See City of Beaumont v. Boullion, 896 S.W.2d 143, 148-49 (Tex. 1995) ("Our review of the language of the Constitution leads us to conclude that there is no basis from the text of the Constitution to assume a party is given more than equitable protection;" "[t]here is no state `constitutional tort.'") (quoting, Bagg v. Univ. of Texas Medical Branch, 726 S.W.2d 582 (Tex.App. 1987)). As a matter of law, Plaintiff cannot assert a claim for damages under this provision of the Texas Constitution and thus these claims are also dismissed.
II Motion for Order Determining Plaintiff a Vexatious Litigant
The Garland Defendants have also filed a Motion for Order Determining Plaintiff a Vexatious Litigant pursuant to Texas Civil Practice and Remedies Code section 11.053(1). Although this Texas law does not directly conflict with any Federal Rule of Civil Procedure, its substance is subsumed by Rule 11, which permits the imposition of sanctions by a federal court for the very behavior of which the Defendants complain. Fed Rule Civ Pro 11(c). Therefore, this Court will treat the Vexatious Litigant Motion as a Motion for Sanctions pursuant to Rule 11.
The Garland Defendants have presented evidence of a pattern of frivolous lawsuits brought by the Plaintiff against various cities, public officials, United States Attorneys and United States District Judges during the past seven years. Specifically, the Plaintiff has filed seven separate lawsuits, all of which were disposed of in a manner adverse to the Plaintiff. Moreover, as the discussion above reveals, Plaintiffs present suit is also entirely without merit. This court is of the opinion that these lawsuits have been brought to harass the various parties involved and to assert frivolous arguments for the modification of existing law; behavior that is expressly prohibited by Rule 11. Thus, sanctions are appropriate in this case.
The Defendants have requested, pursuant to the relief provided for in the Texas Civil Practice and Remedies Code, that the Plaintiff be required to furnish security for this suit, that the Court prohibit the Plaintiff from filing a new litigation in a court in this district without prior permission, and that a judgement be entered that Plaintiff take nothing by reason of this suit. As for the first and third requests, this Opinion disposes of the current case, and neither security, nor a take nothing judgement are necessary. However, requiring the Plaintiff to obtain permission to file future lawsuits in this district is a reasonable sanction based on the Plaintiffs behavior.
Rule 11(c)(1)(2) states: "A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated." It appears that the only way to deter the future filing of frivolous lawsuits by the Plaintiff, and others similarly situated, is to require the court's permission prior to such future filings. Moreover, the Fifth Circuit has held that such a sanction is appropriate where plaintiffs are "abusing the judicial process by such filings and [are] delaying the consideration of meritorious claims." Murphy v. J.A. Collins, 26 F.3d 541, 544 (5th Cir. 1994); see also, Balawadjer v. Scott, 160 F.3d 1066, 1067 (5th Cir. 1999).
Therefore, pursuant to this Court's powers under Rule 11, the Plaintiff is hereby ordered to obtain the court's permission before filing any future litigation in the Northern District of Texas.
It should be noted that this order may also be enforced by courts in other federal districts, at least within the Fifth Circuit. See Balawadjer, 106 F.3d at 1067.