Hamad v. Gary DeShazo & Assoc

UNITED STATES DISTRICT COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 95-50881
Summary Calendar

RIAD E. HAMAD,

Plaintiff-Appellant,

v.

GARY DeSHAZO and ASSOCIATES, et al.,

Defendants,

and

JAMES MACCORMACK; JOSEPH PARKER,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Texas
(A-95-CV-441)

August 14, 1996
Before WISDOM, KING, and SMITH, Circuit Judges

PER CURIAM*:

The plaintiff-appellant, Riad E. Hamad, initiated this action against the defendants-appellees,

State Bar of Texas General Counsel James McCormack, State Bar Chief of Litigation Joseph Parker,

and the two law firms of Gary DeShazo & Associates, and Friedman & Weddington. The law firm

of Friedman & Weddington once represented Hamad in a dispute with Hamad’s business partner,

*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
who was represented by the law firm of DeShazo & Associates. As a result of that dispute, a

judgment of fraud was entered against Hamad.

In response to the judgment, Hamad filed a lawsuit in Texas state court against the two law

firms, alleging negligence and a conspiracy to deprive Hamad of documents produced in the previous

litigation. That litigation resulted in summary judgment against Hamad. Hamad then pursued

numerous State Bar grievances against the law firms, all of which were denied after investigation

revealed no misconduct on the part of the firms.

Consequently, Hamad filed a second state court action against the two law firms, this time

adding the State Bar of Texas as a defendant. One piece of the summary judgement evidence in this

case was Hamad’s tax returns, which DeShazo had obtained from the Internal Revenue Service using

a form signed by Hamad in 1988. Hamad moved to suppress this evidence as fraudulently obtained.

The state court denied the motion to suppress and granted summary judgment against Hamad.

Hamad then filed the instant suit, alleging violations of his civil rights under 42 U.S.C. §§

1981, 1983, 1985 and 1986 (“the Civil Rights Act of 1964); 26 U.S.C. §§ 7213 and 7431(a)(2)

(regarding the unauthorized disclosure of tax returns); and 5 U.S.C. § 552(a) (“the Privacy Act”).

Defendants McCormack and Parker moved for dismissal of the suit on the grounds that they were

immune from suit pursuant to Eleventh Amendment immunity and because Hamad’s claim failed to

state a claim upon which relief could be granted. After consideration of a magistrate judge’s report

and recommendations, the district court granted the motion to dismiss. Hamad filed a timely notice

of appeal.

This court reviews de novo a district court’s ruling on a motion to dismiss.1 We look only

1
Jackson v. City of Beaumont Police Dep’t, 958 F.2d 616, 618 (5th Cir. 1992).

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at the pleadings, accept all well-pleaded facts as true, and view the facts “in the light most favorable

to the plaintiff”2.

We first address Hamad’s 42 U.S.C. §1983 claim. Hamad seeks monetary damages under

this section from McCormack and Parker in both their individual and official capacities as counsel for

the State Bar of Texas. The State Bar of Texas is a state agency.3 An action for damages against

state employees acting in their official capacity is barred by the Eleventh Amendment.4 The district

court correctly dismissed this potion of Hamad’s §1983 claim on this ground.

The district court also correctly dismissed Hamad’s suit against McCormack and Parker in

their individual capacities. An individual sued in his personal capacity cannot be held liable under

§1983 unless he was either personally involved in t he acts causing deprivation of a constitutional

right, or a causal connection exits between the act and the alleged constitutional violation.5 Hamad

fails to allege that McCormack and Parker were perso nally involved or causally connected to any

deprivation of a constitutional right. Instead, he offers only conclusory allegations that McCormack

and Parker engaged in a conspiracy, and “assisted, counseled, supported and covered up” DeShazo’s

alleged unauthorized acquisition of Hamad’s tax returns. Such conclusional allegations, absent

reference to material facts, cannot state a claim of federal conspiracy under §1983.6 Therefore,

Hamad’s §1983 action against the appellees in their individual capacities must fail.

2
Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert. denied, 115 S. Ct. 189 (1994).
3
Bishop v. State Bar of Texas, 791 F.2d 435, 437-38 (5th Cir. 1986).
4
Id.; Green v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir. 1994).
5
Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990).
6
Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986).

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 We next address Hamad’s 42 U.S.C. §§ 1981, 1985 and 1986 causes of action. Although

Hamad filed suit under §§ 1981 and 1985, he did not challenge the district court’s dismissal of these

causes of action in his appellate brief. Hamad has therefore abandoned these issues.7 Because Hamad

has abandoned his § 1985 claim, he has by necessity also abandoned his claim under 42 U.S.C. §1986,

as liability under §1986 is dependant on a finding of a §1985 violation.8

Next, we examine Hamad’s cause of action under 26 U.S.C. § 7431(a)(2). The district court

denied this claim on the grounds that § 7431(a)(2) does not confer a cause of action against a state

agency or its officials. The district court also found that the statute prohibits disclosure of federal

tax return information, not the receipt, obtaining, or use of return information. Hamad has provided

no facts or argument that these conclusions are erroneous, but again offers only the same conclusory

allegat ions that the appellees “assisted, counseled, supported and covered up” DeShazo’s alleged

illegal acquisition and disclosure of Hamad’s tax return information. Failure to identify error in the

district court’s analysis or application to the facts is the same as if the appellant has not appealed.9

Therefore, Hamad has effectively abandoned his claim on this point.

We also find that the district court correctly dismissed Hamad’s claim under 26 U.S.C. § 7213
10
as that statute is criminal in nature, and cannot be used as t he basis of a civil action. Similarly,

Hamad’s action under the Privacy Act fails because that statute applies only to agencies of the federal

7
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
8
42 U.S.C. § 1986; McCalden v. California Library Ass’n, 955 F.2d 1214, 1223 (9th
Cir. 1990), cert. denied, 504 U.S. 957 (1992).
9
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
10
26 U.S.C. §§ 7213(d)(1) and 7216.

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government, and not to state employees, as in the present case.

Finally, we note that Hamad has offered two new theories of recovery for the first time on

appeal. He alleges that McCormack and Parker violated 26 U.S.C. §§ 610311 and 7206.12 We

decline to address these arguments on appeal, as they were not presented to the district court for

consideration.13

In conclusion, we find no error in the district court’s analysis of this case, and AFFIRM the

dismissal of Hamad’s suit.

11
26 U.S.C. § 6103 prohibits the disclosure of tax returns or tax return information by
a state or federal officer or employee.
12
26 U.S.C. § 7206 is a criminal statute prohibiting fraud false statements in connection
with filing a tax return.
13
Kelly v. Foti, 77 F.3d 819, 822 (5th Cir. 1996).

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