Case: 10-30032 Document: 00511216173 Page: 1 Date Filed: 08/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2010
No. 10-30032
Summary Calendar Lyle W. Cayce
Clerk
ANTOINETTE ANDERSON,
Plaintiff-Appellant
v.
LAW FIRM OF SHORTY, DOOLEY & HALL; MICHAEL J. HALL, In his
capacity as staff attorney for the Law Firm of Shorty, Dooley & Hall; ENTERGY
CORPORATION; LEILA D’AQUIN, In her capacity as staff of Entergy
Corporation; PAUL A. CASTANON, In his capacity as Assistant Secretary for
Entergy Services, Incorporated, a subsidiary of Entergy Corporation; NEW
ORLEANS CITY; DEREK MERCADEL, In his capacity as staff attorney for City
of New Orleans; ANTOINE P. TURNER, In his personal capacity; ALLSTATE
INSURANCE COMPANY; JAMES A. STAPP, In his capacity as staff attorney
for Law Offices of Harold G. Toscano; LAW OFFICES OF HAROLD G.
TOSCANO; MARCUS V. BROWN, In his capacity as staff attorney for Entergy
Corporation, mistakenly named Marcus D. Brown,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-4160
Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-30032 Document: 00511216173 Page: 2 Date Filed: 08/26/2010
No. 10-30032
Antoinette Anderson, proceeding pro se, appeals the dismissal of her
claims under 42 U.S.C. §§ 1983 and 1985, and Louisiana law. Defendants were
participants in Anderson’s state court personal injury action, which sought
damages for injuries allegedly suffered in an automobile accident in New
Orleans.
Anderson asserts that the district court erred in refusing to allow her to
amend her complaint to add claims against state-court Judges Reese and Cates,
who allegedly made rulings adverse to Anderson. Although judicial immunity
does not bar claims for injunctive or declaratory relief in civil rights actions, see
Holloway v. Walker, 765 F.2d 517, 525 (5th Cir. 1985), Anderson could not obtain
the desired injunctive relief for either Judge, because federal courts have no
authority to direct state courts or their judicial officers in the performance of
their duties. See Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275,
1276 (5th Cir. 1973). Because amendment of the complaint would have been
futile, there was no reversible error. See Avatar Exploration, Inc. v. Chevron,
U.S.A., Inc., 933 F.2d 314, 321 (5th Cir. 1991).
Next, Anderson contends that the district court erred in dismissing,
pursuant to Federal Rule of Civil Procedure 12(b)(6) (failure to state a claim),
her § 1983 civil-rights claims against the Shorty, Dooley & Hall law firm,
Michael J. Hall (an attorney with that firm), Allstate Insurance Company,
Antoine P. Turner (Allstate’s insured), the Law Offices of Harold G. Toscano and
James A. Stapp (attorneys who represented Allstate), Entergy Corporation, Paul
A. Castanon (an Assistant Secretary for Entergy Services, Inc., a subsidiary of
Entergy) and Leila D’Aquin and Marcus V. Brown (attorneys who represented
Entergy). Anderson contends that these defendants were involved in a
conspiracy with Judges Reese and Cates to prevent her from obtaining relief in
her state court action.
We review a Rule 12(b)(6) dismissal de novo, “accepting all well-pleaded
facts as true and viewing those facts in the light most favorable to the plaintiffs”.
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Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (quoting
Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
To state a claim pursuant to § 1983, a plaintiff must claim a violation of
a right secured by the Constitution or laws of the United States and demonstrate
that the averred deprivation was committed by a person acting under color of
state law. E.g., Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997).
“Plaintiffs who assert conspiracy claims under civil rights statutes must plead
the operative facts upon which their claim is based. Bald allegations that a
conspiracy existed are insufficient.” Lynch v. Cannatella, 810 F.2d 1363,
1369-70 (5th Cir. 1987) (footnote omitted).
Anderson has not shown error in the district court’s Rule 12(b)(6)
dismissal of her § 1983 conspiracy claims against the defendants listed above.
Her complaint merely makes conclusory allegations of a conspiracy involving the
various defendants listed above, and those allegations are insufficient “to raise
a right to relief above the speculative level”. Twombly, 550 U.S. at 555.
Anderson also fails to demonstrate in her pleadings that the defendants who are
private actors were acting under color of state law. See Randolph, 130 F.3d at
730.
Further, to the extent that Anderson’s complaint sets forth a constitutional
claim against the City of New Orleans (a defendant in the state court action) and
Derek Mercadel (the city’s counsel in that action) that was not coextensive with
her inadequately pleaded conspiracy claim, Anderson has abandoned any such
claim by failing to raise it in her opening brief and by failing to challenge the
district court’s reasons for dismissing such claims. See Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993); see also Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
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Anderson contends that she stated a claim under § 1985(3). Section
1985(3), however, applies only to claims of racial or other class-based
discrimination. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Anderson’s
complaint made no allegation that the defendants had discriminated against her
on such grounds. Accordingly, Anderson’s complaint did not state a claim under
§ 1985(3), and there was no error in the district court’s dismissal of such claims.
See Griffin, 403 U.S. at 102.
Because all of Anderson’s federal claims were properly dismissed, the
district court did not err in declining to exercise supplemental jurisdiction over
Anderson’s state law claims. See Batiste v. Island Records, Inc., 179 F.3d 217,
226-27 (5th Cir. 1999); 28 U.S.C. § 1367(c)(3). The district court complied with
applicable precedent by dismissing Anderson’s state law claims without
prejudice. See Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999).
Anderson asserts that the district court erred by dismissing her claims
against the City Of New Orleans and Mercadel without providing notice.
Generally it is improper for a district court to dismiss a pro se complaint without
affording the plaintiff the opportunity to amend, Bazrowx v. Scott, 136 F.3d
1053, 1054 (5th Cir. 1998); but, after reviewing the record, including Anderson’s
filings in opposition to the motions to dismiss filed by other defendants, we are
convinced that Anderson had pleaded her best case. Accordingly, there was no
reversible error. See id. at 1054; Jacquez v. Procunier, 801 F.2d 789, 793 (5th
Cir. 1986).
Finally, Anderson contends that the district court violated Federal Rule
of Civil Procedure 38 and abridged her rights under the Seventh Amendment by
dismissing her claims without a jury trial. Because a jury, as a trier of fact, has
no role with respect to dismissals for failure to state a claim, the district court
did not violate the above provisions. See Barrett v. Indep. Order of Foresters, 625
F.2d 73, 75 (5th Cir. 1980).
AFFIRMED.
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