UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1638
ISIDORO RODRIGUEZ,
Plaintiff - Appellant,
v.
JANE DOE, Member of the Virginia State Bar Disciplinary
Board ("Board"), sued as individual of an unauthorized
entity; JOHN DOE, Member of the Virginia State Bar
Disciplinary Board ("Board"), sued as individual of an
unauthorized entity; CYNTHIA D. KINSER, sued as individual;
DONALD W. LEMONS, sued as individual; S. BERNARD GOODWYN,
sued as individual; LEROY F. MILLETTE, JR., sued as
individual; WILLIAM C. MIMS, sued as individual; ELIZABETH
A. MCCLANAHAN, sued as individual; CLEO E. POWELL, sued as
individual; CHARLES S. RUSSELL, sued as individual;
ELIZABETH B. LACY, sued as individual; LAWRENCE L. KOONTZ,
sued as individual; JANE DOE, Officer of the Virginia State
Bar, sued as individual; JOHN DOE, Officer of the Virginia
State Bar, sued as individual; KENNETH T. CUCCINELLI, II,
sued as individual; CATHERINE CROOKS HILL, sued as
individual; JANE DOE, Officer/Member of the Virginia
Employment Commission, sued as individual; JOHN DOE,
Officer/Member of the Virginia Employment Commission, sued
as individual; JOHN G. ROBERTS, Justice of the United States
Supreme Court; WILLIAM K. SUTER, Justice of the United
States Supreme Court; MEMBERS OF THE U.S. COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT, sued as individuals;
MEMBERS OF THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT,
sued as individuals; MEMBERS OF THE U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT, sued as individuals; MEMBERS OF THE
U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT, sued as
individuals; MEMBERS OF THE U.S. COURT OF APPEALS FOR THE
FEDERAL CIRCUIT, sued as individuals; MEMBERS OF THE
DISTRICT OF COLUMBIA COURT OF APPEAL AND COMMITTEE ON
ADMISSIONS, sued as individuals; LEONIE M. BRINKEMA, sued in
her individual capacity; RICHARD W. ROBERTS, sued in
individual capacity; PAUL L. FRIEDMAN, sued in individual
capacity; JAMES E. BOASBERG, sued in individual capacity;
JOHN O. COLVIN, sued in individual capacity; L. PAIGE
MARVEL, sued in individual capacity; RICHARD T. MORRISON,
sued in individual capacity; LAURENCE J. WHALEN, sued in his
individual capacity; DOUGLAS SHULMAN, sued in his individual
capacity; ERIC HOLDER, sued in individual capacity; RICHARD
A. SCHWARTZ, sued in his individual capacity; OFFICE OF THE
ASSISTANT U.S. ATTORNEY, EASTERN DISTRICT OF VIRGINIA, sued
in individual capacity; OFFICE OF THE ASSISTANT U.S.
ATTORNEY FOR D.C., sued in individual capacity; OFFICE OF
THE ASSISTANT U.S. ATTORNEY FOR THE EASTERN DISTRICT OF
PENNSYLVANIA, sued in individual capacity; OFFICE OF THE
ASSISTANT U.S. ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW
YORK, sued in individual capacity; JAMES LEROY BANKS, sued
as individual; WILLIAM ETHAN GLOVER, sued as individual;
STEPHEN A. WANNALL, sued as individual; GLENN M. HODGE, sued
as individual; WILLIAM CARLYLE BOYCE, JR., sued as
individual; JACK HARBESTON, sued individually and as alter
ego HFP, Inc., IOTA Partners, and Sea Search Armada LLC
(DE); JANE/JOHN DOES, AND DOE ENTITIES; UNITED STATES OF
AMERICA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cv-00663-JAG)
Submitted: November 22, 2013 Decided: December 11, 2013
Before Ed CARNES, Chief Judge of the United States Court of
Appeals for the Eleventh Circuit, sitting by designation, and
William H. PRYOR, Jr., Circuit Judge of the United States Court
of Appeals for the Eleventh Circuit, sitting by designation, and
Joel F. DUBINA, Circuit Judge of the United States Court of
Appeals for the Eleventh Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
Isidoro Rodriguez, Appellant Pro Se. Farnaz Farkish, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
2
Commonwealth Appellees. Jonathan Holland Hambrick, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for the United States. James S. DelSordo,
ARGUS LEGAL, LLC, Manassas, Virginia, for Appellee Jack
Harbeston.
Unpublished opinions are not binding precedent in this circuit.
3
PER CURIAM:
Appellant Isidoro Rodriguez, a disbarred attorney
proceeding pro se, appeals the district court’s dismissal of his
claims alleging treason, Va. Code Ann. §§ 18.2-481(5), 18.2-482;
Racketeering Influenced and Corruption Organization Acts
(“RICO”) violations, 18 U.S.C. § 1962(c) and Va. Code Ann.
§ 18.2-514; and a business conspiracy, Va. Code Ann. § 18.2-499;
and seeking a writ quo warranto for misuse of office, Va. Code
Ann. § 8.01-636. 1 On appeal, Rodriguez argues that the district
court’s dismissal of his complaint with prejudice—on the grounds
that his claims were barred by res judicata, the Rooker-Feldman 2
doctrine, judicial immunity, and failure to state a claim—was
erroneous. Rodriguez also challenges the district court’s
imposition of sanctions after he filed his notice of appeal from
the district court’s dismissal of his complaint.
I.
We review dismissals for lack of subject matter
jurisdiction and failure to state a claim de novo. Cooksey v.
1
Rodriguez has abandoned any claim regarding a writ quo
warranto because he did not offer argument on the writ in his
initial brief. See Cavallo v. Star Enter., 100 F.3d 1150, 1152
n.2 (4th Cir. 1996).
2
Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S.Ct. 149
(1923); District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 103 S.Ct. 1303(1983).
4
Futrell, 721 F.3d 226, 234 (4th Cir. 2013) (subject matter
jurisdiction); Cavallo v. Star Enter., 100 F.3d 1150, 1153 (4th
Cir. 1996) (failure to state a claim).
Applying the doctrine of res judicata is proper where:
(1) a prior case resulted in a final judgment on the merits;
(2) there is “an identity of the cause of action in both the
earlier and the later suit”; and (3) there is “an identity of
parties or their privies in the two suits.” Clodfelter v.
Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (internal
quotation marks omitted). As to the second prong, we apply a
transactional approach, under which the first case will have a
preclusive effect if “the second suit arises out of the same
transaction or series of transactions as the claim resolved by
the prior judgment.” Id. (internal quotation marks omitted).
Thus, a “newly articulated claim” will be barred by res judicata
“if it is based on the same underlying transaction and could
have been brought in the earlier action.” Id.
We conclude from the record that the district court did not
err in dismissing on the basis of res judicata Rodriguez’s
current claims against defendants that he had previously sued.
In Rodriguez v. Editor in Chief, Legal Times, 285 F. App’x 756
(D.C. Circuit 2008), and Rodriguez v. Shulman, 844 F. Supp. 2d 1
(D.D.C. 2012), the Court of Appeals for the District of Columbia
Circuit and the U.S. District Court for the District of Columbia
5
issued final judgments on the merits of Rodriguez’s claims of
RICO violations and federal and state constitutional violations
for, among other reasons, claim and issue preclusion, judicial
immunity, and failure to state a claim. These prior cases and
Rodriguez’s current case arose out of the same series of
transactions—specifically, the alleged conspiracy to prevent
Rodriguez from practicing law. Although Rodriguez raises
several new claims in the instant case, these new claims are
barred by res judicata because they are based on the same
conspiracy that Rodriguez alleged in his previous actions, and
he could have brought the claims in those actions. See
Clodfelter, 720 F.3d at 210.
II.
Under the Rooker-Feldman doctrine, lower federal courts
lack subject matter jurisdiction to review state court
judgments. Adkins v. Rumsfeld, 464 F.3d 456, 463 (4th Cir.
2006). Thus, a lower federal court may not review a case where
the losing party from state court “complain[s] of injuries
caused by state-court judgments rendered before the district
court proceedings commenced and invit[es] district court review
and rejection of those judgments.” Id. (internal quotation
marks omitted). “In other words, the doctrine applies where a
party in effect seeks to take an appeal of an unfavorable state-
court decision to a lower federal court.” Id. at 464 (internal
6
quotation marks omitted) (explaining that “the test is not
whether the relief sought in the federal suit ‘would certainly
upset’ the enforcement of a state court decree, . . . but rather
whether the relief would ‘reverse or modify’ the state court
decree”).
Because Rodriguez seeks in this lawsuit, among other
relief, reinstatement to the bar and the payment of unemployment
benefits, we conclude that the district court did not err in
applying the Rooker-Feldman doctrine. That is, in seeking
reinstatement as an attorney, Rodriguez challenges the Supreme
Court of Virginia’s affirmance of his disbarment. In seeking
the payment of unemployment benefits, Rodriguez challenges the
affirmance by the Court of Appeals of Virginia of the lower
state court decision that he was disqualified from receiving
unemployment benefits. The Rooker-Feldman doctrine bars lower
federal courts from reviewing such state court decisions. See
Adkins, 464 F.3d at 463-64.
III.
“[J]udicial immunity is an immunity from suit, not just
from ultimate assessment of damages.” Mireles v. Waco, 502 U.S.
9, 11, 112 S.Ct. 286, 288(1991). Judicial immunity can be
overcome only where: (1) the judge engaged in nonjudicial
actions—that is, “actions not taken in the judge’s judicial
capacity”; or (2) there was a complete lack of jurisdiction.
7
Id. at 11-12, 112 S.Ct. at 288. Allegations of bad faith or
malice will not overcome judicial immunity. Id. at 11, 112
S.Ct. at 288. Where state supreme court justices hear an appeal
from a lower court’s disciplinary decision, they are performing
a “traditional adjudicative task.” Supreme Court of Va. v.
Consumers Union, Inc., 446 U.S. 719, 734, 100 S.Ct. 1967, 1976
(1980), superseded on other grounds by statute, Federal Courts
Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110
Stat. 3847 (1996).
We conclude from the record that the district court
correctly determined that the judicial defendants were entitled
to judicial immunity. The prior judicial decisions that
Rodriguez challenges in this case as part of a vast conspiracy
to deprive him of his rights were issued by the judges acting in
their judicial capacities. See Mireles, 502 U.S. at 11, 112
S.Ct. at 288; Consumers Union, Inc., 446 U.S. at 734, 100 S.Ct.
at 1976. Moreover, any argument that the judges acted with a
complete lack of jurisdiction is without merit. See Mireles,
502 U.S. at 11, 112 S.Ct. at 288.
IV.
In reviewing the dismissal of a complaint, we assume that
all well-pleaded facts are true and draw all reasonable
inferences in the plaintiff’s favor. Cooksey, 721 F.3d at 234.
“[C]ourts may consider relevant facts obtained from the public
8
record, so long as these facts are construed in the light most
favorable to the plaintiff along with the well-pleaded
allegations of the complaint.” Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013) (internal
quotation marks omitted).
“To survive a Rule 12(b)(6) motion to dismiss, a complaint
must establish facial plausibility by pleading factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 554
(internal quotation marks omitted). To resist dismissal, a
plaintiff must “nudge[] [his] claims across the line from
conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). The court need not
accept as true legal conclusions or “unwarranted inferences,
unreasonable conclusions, or arguments.” Simmons v. United
Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011)
(internal quotation marks omitted). To survive a motion to
dismiss, the complaint must include sufficient facts “to raise a
reasonable expectation that discovery will reveal evidence of
the alleged activity.” US Airline Pilots Ass’n v. Awappa, LLC,
615 F.3d 312, 317 (4th Cir. 2010) (internal quotation marks
omitted).
Under Virginia state law, it is a crime to commit treason,
which includes “[r]esisting the execution of the laws under
9
color of its authority.” Va. Code Ann. § 18.2-481(5).
Misprision of treason, which is also a crime, occurs when an
individual conceals the commission of treason. Id. § 18.2-482.
We have explained, in the context of a federal civil rights suit
involving a federal criminal statute, that, “[t]he Supreme Court
historically has been loath to infer a private right of action
from a bare criminal statute, because criminal statutes are
usually couched in terms that afford protection to the general
public instead of a discrete, well-defined group.” Doe v.
Broderick, 225 F.3d 440, 447-48 (4th Cir. 2000) (internal
quotation marks and citation omitted).
The federal RICO statute prohibits a person from conducting
an “enterprise’s affairs through a pattern of racketeering
activity or collection of unlawful debt.” 18 U.S.C. § 1962(c).
Similarly, the Virginia RICO statute prohibits a person from
participating in an “enterprise through racketeering activity.”
Va. Code Ann. § 18.2-514(c). As to the federal statute, a
plaintiff must allege at least two racketeering acts and “a
continuing pattern and a relationship among the defendant’s
activities showing they had the same or similar purposes.”
Anderson v. Found. for Advancement, Educ. & Emp’t of Am.
Indians, 155 F.3d 500, 505 (4th Cir. 1998). A plaintiff may
show continuity by showing that the racketeering acts were part
of the enterprise’s usual way of doing business. Id. As to the
10
pattern requirement, “[i]t is not the number of predicates but
the relationship that they bear to each other or to some
external organizing principle that renders them ordered or
arranged.” H. J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 238,
109 S.Ct. 2893, 2900 (1989). A plaintiff may establish the
relationship requirement “by showing that the criminal acts have
the same or similar purposes, victims, or methods of commission,
or are otherwise interrelated by distinguishing characteristics
and are not isolated events.” Id. at 240, 109 S.Ct. at 2893.
The Virginia business conspiracy statute prohibits two or
more persons from agreeing and mutually undertaking to
“willfully and maliciously injur[e] another in his reputation,
trade, business or profession by any means whatever.” Va. Code
Ann. § 18.2-499(A).
We conclude from the record that the district court
correctly found that Rodriguez failed to state claims upon which
relief may be granted as to his claims of treason, RICO
violations, and business conspiracy. First, because Rodriguez
has presented no argument as to why the court should infer a
private right of action from the treason and misprision of
treason criminal statutes, the district court correctly
determined that it was not plausible that the defendants would
be liable for treason or misprision of treason in this action.
See Clatterbuck, 708 F.3d at 554; Doe, 225 F.3d at 447-48.
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Next, as to Rodriguez’s RICO and business conspiracy
claims, his complaint does not establish plausibility. Rather,
his complaint indicates that the events in question began with
two separate and unrelated complaints to the state bar, which
ultimately led to Rodriguez’s disbarment in Virginia and other
courts, his loss of unemployment benefits, and several lawsuits.
Rodriguez’s assertion that the bar complaints arose from a
conspiracy between his former client and the U.S. Attorney
General is an “unreasonable conclusion[],” which we need not
accept. See Simmons, 634 F.3d at 768. As to the events that
followed the initial bar complaints, it is not plausible that
the individuals and courts who worked on these cases comprised
an enterprise or conspiracy that sought to victimize Rodriguez
and injure his profession. See Va. Code Ann. § 18.2-499(A);
Clatterbuck, 708 F.3d at 554. Nor has Rodriguez presented
“factual content” to support a finding that such an enterprise
or conspiracy existed. See Clatterbuck, 708 F.3d at 554.
Rather, the reasonable inference to draw from these facts and
from the decisions in Rodriguez’s prior cases—which we consider
as part of the public record—is that the individuals and courts
who worked on Rodriguez’s cases considered his claims and
determined that they were without merit for a variety of
reasons, including failure to state a claim, judicial immunity,
and claim and issue preclusion. See id. at 557; Editor in
12
Chief, Legal Times, 285 F. App’x at 759-60; Shulman, 844 F.
Supp. 2d at 7-12.
For all of the above reasons, we affirm the district
court’s dismissal of Rodriguez’s complaint.
V.
We review jurisdictional questions de novo and the issuance
of a pre-filing injunction for an abuse of discretion. Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir.
2013) (jurisdiction); Cromer v. Kraft Foods N. Am., Inc., 390
F.3d 812, 817 (4th Cir. 2004) (pre-filing injunction).
We have upheld the imposition of Rule 11 sanctions imposed
after the district court issued its final judgment and the
appellant filed a notice of appeal. Langham-Hill Petroleum Inc.
v. S. Fuels Co., 813 F.2d 1327, 1330-31 (4th Cir. 1987)
(upholding the imposition of attorney’s fees awarded under Rule
11 despite the appellant’s argument that the district court
lacked jurisdiction to impose sanctions after it filed a notice
of appeal).
It is the appellant’s duty to order transcripts relevant to
any findings or conclusions that he intends to challenge on
appeal. Fed.R.App.P. 10(b)(2); 4th Cir. R. 10(c)(1). An
appellant waives an issue if he fails to comply with Federal
Rule of Appellate Procedure 10(b)(2) and provide us with the
13
relevant transcripts. Keller v. Prince George’s Cnty., 827 F.2d
952, 954 n.1 (4th Cir. 1987).
“[F]ederal courts [have] the authority to limit access to
the courts by vexatious and repetitive litigants.” Cromer, 390
F.3d at 817. “Such a drastic remedy must be used sparingly,”
but may be appropriate in cases where a litigant abuses “the
judicial process by filing meritless and repetitive actions.”
Id. at 817-18 (quoting Brow v. Farrelly, 994 F.2d 1027, 1038 (3d
Cir. 1993)).
Rodriguez’s argument that the district court lacked
jurisdiction to impose sanctions after he filed his notice of
appeal is without merit. See Langham-Hill Petroleum Inc., 813
F.2d at 1330-31.
Furthermore, the district court has the ability to limit
access to the courts, and Rodriguez has waived any argument
regarding the merits of the pre-filing injunction because he
failed to provide the Court with the transcript of the sanctions
hearing. See Cromer, 390 F.3d at 817; Keller, 827 F.2d at 954
n.1. For the above-stated reasons, we affirm the district
14
court’s judgment of dismissal and the district court’s
imposition of sanctions. 3
AFFIRMED
3
We DENY as moot Rodriguez’s motion to disqualify and
recuse the judges of the Fourth Circuit and Chief Justice John
G. Roberts. We also DENY Rodriguez’s motion to strike the
federal defendants’ response brief, and DENY Rodriguez’s motion
for an injunction.
15