[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 4, 2007
No. 06-15181 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00542-CV-WSD-1
JOSEPH C. SUN,
Plaintiff-Appellant,
versus
STEVEN GIRARDOT,
MARY GIRARDOT,
COSTA LANIER HOMEOWNERS ASSOCIATION,
MARK A. BAKER,
SEAN MCILHINNEY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 4, 2007)
Before BIRCH, BLACK and WILSON, Circuit Judges.
PER CURIAM:
Joseph C. Sun (“Sun”), proceeding pro se, appeals the district court’s grant
of summary judgment in favor of Steven and Mary Girardot (“the Girardots”),
Costa Lanier Homeowners Association (“CLHA”), and Sean McIlhinney
(“McIlhinney”) (collectively “Defendants”).1 Sun filed suit against Defendants
under 42 U.S.C. § 1983 (“§ 1983") and the Racketeering Influence and Corrupt
Organization Act, 18 U.S.C. § 1962, Ga. Code Ann. § 16-14-4 (“RICO”).
On appeal, Sun first argues that the state court contempt order entered
against him without his knowledge constitutes a recorded agreement between the
Girardots, McIlhinney, and Judge John Ott (“Judge Ott”) of the Superior Court of
Newton County, thereby establishing a conspiracy between private citizens and a
state actor to violate his due process rights. Second, Sun argues that Defendants
engaged in a pattern of racketeering via the creation of CHLA in order to illegally
obtain a parcel of land.
I. Standard of Review
We review the district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Patrick
v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Rule 56(c) states that
summary judgment is appropriate “if the pleadings, depositions, answers to
1
We do not discuss defendant Mark A. Baker because the district court granted Baker’s
motion to dismiss and Sun did not appeal that order.
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interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c). If the plaintiff’s
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted in favor of the defendant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d. 202 (1986).
II. Discussion
A. Section 1983 Claim
Sun argues that Defendants conspired with Judge Ott to deprive him of his
due process rights in violation of § 1983. It is well settled that § 1983, by itself,
does not create any substantive rights, but merely provides “a method for
vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386,
393-94, 109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989). Therefore, to prevail in
a § 1983 action, the plaintiff must show that he was deprived of a federal right by a
person acting under the color of state law. Griffin v. City of Opa-Locka, 261 F.3d
1295, 1303 (11th Cir. 2001).
A § 1983 action alleging a denial of procedural due process rights, requires
proof of the following three elements: (1) deprivation of a constitutionally-
protected liberty or property interest; (2) state action; and (3) constitutionally-
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inadequate process. Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir. 2006)
(citation omitted). “[P]rivate defendants can be held liable in a § 1983 action if
they act in concert with the state officials in depriving a plaintiff of constitutional
rights.” Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990). The plaintiff
must present evidence that the defendants reached an understanding to violate his
rights. Rowe v. City of Ft. Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002). The
plaintiff must plead in detail, “through reference to material facts,” the nature of
the relationship between the state actor and the private citizens. Harvey v. Harvey,
949 F.2d 1127, 1133 (11th Cir. 1992).
In this case, Sun has provided no evidence that Defendants were involved in
a conspiracy or agreement with Judge Ott so as to convert their alleged conduct
into state action subject to § 1983 liability. All three individual defendants
explicitly denied having an out-of-court relationship, much less a conspiratorial
relationship, with Judge Ott. Sun’s response throughout the litigation was to allege
simply that Defendants conspired with the judge, while relying solely on the
contempt order as his evidence. He failed to plead in detail the nature of the
alleged relationship or agreement between Defendants and Judge Ott. To survive
summary judgment, Sun must offer more than allegations. This court has
consistently held that conclusory allegations without specific supporting facts have
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no probative value, and are legally insufficient to defeat summary judgment. See
Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000); Sammons v.
Taylor, 967 F.2d 1533, 1544-45 & n.5 (11th Cir.1992). Rather than offering
evidence to support his conspiracy contention, most of Sun’s pleadings merely
argue that Judge Ott’s rulings were incorrect. Sun’s allegations cannot overcome
Defendants’ evidence that denied any conspiratorial relationship, and, thus, the
district court properly granted summary judgment on Sun’s § 1983 claim.
B. RICO Claim
Next, Sun argues that Defendants engaged in a pattern of racketeering
activity by committing acts of fraud and perjury in a 1998 state civil suit, primarily
via the creation of a phony homeowners association designed to illegally obtain a
parcel of land. Sun argues that the district court’s grant of summary judgment
should be reversed because the court based its decision solely on acts committed
by Defendants with respect to the contempt hearing. Sun argues that he should be
allowed to litigate all of the actions taken by Defendants, including activities in the
original state civil suit.
The federal RICO act states that “[i]t shall be unlawful for any person
employed by or associated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or participate, directly or
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indirectly, in the conduct of such enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). The
Georgia RICO statute is similar and is modeled after the federal act. See Ga. Code
Ann. § 16-14-4(a). To succeed on a RICO claim, the plaintiff must show: (1) the
existence of an enterprise; (2) that the enterprise affected interstate commerce; (3)
that the defendant was employed by or associated with the enterprise; (4) the
defendant participated, directly or indirectly, in the conduct of the enterprise’s
affairs; and (5) that the defendant participated through a pattern of racketeering
activity. United States v. Starret, 55 F.3d 1525, 1541 (11th Cir. 1995). A pattern
of racketeering activity requires at least two acts of racketeering activity. 18
U.S.C. § 1961(5). Racketeering is defined as “any act or threat involving murder,
kidnapping, gambling, arson, robbery, bribery,” etc. Id. § 1961(1).
An enterprise includes any “individual, partnership, corporation, association,
or other legal entity, and any union or group of individuals associated in fact
although not a legal entity.” Id. § 1961(4). “[T]he definitive factor in determining
the existence of a RICO enterprise is the existence of an association of individual
entities, however loose or informal, that furnishes a vehicle for the commission of
two or more predicates crimes, that is, the pattern of racketeering activity requisite
to the RICO violation.” United States v. Goldin Indus., Inc., 219 F.3d 1271, 1275
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(11th Cir. 2000).
On appeal, Sun does not focus on his substantive RICO claim as decided by
the district court, but rather challenges an earlier district court order indicating that
Sun did not have standing to allege RICO violations with respect to any conduct
during the original state civil action, as he was not a party to that action. However,
even if we consider a broader range of Defendants’ conduct including the 1998
civil suit, Sun’s argument does not go beyond mere accusations unsupported by
evidence. Sun frequently challenges the validity of CLHA, arguing that it was set
up solely to defraud him. However, he points to no evidence that an enterprise
existed for the purposes of RICO, as CLHA was not a vehicle for any crime. In
fact, Sun’s own evidence indicates that CLHA was organized for a proper purpose
and included other residents of the Costa Lanier subdivision. Much like his § 1983
claim, Sun only offers conclusory allegations with no evidence with respect to his
RICO claim. Conclusory allegations with no evidence cannot defeat a motion for
summary judgment. See Leigh, 212 F.3d at 1217. Accordingly, the district court
properly granted Defendants’ motion for summary judgment.
AFFIRMED.
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