Case: 21-20451 Document: 00516415056 Page: 1 Date Filed: 08/01/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 1, 2022
No. 21-20451 Lyle W. Cayce
Clerk
John E. Hall,
Plaintiff—Appellant,
versus
City of Houston; Art Acevedo, Houston Police Chief; Kristie
L. Lewis, Police Attorney; Chairman Anthony Hall, Former City
Attorney; May Walker, Former Police Officer; Lee P. Brown, Former
Mayor; Michael Dirden, Former Executive Chief; Gayland
Malveaux; C. O. Bradford, Former Police Chief; J. Dotson,
Former Assistant Chief; Renita Ferguson,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
4:20-CV-3740
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
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Per Curiam:*
Pro Se Plaintiff-Appellant, a former police officer, John E. Hall
contends that this case arises from “a code of silence conspiracy that gives
privilege to law enforcement.” He further explains that the case is “about
defendants who were indifferen[t] to 4 million dollars of taxpayer[] money
being stolen in bogus overtime slips in 1994, the rights of a citizen to obtain
police department records to clear his reputation based on a domestic
violence entrapment case, and the illegal use of police resources in violation
of equal protection laws.” The district court granted several 12(b)(6)
motions to dismiss, culminating in a final dismissal for want of prosecution
of the remaining claims. Finding no error in the district court’s orders to
dismiss the case, we AFFIRM.
I. Standard of Review
We review a district court’s grant of a motion to dismiss de novo. 1 The
plaintiff must plead “enough facts to state a claim to relief that is plausible
on its face” to avoid dismissal.2 “[T]his court accepts all ‘well-pleaded facts
as true, viewing them in the light most favorable to the plaintiff.’” 3
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
1
Ferrer & Poirot, GP v. Cincinnati Ins. Co., 36 F.4th 656, 658 (5th Cir. 2022) (per
curiam).
2
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
3
Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam)).
2
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We construe the claims of a pro se litigant liberally, but “a pro se
litigant ‘must still brief the issues and reasonably comply with’ Rule 28 of the
Federal Rules of Appellate Procedure.”4 “[I]f a pro se plaintiff fails to argue
claims in the body of his brief, those claims are considered abandoned.”5
II. Waiver
Hall failed to mention Defendants-Appellees Art Acevedo, Kristie L.
Lewis, Anthony Hall, May Walker, Lee P. Brown, C.O. Bradford, or J.
Dotsen in his appellate brief. Hall has therefore waived any objection to their
dismissals. Hall also makes a litany of evidentiary objections but does not
provide record citations to explain which stricken exhibits he is referencing.
We cannot grant relief on the claims he raises without proper briefing.
III. Recusal
Hall contends that the district court judge erred when he did not
recuse himself under 28 U.S.C. § 455(a). Hall claims that the judge became
“complicit[] in fraud, misrepresentation, improper procedures, and
misconduct.”
The trial court explained that Hall believed “that the court did not
sufficiently question the City of Houston’s attorney but ‘interviewed’ him
for the City of Houston.” The court rejected this contention, explaining that
Hall “is confused about the burden of proof in civil cases. Hall — not the
City of Houston — must prove his case by a preponderance of the evidence.
The court questioned Hall to understand the facts and allegations, not
4
Fosu v. Garland, 36 F.4th 634, 639 (5th Cir. 2022) (per curiam) (quoting Rui Yang
v. Holder, 664 F.3d 580, 589 (5th Cir. 2011)).
5
Davis v. Lumpkin, 35 F.4th 958, 962 n.1 (5th Cir. 2022) (citing Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993)).
3
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because it is biased against him. Over more than an hour, Hall was allowed to
explain his facts on his theories to an attentive court.”
Any “judge . . . of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” 6 A
judge “shall also disqualify himself . . . [w]here he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding.”7 We consider “whether a reasonable and
objective person, knowing all of the facts, would harbor doubts concerning
the judge’s impartiality.”8 “The objective standard relies on the ‘well-
informed, thoughtful and objective observer, rather than the hypersensitive,
cynical, and suspicious person.’”9 We review a judge’s refusal to recuse
himself for abuse of discretion.10
Hall contends that the district court judge made an improper
comment during a hearing.11 The comment might have been unwise, but it
did not rise to the level of animus that would mandate a recusal. The Supreme
Court has explained that “judicial remarks during the course of a trial that
are critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.” 12 The passing
remark at issue was a statement “of impatience, dissatisfaction, annoyance,
6
28 U.S.C. § 455(a).
7
Id. § 455(b) & b(1).
8
United States v. Brocato, 4 F.4th 296, 302 (5th Cir. 2021) (per curiam) (quoting
United States v. Jordan, 49 F.3d 152, 155 (5th Cir. 1995)).
9
Id. at 302-03 (quoting Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir. 2003)).
10
Id. at 301.
11
The judge told Hall: “You have to quit smoking those cigars.” Hall understood
the judge’s comment to be a reference to marijuana.
12
Liteky v. United States, 510 U.S. 540, 555 (1994).
4
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and even anger, that are within the bounds of what imperfect men and
women, even after having been confirmed as federal judges, sometimes
display. A judge’s ordinary efforts at courtroom administration—even a
stern and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.”13
Hall alleges that the district court judge “negotiated with some
defendants/witnesses Dirden and Nuchia which indicated that he ma[y] have
personal knowledge as a witness in this case.” Hall also claimed that the judge
knew “Nuchia in law school and District Attorney Holmes.” Hall provides
no evidence that even if the district court judge knew these individuals, such
a relationship provided a basis for his recusal.
The remainder of Hall’s complaints against the judge were based on
decisions the judge made in the course of presiding over the case. For
example, Hall contends that the judge’s decisions relating to evidentiary
disputes showed the judge’s “predisposition . . . to deny Hall any
opportunity to have discovery in this lawsuit.” “[J]udicial rulings alone
almost never constitute a valid basis for a bias or partiality motion.” 14 Hall’s
complaints “do not demonstrate bias and impartiality that are personal—as
distinguished from judicial—in nature.”15 The judge’s recusal was not
required.
IV. Judicial Notice
Hall contends that the district court erred “by not taking judicial
notice that a code of silence operates within the Houston Police Department
13
Id. at 555-56.
14
Id. at 555.
15
United States v. Scroggins, 485 F.3d 824, 830 (5th Cir. 2007).
5
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where police misconduct is not investigated and those officers who violated
the code are retaliated against.” Federal Rule of Evidence 201 allows a court
to take judicial notice of a “fact that is not subject to reasonable dispute
because it: (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” “[J]udicial notice applies
to self-evident truths that no reasonable person could question, truisms that
approach platitudes or banalities.”16 Hall’s vague request for the court to take
judicial notice of a conspiracy “is closely joined to an obviously, and
legitimately, controverted issue.”17 The district court correctly declined to
take judicial notice of such a conspiracy.
V. Leave to Amend
Hall also contends that the district court erred by striking Hall’s third
amended complaint for “failure to request leave to amend.” Hall avers that
his third amended complaint explains how the defendants were personally
involved in the conspiracy. He cites to Federal Rule of Civil Procedure
15(a)(1)(B) for the proposition that he should be allowed to amend his
pleading because the Defendants-Appellees had not yet filed a responsive
pleading. The rule states that “A party may amend its pleading once as a
matter of course . . . if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service
of a motion under Rule 12(b), (e), or (f), whichever is earlier.” 18
Hall filed his original complaint on November 2, 2020. He filed his
first amended complaint on November 6, 2020, four days later. Hall cannot
16
Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 347 (5th Cir. 1982).
17
Wooden v. Mo. Pac. R.R. Co., 862 F.2d 560, 563 (5th Cir. 1989).
18
(emphasis added).
6
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rely on Rule 15 to support his amendment automatically because he had
already amended his complaint “once as a matter of course.”
Hall further contends that the amendment was necessary because
Mayor Sylvester Turner was a required party under Rule 19 of the Federal
Rules of Civil Procedure since Turner had acquired constructive knowledge
of the alleged conspiracy. The district court dismissed Hall’s claims against
Turner because “[n]o evidence indicates that Turner did anything other than
serve as Houston’s mayor over 20 years after the actions of which Hall
complains.” Hall has not shown that Turner was an indispensable party. The
district court did not abuse its discretion by denying leave to amend.19
VI. Defendant-Appellee Malveaux
The district court dismissed Hall’s claims against Gayland Malveaux
for want of prosecution. The court had previously ordered Hall “to appear
in court for a hearing on default judgment to articulate his claims against
Malveaux with facts and evidence to support those claims.” The court
dismissed the claims against Malveaux when Hall failed to show up to present
his claims. Hall does not claim that he did appear to present his case. His
objection on appeal that Malveaux should have been subpoenaed as a material
witness is without merit because she was dismissed from the case for want of
prosecution.
VII. Wiretap and Pen Registers
Hall alleges that illegal wiretaps and pen registers were placed to
provide surveillance on him by the internal affairs department of the Houston
Police Department. He was going through a divorce with Malveaux at that
time and contends that fellow Defendant-Appellee Renita Ferguson “began
19
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002).
7
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coaching [Malveaux] on domestic violence scenarios in order to disqualify
Hall.” As a result, a complaint was placed in Hall’s internal affairs file
without his notice “for over 25 years.” He contends “that the internal affairs
division used illegal wiretap and pen register investigative equipment to assist
Malveaux in the divorce proceedings because she was politically connected.”
After further investigation, Hall explained that a “May 31, 2018 open records
correspondence [reveals that] the police department targeted Hall for a
criminal investigation using pen registers and wiretaps.” Hall is still unsure
about the accuracy of this information. “Despite exercising due diligence,
Hall could not determine the accuracy of the information or the identity of
the complainant.”
Hall is frustrated because the district court judge refused “to make the
City Attorney and the internal affairs division produce any court orders
signed by Judges.” He explains that “[c]ourt orders are public records;
therefore, the absence of the court orders meant that the use of the pen
registers and wiretaps were illegally conducted.” He concludes that the
absence of court orders indicates fraud and that fraud tolls the statute of
limitations.
The district court is correct that a two-year statute of limitations bars
Hall’s claims. Hall brings this claim under 42 U.S.C. §§ 1981, 1983, 1985 and
the Interception of Wire and Electronic Communications Act, 18 U.S.C. §
2520. “Section 1981 does not contain a limitations period [so] courts have
traditionally applied the relevant state personal injury limitations period.”20
Under Texas law, “the two-year statute of limitations for personal injury
actions in Texas controls.”21 The same is true for Section 1983 and 1985
20
Johnson v. Crown Enters., Inc., 398 F.3d 339, 341 (5th Cir. 2005).
21
Jones v. Alcoa, Inc., 339 F.3d 359, 364 (5th Cir. 2003).
8
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claims.22 The Interception of Wire and Electronics Communications Act also
has a two-year statute of limitations.23
Federal law controls when the clock starts to run:
Under federal law, a cause of action accrues the moment the
plaintiff knows or has reason to know of the injury that is the
basis of his complaint. Thus, the statute of limitations begins to
run from the moment the plaintiff becomes aware that he has
suffered an injury or has sufficient information to know that he
has been injured.24
Even if we put Hall in the best light (as we must at the motion-to-dismiss
stage) and start the clock at the discovery of the May 31, 2018 open records
correspondence, his suit is still untimely. He filed it on November 2, 2020 —
five months after the two-year period had run. Hall’s allegations of fraud
were repeatedly raised in the district court. The court explained that it “has
repeatedly told [Hall] his fraud on the court claim is baseless.” Hall does not
question that conclusion on appeal so fraud is not a valid basis to toll the
statute of limitations which had already run in this case.
VIII. Jury Trial
Hall further contends that he was denied his right to a jury trial. As
the district court explained, however, Hall “does not have a right to a jury
trial in a default judgment hearing.” “Dismissal of [] claims pursuant to a
22
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001); Helton v.
Clements, 832 F.2d 332, 334 (5th Cir. 1987).
23
18 U.S.C. § 2520(e).
24
Helton, 832 F.2d at 334-35.
9
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valid 12(b)(6) motion does not violate [Hall’s] right to a jury trial under the
Seventh Amendment.”25
IX. In-Camera Review
Hall finally objects to the district court’s in-camera review of
documents produced by the City of Houston. The court explained that it
“has reviewed the documents from the City, and they do not support [Hall’s]
claims. He is not entitled to these confidential documents, and this court will
not give them to him.” Hall cites inapplicable criminal law and out-of-circuit
precedents that cannot provide a basis for his claim. “It is settled that in
camera proceedings are an appropriate means to resolve disputed issues of
privilege.”26 Hall has thus not demonstrated that this evidentiary decision
constituted error.
X. Conclusion
Hall has not presented any valid reason to disturb the district court’s
judgment, so we AFFIRM.
25
Hasse v. Countrywide Home Loans, Inc., 748 F.3d 624, 631 n.5 (5th Cir. 2014).
26
In re Eisenberg, 654 F.2d 1107, 1112 n.7 (5th Cir. Unit B Nov. 1981).
10