Case: 22-10314 Document: 00516690362 Page: 1 Date Filed: 03/27/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
March 27, 2023
No. 22-10314
Summary Calendar Lyle W. Cayce
Clerk
____________
Gwendolyn D. Gabriel; Barbara J. Gabriel; Regina
Brown; Brittny Washington; Kenneth J. Gabriel,
Plaintiffs—Appellants,
versus
Merry Outlaw; Bridgett Zoltowski; Judge Tonya
Parker; John Nation; Lorenzo Brown; John Frick,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-60
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Gwendolyn D. Gabriel, Barbara J. Gabriel, Regina Brown, Brittny
Washington, and Kenneth J. Gabriel (collectively, “Plaintiffs”) filed suit in
the district court pursuant to the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968, against Merry
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-10314
Outlaw, Bridgett Zoltowski, Judge Tonya Parker, John Nation, Lorenzo
Brown, and John Frick (collectively, “Defendants”). The district court
dismissed the claims of Regina Brown, Barbara Gabriel, Kenneth Gabriel,
and Brittny Washington without prejudice for lack of subject matter
jurisdiction. The court dismissed Gwendolyn Gabriel’s claims seeking non-
monetary relief for lack of subject matter jurisdiction and dismissed her
claims seeking monetary relief for failure to state a claim. Plaintiffs timely
appealed.
We review de novo the district court’s dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011).
The district court adopted the recommendation of the magistrate judge
(“MJ”) to dismiss the claims of all Plaintiffs except Gwendolyn Gabriel for
lack of standing. The MJ’s implicit finding that Gwendolyn Gabriel had
established Article III standing was correct, see Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 157–58 (2014), so the district court should not have
dismissed the case in part for lack of standing, see Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 264 & n.9 (stating that when at least
one plaintiff has demonstrated standing, the court need not consider whether
the other plaintiffs also have standing).
The district court also adopted the MJ’s ruling that Plaintiffs’ claims
were barred by the Rooker-Feldman doctrine insofar as they sought an order
that would void specific state court judgments and another order requiring
the Defendants to remove notices of lis pendens that they had placed on
identified properties. The Rooker-Feldman doctrine “is confined to . . . cases
brought by state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.” Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). That doctrine
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does not apply to individuals who were not parties to the underlying state-
court proceeding. Lance v. Dennis, 546 U.S. 459, 464 (2006). Because
Gwendolyn Gabriel and Regina Brown are the only plaintiffs who were
parties to the state-court litigation at issue, here, the Rooker-Feldman doctrine
bars only their claims—and then only to the extent that they seek “relief that
directly attacks the validity of an existing state court judgment.” Weaver v.
Texas Cap. Bank N.A., 660 F.3d 900, 904 (5th Cir. 2011). We therefore affirm
the district court’s dismissal for lack of subject matter jurisdiction only as to
the claims of Gwendolyn Gabriel and Regina Brown seeking reversal of the
state court judgments. We also modify the district court’s judgment to reflect
that these claims are dismissed without prejudice.
Applying de novo review, Meador v. Apple, Inc., 911 F.3d 260, 264 (5th
Cir. 2018), we also affirm the dismissal of the remainder of the Plaintiffs’
claims for their failures to state claims under Rule 12(b)(6), albeit for slightly
different reasons than those expressed by the district court, see Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999) (“this Court may affirm on any basis
supported by the record.”).
“[A]ny RICO claim necessitates 1) a person who engages in 2) a pattern
of racketeering activity, 3) connected to the acquisition, establishment,
conduct, or control of an enterprise.” Crowe v. Henry, 43 F.3d 198, 204 (5th
Cir. 1995) (citation omitted). “A pattern of racketeering activity consists of
two or more predicate criminal acts that are (1) related and (2) amount to or
pose a threat of continued criminal activity.” St. Germain v. Howard, 556 F.3d
261, 263 (5th Cir. 2009). A plaintiff must plead the elements of the criminal
offenses that constitute the predicate acts, Elliot v. Foufas, 867 F.2d 877, 880
(5th Cir. 1989), and must show that the alleged racketeering activity was both
the “but for” and proximate cause of the injury to his business or property,
Holmes v. Sec. Inv. Prot. Corp, 503 U.S. 258, 268 (1992).
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The Plaintiffs’ claims against Nation and Frick amount to complaints
about their actions as attorneys in the underlying state court proceedings and
cannot form the basis for civil RICO liability. See Snow Ingredients, Inc. v.
SnoWizard, Inc., 833 F.3d 512, 525 (5th Cir. 2016). The Plaintiffs’ claims
against Judge Parker arise out of acts performed in the exercise of her judicial
function and are therefore barred by judicial immunity. See Boyd v. Biggers, 31
F.3d 279, 284 (5th Cir. 1994); Ballard v. Wall, 413 F.3d 510, 515 (5th Cir.
2005).
With regard to Outlaw, Plaintiffs have not shown that her asserted
predicate RICO acts “constitute or threaten long-term criminal activity,”
since all of her alleged wrongful acts were taken as part of her defense of the
underlying state lawsuit, which has now ended. In re Burzynski, 989 F.2d 733,
742–43 (5th Cir. 1993). Further, Gwendolyn Gabriel has not pleaded facts
sufficient to state a sexual harassment or retaliation claim against Outlaw
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”). See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
With respect to Zoltowski, the Plaintiffs have not demonstrated that
her alleged attempt to bribe a witness in the state court via a settlement offer
was a “but for” or proximate cause of any injury to their business or property.
See Holmes, 503 U.S. at 268. Plaintiffs have also failed to state a RICO claim
against Lorenzo Brown predicated on his alleged fraud because they have
failed to plead the required elements of any type of fraud that is recognized
as a RICO predicate act. See 18 U.S.C. § 1961(1); Elliot, 867 F.2d at 880.
Neither has Gwendolyn Gabriel pleaded any facts that could form the basis
of a sexual harassment or retaliation claim against Lorenzo Brown under Title
VII. See Iqbal, 556 U.S. at 677–78.
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Insofar as Plaintiffs challenge the district court’s decision to issue a
sanction warning, they have abandoned any such challenge by their failure to
brief it on appeal. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
In light of the foregoing, we MODIFY the district court’s judgment
to reflect dismissal of Gwendolyn Gabriel’s and Regina Brown’s claims
without prejudice to the extent they sought reversal of the state court
judgments, and we AFFIRM that judgment as thus MODIFIED.
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