Opinion
CIVIL ACTION No. 02-0769, SECTION: I/2
March 24, 2003
ORDER AND REASONS
Pending before the Court are the following motions:
1) Motion of defendants, District Attorney Michael Cassidy ("DA Cassidy") and Assistant District Attorney Bennett Lapoint ("ADA Lapoint"), to dismiss (Rec. Doc. No. 15);
2) Amended motion of DA Cassidy and ADA Lapoint to dismiss (Rec. Doc. No. 34);
3) Rule 12(b) motion of defendants, Richard Edwards, Jr., in his capacity as Sheriff of Jefferson Davis Parish ("Sheriff Edwards"), Deputy Arthur Phillips ("Deputy Phillips"), and Deputy Danny Semmes ("Deputy Semmes"), to dismiss (Rec. Doc. No. 5);
4) Amended Rule 12(b) motion of defendants, Sheriff Edwards, Deputy Phillips, and Deputy Semmes, to dismiss (Rec. Doc. No. 25);
5) Motion of defendants, New Orleans Municipal Employees Credit Union ("NOMECU") and Mark Rosa ("Rosa") to dismiss (Rec. Doc. No. 13); and
6) Amended motion of defendants, NOMECU and Rosa, to dismiss (Rec. Doc. No. 31).
Background
On March 14, 2002, plaintiff, Ishmel Ennis ("Ennis"), filed a complaint in this court. He alleges that on June 26, 2000, shortly after midnight, he and Eric Summers ("Summers), both African-American males, were traveling east on I-10 near Lake Charles, Louisiana, in a 2000 GMC Yukon which was owned and operated by the plaintiff at the time in question. The plaintiff alleges that Jefferson Davis Parish Deputy Phillips stopped him for questioning. He also alleges that Deputy Phillips asked for his permission to search his vehicle, that he gave permission for the search, and that he signed a waiver indicating his permission. Ennis alleges that during the search another Jefferson Davis Parish deputy, Monti Chavelier, saw a bag under the hood of the Yukon which he thought might contain illegal narcotics. Plaintiff alleges that he and Summers were arrested and brought to a jail located in Jennings, Louisiana. After he was in jail, plaintiff alleges that Deputy Phillips charged him with illegal lane change and possession with intent to distribute cocaine.On June 26, 2000, plaintiff alleges that Jefferson Davis Parish Deputy Semmes obtained the registration for his Yukon and he telephoned the dealer who sold the vehicle to the plaintiff. The dealer advised Deputy Semmes that NOMECU had a lien on the Yukon. Deputy Semmes allegedly called NOMECU and spoke to Mark Rosa, the president of NOMECU. Plaintiff alleges that Rosa initially provided confidential financial information to Deputy Semmes. Later that day, after Rosa refused to provide additional information without a subpoena, Deputy Semmes contacted Bennett Lapoint, Assistant District Attorney of the 31st Judicial District Court for the Parish of Jefferson Davis, State of Louisiana, and asked him to apply to the state court for a subpoena duces tecum in order to obtain plaintiff's financial information. Plaintiff claims that a state court judge signed a subpoena duces tecum allowing the state to obtain information from NOMECU.
Rec. Doc. No. 1.
Plaintiff's initial complaint describes Rosa as the president of NOMECU. Rec. Doc. No. 1, ¶ 35, p. 7. In his response to the RICO standing order, plaintiff describes Rosa as the manager of the NOMECU. Rec. Doc. No. 9, p. 3.
Rec. Doc. No. 1.
Plaintiff also alleges that in early July, 2000, after his bond was increased from $ 65,000 to $ 400,000, NOMECU applied funds in the plaintiff's account, pledged by plaintiff to obtain the loan for the Yukon, to the outstanding balance on the Yukon, thereby satisfying the lien NOMECU had on the vehicle. Plaintiff alleges that Rosa advised Deputy Semmes that the lien was satisfied and that NOMECU would not pick up the Yukon.
Rec. Doc. No. 1.
According to plaintiff, Rosa violated the RICO act by conspiring with Deputy Semmes to apply the funds in his NOMECU account to satisfy the lien on the vehicle so that NOMECU would not have to sell a repossessed vehicle. Plaintiff also alleges that the Jefferson Davis Parish sheriff's office has continued to hold his 2000 Yukon since it was seized on June 26, 2000, and that it has refused to return it to him. Plaintiff alleges that Sheriff Edwards and his deputies conspired with Rosa so that the vehicle could be seized, forfeited, and sold, which plaintiff alleges is a pattern of racketeering activity.
Rec. Doc. No. 1.
On January 20, 1993, Ennis was convicted by a jury of possession of 400 or more grams of cocaine. He has filed post-trial motions and he is awaiting sentencing.
Rec. Doc. No. 48.
In his complaint, plaintiff has sued Richard Edwards, Jr., the sheriff of Jefferson Davis Parish, Arthur Phillips and Danny Semmes, deputy sheriffs of Jefferson Davis Parish, Michael Cassidy, the district attorney for the 31st Judicial District Court for the Parish of Jefferson Davis, Bennett Lapoint, an assistant district attorney for the 31st Judicial District Court, the New Orleans Municipal Employees Credit Union, and Mark Rosa, the president and/or manager of the New Orleans Municipal Credit Union. He alleges that these defendants have violated the RICO act, contending that the telephone calls by Deputy Semmes to Rosa constituted wire fraud and that they were predicate acts in furtherance of a scheme to defraud Ennis of his vehicle and his money. He also alleges that Deputy Phillips' stop of the Yukon when neither he nor Summers had committed any criminal or suspicious acts, as well as the subsequent search and seizure of his vehicle, are violations of the Fourth Amendment.
Rec. Doc. No. 1.
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.
Rec. Doc. No. 1.
Rec. Doc. No. 1.
On April 22, 2002, plaintiff filed a pleading entitled "Response to RICO Standing Order and Amended and Restated Complaint and Response to defendants, Richard Edwards, Jr., in his capacity as Sheriff of Jefferson Davis Parish, Deputy Arthur Phillips and Deputy Danny Semmes Rule 12(b) Motion." In his Amended and Restated Complaint, plaintiff reiterates his RICO claims in more detail. In addition, he alleges the following:
18. a) 42 U.S.C. § 1983. Civil action for deprivation of rights, petitioner was unlawfully stopped, arrested and imprisoned for no just and legal cause.
b) 42 U.S.C. § 1982. Property rights of citizens. Petitioner was stopped on an Interstate Highway I-10 and detained because he was a black man driving a new car.
19. No pending state civil claims at this time.
Rec. Doc. No. 9.
F.R.Civ.P. 12(b)(6) Dismissal
All of the defendants move to dismiss plaintiff's complaint against them for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In deciding a motion brought pursuant to Rule 12(b)(6), "[t]he court must construe the complaint liberally in favor of the plaintiff and take all facts pleaded as true." Kane Enterprises v. MacGregor (USA), Inc., 2003 WL 297103 at *1 (5th Cir. 2003), quoting Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). The complaint may not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Kane Enterprises, 2003 WL 297103 at *1, quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "[A] plaintiff must plead specific facts, not merely conclusional allegations, to avoid dismissal for failure to state a claim." Kane Enterprises, 2003 WL 297103 at *1, citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The Court will not accept conclusory allegations or unwarranted deductions of fact as true. Id.
RICO
Plaintiff alleges in his complaint that the defendants violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq. "All RICO violations under 18 U.S.C. § 1962 entail '(1) a person who engages in (2) a pattern of racketeering activity, (3) connected to the acquisition, establishment, conduct, or control of an enterprise." In Re Mastercard International, Inc., 313 F.3d 257, 261 (5th Cir. 2002), quoting Crowe v. Henry, 43 F.3d 198, 204 (5th Cir. 1995) (other citation omitted) ( italics in original). "A pattern of racketeering activity requires two or more predicate acts and a demonstration that the racketeering predicates are related and amount to or pose a threat of continued criminal activity."Mastercard, 313 F.3d at 261, quoting St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 441 (5th Cir. 2000), citing Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir. 1996).18 U.S.C. § 1961 (1) defines "racketeering activity" in pertinent part as:
(A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: . . . section 1343 (relating to wire fraud).
"Establishing the minimum number of predicates . . . is not sufficient to establish a pattern; the racketeering predicates must be related and amount to or pose a threat of continued criminal activity." Tel-Phonic Services Inc. v. TBS International, Inc., 975 F.2d 1134, 1140 (5th Cir. 1992), citing H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 236-239, 109 S.Ct. 2893, 2899-2900, 106 L.Ed.2d 195 (1989).
In his complaint, plaintiff alleges that Deputy Semmes' telephone calls and faxing of a subpoena duces tecum to Rosa constitutes wire fraud. The federal wire fraud statute, 18 U.S.C. § 1343, which is included in the RICO statute as a predicate act, states in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire . . . communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned . . .
( Italics added).
In Smith v. Ayres, 845 F.2d 1360 (5th Cir. 1988), the Court observed that "the statute requires that the wire communication cross state lines. Although this circuit has never faced an indictment or complaint alleging federal wire-fraud on the basis of telephone calls made within a single state, our rulings consistently have presumed that a purely intrastate communication would be beyond the statute's reach." Id. at 1366.
All of the telephone calls which plaintiff alleges occurred between any of the defendants were intrastate calls, i.e., to or from Jefferson Davis Parish, Louisiana, or to or from Rosa in New Orleans. Such intrastate calls cannot constitute federal wire fraud pursuant to 18 U.S.C. § 1343 and, therefore, cannot serve as predicate acts for a RICO pattern of racketeering activity. Similarly, since intrastate telephone calls cannot constitute federal wire fraud, conspiring to fax a subpoena duces tecum via an intrastate telephone call cannot constitute conspiracy to violate the federal wire fraud statute.
Plaintiff also alleges in the complaint that the actions of Deputy Phillips in stopping the plaintiff when there was arguably no reasonable basis to do so, as well as the alleged illegal search and seizure of plaintiff's Yukon, are RICO predicate acts. Assuming plaintiff's allegations are true, the Court is unable to discern which RICO predicate act, either under federal or state law, would be violated by such activity.
As previously stated, plaintiff also alleges that the sheriff and his deputies conspired with Rosa and NOMECU to apply funds deposited in the plaintiff's NOMECU account to the outstanding balance on plaintiff's auto loan so that the plaintiff's vehicle could be seized. While plaintiff suggests in his RICO case statement that the public official defendants committed malfeasance in office by such action, malfeasance is not denominated a predicate state law offense under RICO.
The only state statutes which can serve as predicate offenses for a RICO charge are "any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or chemical (as defined in section 102 of the controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year." 18 U.S.C. § 1961 (1). Malfeasance is not listed.
Plaintiff suggests that the seizure and forfeiture of his vehicle pursuant to La.R.S. 40:2601 et seq was improper and that the defendants' actions in furtherance of the seizure and forfeiture of his vehicle constitutes "theft by misappropriation" in violation of La.R.S. 14:67. The Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, La.R.S. 40:2601 et seq, allows certain property connected with a controlled substances violation, punishable by confinement for more than one year pursuant to La.R.S. 40:961, to be seized and forfeited pursuant to the provisions of the Act. Violations of the Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, 40:2601 et seq, are not RICO predicate offenses. In the same vein, to the extent that plaintiff alleges that defendants' conduct violated La.R.S. 14:67, theft by misappropriation, theft by misappropriation is not a state law predicate offense under RICO.
La.R.S. 40:2601 et seq, including La.R.S. 40:2616, are not criminal statutes, but are civil forfeiture statutes.
Because the plaintiff has failed to allege the violation of at least two predicate offenses required by the RICO statute, the Court finds that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief against any defendant on his RICO claim. See, Kane Enterprises, 2003 WL 297103 at *1.
While there may be other bases for dismissal of plaintiff's RICO claim pursuant to Rule 12(b)(6), the Court need not address them.
Civil Rights Claims
In his "Response to RICO Standing Order and Amended and Restated Complaint and Response to Defendants, Richard Edwards, Jr., in his capacity as Sheriff of Jefferson Davis Parish, Deputy Arthur Phillips and Deputy Danny Semmes Rule 12(b) Motion," plaintiff suggests that he has no pending state civil claims, but that he is bringing civil rights claims pursuant to 42 U.S.C. § 1982, i.e., deprivation of his property and 42 U.S.C. § 1983, i.e., false arrest, detention, and imprisonment. 42 U.S.C. § 1982 states that, "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Other than the conclusory allegation that plaintiff brings this claim under 42 U.S.C. § 1982 contending that he was stopped and detained because he was an African-American male driving a new car, plaintiff pleads no other specific facts in support of this claim. Plaintiff does not allege that defendants took any action which affected any real property he owned, nor does the plaintiff allege that defendants interfered with his ability to inherit, purchase, lease, sell, or convey personal property. The only possible claim plaintiff could be alleging under 42 U.S.C. § 1982 is that the defendants intended to prevent him from holding personal property."In order to bring an action under § 1982, a plaintiff 'must allege with specificity facts sufficient to show or raise a plausible inference of (1) the defendant's racial animus; (2) intentional discrimination; and (3) that the defendant deprived plaintiff of his rights because of race.'" Brown v. Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001) (other citations omitted). To avoid dismissal for failure to state a claim, "a plaintiff must plead specific facts, not merely conclusional allegations." Kane Enterprises, 2003 WL 297103 at *1.
Quite plainly, plaintiff's vehicle was seized pursuant to the Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989, La.R.S. 40:2601 et seq. Plaintiff has not alleged that only African-American citizens, and not persons of another race, driving new vehicles on the highway were stopped and detained for narcotics violations because of their race. Nor has plaintiff alleged that only the vehicles of African American citizens, and not those of citizens of another race, were seized and forfeited pursuant to La.R.S. 40:2601 et seq, because the owners of the seized vehicles were African-American. Under these circumstances, the plaintiff has not pleaded specific facts which would allow him to avoid dismissal of his 28 U.S.C. § 1962 claim pursuant to F.R.Civ.P. 12(b).
Plaintiff has also alleged that he was "unlawfully stopped, arrested and imprisoned for no just and legal cause" in violation fo 42 U.S.C. § 1983. Basically, this is a claim for false arrest. Because plaintiff has been convicted of possession of 400 or more grams of cocaine and his conviction has not been invalidated, his § 1983 claim for false arrest has not accrued. Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995).
Plaintiff also seeks redress under § 1983 for the seizure of his vehicle pursuant to the Louisiana Seizure and Controlled Dangerous Substances Property Forfeiture Act, La.R.S. 40:2601 et seq. In his complaint, plaintiff alleges that his 2000 Yukon was seized on June 26, 2000, by the Jefferson Davis Parish sheriff's office, and that the sheriff's office has refused to return the vehicle to him since that time. While not articulating his claim in a straightforward manner, the plaintiff generally alleges that all of the defendants conspired to deprive him of his vehicle in violation of 42 U.S.C. § 1983.
While plaintiff does not reveal the legal basis for his assertion that his vehicle was unconstitutionally seized, the Court assumes that he relies up on the Fifth Amendment to the United States Constitution, which states in pertinent part that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law."
If, however, plaintiff relies on the Fourth Amendment to the United States Constitution, which prohibits "unreasonable searches and seizures" in connection with criminal investigations, the Heck rule would apply and plaintiff's § 1983 claims attacking the validity of the search and seizure would not accrue until the criminal charges pending against the plaintiff have been dismissed or his conviction has been overturned. Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995); Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000); Shamaeizadeh v. Cunigan, 182 F.3d 391, 399 (6th Cir. 1999); Woods v. Candela, 47 F.3d 545, 546 (2d Cir. 1995).
Because there is no federal statute of limitations for § 1983 claims, the district court applies the personal injury claims limitations period applicable in the forum state. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). Pursuant to Louisiana Civil Code article 3492, the prescriptive period for personal injury or delictual actions is one year. While state law determines the applicable limitations period, federal law determines when a § 1983 action accrues. Id. at 621. "Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Moore, 30 F.3d at 620-621, quoting Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). "The statute of limitations . . . begins to run when the plaintiff is in possession of the 'critical facts that he has been hurt and who has inflicted the injury'." Moore, 30 F.3d at 621, quoting Gartrell, 981 F.2d at 256, quoting Lavallee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980). "When an action appears to have prescribed on the face of the complaint, the plaintiff bears the burden of establishing facts which would interrupt or suspend prescription." Ayo v. Johns-Manville Sales Corporation, 771 F.2d 902, 908-909 (5th Cir. 1985); Terrebonne Parish School Board v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
Plaintiff's complaint alleges that he was arrested on June 26, 2000, that Deputy Semmes took the vehicle registration on that date, and that the vehicle has not been returned to him since that date. The limitations period for this claim, therefore, expired on June 26, 2001. The instant complaint was filed on March 14, 2002, more than eight months after the prescriptive period had run. The complaint and amended complaint are devoid of allegations that plaintiff did not learn of the seizure of his vehicle until a later date, but instead indicate that he knew of the Yukon's seizure from the date it occurred. Under these circumstances, the plaintiff's § 1983 action for deprivation of property without due process of law is prescribed on its face. In Opposition, plaintiff has not offered any facts or legal authority indicating that the limitations period has not expired.
Plaintiff's counsel has suggested that because plaintiff's vehicle remains under seizure, such seizure amounts to a continuing tort which continually interrupts prescription. In Detro v. Roemer, 739 F. Supp. 303, 305 (E.D.La. 1990) (Feldman, J.), the district court rejected plaintiff's argument that prescription does not run so long as the wrongful conduct alleged continues, stating:
Where a conspiracy is alleged, the cause of action runs separately from each overt act that is alleged to cause damage to plaintiff. Thus, the plaintiff may recover only for the overt acts that have occurred within the limitations period. The plaintiff cannot toll the running of the statute of limitations simply by asserting that a series of separate wrongs were committed pursuant to a conspiracy. [Citations omitted]. . . . [P]laintiff's argument that the actions of the defendants constitute a continuing tort must fail. The plaintiff's claims for deprivation of Fourth, Fifth, Sixth, and Fourteenth Amendment rights are separate wrongs which do not comprise a continuing violation.739 F. Supp. at 305.
In response to a similar argument by a plaintiff who filed a federal civil rights claim challenging her expulsion from a state university, the Fifth Circuit also rejected the continuing tort argument, observing:
Nor can Davis evade the prescriptive period by contending that the University's actions amount to a continuing tort. See Taylor v. Bunge Corp., 775 F.2d 617, 619 (5th Cir. 1985) ("termination of employment either through discharge or resignation is not a 'continuing violation' because the individual ceases to be an employee on the date of his discharge and all of his legal claims mature at the time"). Davis's claims accrued when she was expelled and barred from the campus; it matters not, for purposes of prescription, that she remains expelled and barred now.Davis v. Louisiana State University, 876 F.2d 412, 413 (5th Cir. 1989).
Conclusion
Accordingly, for the above and foregoing reasons, IT IS ORDERED that the motion, and amended motion of defendants, DA Cassidy and Assistant ADA Lapoint, to dismiss are GRANTED; IT IS FURTHER ORDERED that the Rule 12(b) motion and amended motion of defendants, Sheriff Edwards, Deputy Phillips, Deputy Semmes to dismiss are GRANTED; and
There may be additional bases upon which the plaintiff's complaint and amended complaint could have been dismissed under Rule 12(b)(6). For example, plaintiff has sued DA Cassidy and ADA Lapoint for initiating a civil forfeiture proceeding with respect to his vehicle and for his criminal prosecution. Prosecutors are absolutely immune for actions taken in initiating and presenting the case for the state. Imbler v. Pachtman, 42 U.S. 409, 431, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976). The Fifth Circuit has consistently held "that plaintiffs who invoke § 1983 must plead specific facts that, if proved, would overcome the individual defendant's immunity defense; complaints containing conclusory allegations, absent reference to material facts, will not survive motions to dismiss." Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988). The Court has not discerned any specific facts which, if proved, would overcome the DA's and the ADA's absolute prosecutorial immunity defense. However, because the Court finds that the complaint fails to state a claim as a whole against all of the defendants, it is unnecessary to decide the viability of the complaint against each individual defendant.
IT IS FURTHER ORDERED that the motion and amended motion of defendants, New Orleans Municipal Employees Credit Union and Mark Rosa, to dismiss are GRANTED.
Judgment shall be entered in accordance with this Order and Reasons.