Opinion
Civil Action Cause Number 5:04-CV-062-J.
January 7, 2005
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' CONVERTED MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants John Ashcroft and Roger McRoberts (incorrectly sued as "Robert McRoberts") motion for summary judgment on all remaining claims asserted against them in this case. This motion is granted as follows.
This order rules upon that portion of Defendants' June 1, 2004, Rule 12(b)(6) motion to dismiss which was converted by the Court on June 10, 2004, to a Rule 56 motion for summary judgment.
Background
Plaintiffs allege that John C. Ashcroft, the Attorney General of the United States, and McRoberts, an Assistant United States Attorney, engaged in fourteen (14) enumerated conspiracies to: destroy Mr. Bryant's business, put him in prison on false charges, put his wife in prison and destroy her credentials, cause his death in a police raid, take away his home, his civil rights, his professional credentials and his ability to make a living, injure him and his son, make him a launderer of drug money and involve him in criminal activity, and obstruct justice. Plaintiffs allege no facts showing how these alleged conspiracies were to be accomplished, other that they state that thirteen of these conspiracies existed at the time of Plains National "Bank's conduct on May 9, 2002."
Legal Standards
The Court may terminate litigation by rendering a summary judgment where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (initial burden is on movant to show entitlement to summary judgment with competent evidence). A material fact issue is one that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party opposing judgment must point the Court to "specific facts with sufficient particularity to meet all the elements necessary to lay a foundation for recovery, including those necessary to negate the defense" offered by movant. Brown v. Texas AM University, 804 F.2d 327, 333 (5th Cir. 1986).
Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 323-25, 106 S.Ct. at 2553; Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. at 2510. The nonmoving party must designate specific facts showing there exists a genuine issue of material fact on those elements sought to be negated by the movant. Ibid.
Discussion and Analysis
Defendants Ashcroft and McRoberts move for judgment on Plaintiffs' remaining claims, which are asserted against them in their individual capacities. Defendants state that these claims are barred by the doctrine of qualified immunity.Qualified immunity protects government officials performing discretionary functions from civil liability if their conduct violates no clearly established statutory or constitutional right of which a reasonable person would have known. Sorenson v. Ferrie, 134 F.3d 325, 327 (5th Cir. 1998). The Supreme Court has clarified how courts should address a qualified immunity assertion, requiring a two-pronged test. See Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Once a defendant pleads qualified immunity, the district court first must determine whether, under current law, the Plaintiffs have alleged a constitutional violation at all. Id. The second prong requires courts to make two separate inquiries: whether the allegedly violated right was "clearly established" at the time of the incident; and, if so, whether the defendant's conduct was objectively unreasonable in light of the clearly established law. Id.; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998). The court may not pretermit the first prong but must decide whether a plaintiff has alleged any constitutional violation before it may move to the inquiries under the second prong. See, e.g., Quives v. Campbell, 934 F.2d 668, 670 (5th Cir. 1991).
Plaintiffs have not alleged or detailed the factual circumstances giving rise to Plaintiffs' claims against Attorney General Ashcroft or AUSA McRoberts. Plaintiffs have not alleged with particularity any facts showing a constitutional violation, civil conspiracies, or RICO violations. The alleged facts that "McRoberts is now and has been a Defendant in a criminal investigation . . . by the FBI of Dallas, Texas," and "now over a 1,000 agents with the FBI and others are serving time in the Fort Worth Correction Center and elsewhere" are not evidence showing that Attorney General Ashcroft or AUSA McRoberts violated any of Plaintiffs' rights.
Plaintiffs' claims against Ashcroft and McRoberts in their individual capacities were not dismissed for failure to state a claim upon relief can be granted. Pursuant to Rule 12(b) the Court converted that portion of Defendants' Rule 12(b) (6) motion to a motion for summary judgment. The parties were given until July 31, 2004, to submit whatever evidence they have detailing the alleged factual circumstances giving rise to Plaintiffs' individual or personal capacity claims against Attorney General Ashcroft or AUSA McRoberts. That time has now long passed.
Plaintiffs have submitted no evidence clarifying what actions Ashcroft and McRoberts allegedly did, or failed to do, that allegedly violated Plaintiffs' civil rights and/or the RICO laws. Plaintiffs have failed to plead facts and/or come forward with competent summary judgment evidence necessary to properly allege any conspiracy and show these Defendants' involvement in any conspiracy. Summary judgment will therefore be entered in favor of Defendants Ashcroft and McRoberts.
Conclusions
For the reasons set forth above, summary judgment in favor of Defendants John C. Ashcroft and Roger L. McRoberts (incorrectly sued as "Robert McRoberts") will be entered on all individual or personal capacity claims asserted herein by Plaintiffs.
This suit was filed on February 9, 2004. No remaining Defendant has been properly served. There appears to be no reason why a final judgment should not be entered that Plaintiffs recover nothing on their causes of action against Defendants Ashcroft, Roger McRoberts (incorrectly sued as "Robert McRoberts"), and Mrs. Roger McRoberts. Final judgment will be entered accordingly.
An appropriate order will be entered concerning the remaining unserved Defendants.
It is SO ORDERED.