Pitts v. United States Department of Housing & Urban Development , 546 F. App'x 118 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1271
ALAN PITTS; SENECA NICHOLSON-PITTS,
Plaintiffs - Appellants,
v.
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT;
ATLANTA HOME OWNERSHIP CENTER; JENNIFER HARRY; HMB, INC.;
DANNY BRIAN; HAMILTON BARKSDALE; ROBERT SCOTT; O’BRIAN LAW
FIRM; KERMIT THOMSON; FAYE THOMPSON; SUBSTITUTE TRUSTEE,
INC.; SUSAN BENOIT; LORI ANN RENN; CYNTHIA ABBOTT; VANCE
COUNTY REGISTER OF DEEDS; INVESTOR’S TITLE COMPANY;
LAWYER’S MUTUAL; WAYNE STEPHENSON; THE LAW FIRM OF
HUTCHENS, SENTER & BRITTON, PA; RICHARD D. MEADOR; DONALD
W. GUPTON; DONALD SCOTT CARROLL; THREE JOHN DOE WHITE MALES
RESIDING AT 908 CROSS CREEK RD. HENDERSON, NC; CAPITAL
MORTGAGE CORPORATION; CHASE MANHATTAN MORTGAGE CORPORATION;
CHASE HOME FINANCIAL, LLC; VANCE COUNTY CLERK OF THE
SUPERIOR COURT; RESPONSIBLE MEMBERS OF NORTH CAROLINA BAR
ASSOCIATION; JENNIFER A. PORTER; RONALD G. BAKER, SR.;
SHERRY PENDERGRASS ROSS; ROCKY ROSS,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cv-00072-D)
Submitted: October 28, 2013 Decided: November 5, 2013
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan Pitts, Seneca Nicholson-Pitts, Appellants Pro Se. Matthew
Fesak, Assistant United States Attorney, Seth Morgan Wood,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina;
Paul J. Stainback, Henderson, North Carolina; James Scott
Flowers, HUTCHENS, SENTER & BRITTON, Fayetteville, North
Carolina; James K. Pendergrass, Jr., PENDERGRASS LAW FIRM,
Raleigh, North Carolina; Julie Baxter Bradburn, Kristen
Yarbrough Riggs, WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, Raleigh,
North Carolina; Ronald H. Garber, BOXLEY, BOLTON, GARBER &
HAYWOOD, LLP, Raleigh, North Carolina; Grady L. Balentine, Jr.,
Special Deputy Attorney General, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Alan Pitts and Seneca Nicholson-Pitts (collectively,
“Pitts”) appeal the district court’s order dismissing their
civil action under the Racketeer Influenced and Corrupt
Organizations Act (“RICO Act”), 18 U.S.C. §§ 1962(c)-(d),
1964(c) (2006), 42 U.S.C. §§ 1981, 1983, and 1985(3), the Fair
Housing Act (“FHA”), 42 U.S.C. §§ 3601-19 (2006), and North
Carolina state law. We affirm.
The district court granted a motion for summary
judgment and the motions to dismiss filed by various Defendants
on the basis that Pitts’ claims under federal law were subject
to dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state
a claim upon which relief could be granted. Pitts challenges
this ruling on appeal. We review a district court’s dismissal
under Rule 12(b)(6) de novo, “assuming all well-pleaded,
nonconclusory factual allegations in the complaint to be true.”
Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011).
To survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege facts sufficient “to raise a right to relief above
the speculative level, thereby nudging [the plaintiffs’] claims
across the line from conceivable to plausible.” Id. (internal
quotation marks and alteration omitted).
Pitts’ allegations fail to state a plausible claim for
relief under the RICO Act because he did not allege facts
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sufficient to show that the Defendants identified engaged in or
conspired to engage in a pattern of racketeering activity.
See US Airline Pilots Ass’n v. Awappa, LLC, 615 F.3d 312, 317
(4th Cir. 2010) (listing the elements of a civil claim under the
RICO Act); Anderson v. Found. for Advancement, Educ. and Emp’t
of Am. Indians, 155 F.3d 500, 505 (4th Cir. 1998) (addressing
the showing needed to meet the “pattern” requirement); Menasco,
Inc. v. Wasserman, 886 F.2d 681, 683-84 (4th Cir. 1989) (noting
that the predicates alleged must amount to or pose a threat of
continued criminal activity and that the circumstances of the
fraudulent acts that form an alleged pattern of racketeering
activity must be pled with specificity).
Pitts also invoked 42 U.S.C. §§ 1981, 1983, and
1985(3) as bases for relief. Pitts’ allegations, however, fail
to state a plausible claim for relief under § 1981 because he
did not allege facts sufficient to show that the Defendants
identified intentionally discriminated against him on the basis
of race concerning any of the activities enumerated in 42 U.S.C.
§ 1981(a)-(b). See Spriggs v. Diamond Auto Glass, 165 F.3d
1015, 1018 (4th Cir. 1999) (noting that a § 1981 action must be
“founded on purposeful, racially discriminatory actions”);
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,
1087 (2d Cir. 1993) (per curiam) (listing the elements of a
claim for relief under § 1981).
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We conclude that Pitts’ allegations fail to state a
plausible basis for relief under § 1983. As to Defendants
Cynthia Abbott, the Vance Country Register of Deeds, the Vance
County Clerk of the Superior Court, Investors Title Insurance
Company, HMB Inc., Substitute Trustee Inc., Hamilton Barksdale,
Danny Brian, Susan Benoit, and Lori Renn, the complaint does not
allege facts establishing any basis for concluding these
Defendants deprived Pitts of a right, privilege, or immunity
secured by the Constitution or laws of the United States.
See Dowe v. Total Action Against Poverty in Roanoke Valley,
145 F.3d 653, 658 (4th Cir. 1998) (listing the elements of a
claim for relief under § 1983). As to Defendants O’Brian Law
Firm, Robert Scott, and the “Three John Doe White Males,” the
complaint does not allege facts establishing any basis for
concluding that these Defendants took action fairly attributable
to the state. See Mentavlos v. Anderson, 249 F.3d 301, 310
(4th Cir. 2001) (noting that the deeds of ostensibly private
organizations and individuals may be treated as having occurred
under color of state law for purposes of § 1983 if “there is
such a close nexus between the State and the challenged action
that seemingly private behavior may be fairly treated as that of
the State itself” (internal quotation marks omitted)).
We conclude that Pitts’ allegations also fail to state
a plausible basis for relief under § 1985(3). Pitts did not
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allege facts sufficient to show the existence of a meeting of
the minds between or among the identified Defendants to deprive
him of his right to equal enjoyment of rights secured by all.
See Francis v. Giacomelli, 588 F.3d 186, 196-97 (4th Cir. 2009)
(listing the elements of a civil conspiracy claim under
§ 1985(3)); Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995)
(noting that conclusory allegations of a conspiracy are
insufficient to support a § 1985(3) claim). We conclude further
that Pitts’ allegations fail to state any plausible basis for
relief under the FHA, as they amount to no more than legal
conclusions that certain Defendants violated his right to fair
housing.
We also note that Pitts’ informal appellate briefs do
not present specific arguments challenging as error the district
court’s rulings declining to exercise supplemental jurisdiction
over his claims under state law and dismissing those claims
without prejudice once it determined that he failed to state
claims for relief under the federal statutes invoked.
Accordingly, Pitts has forfeited appellate review of these
rulings. 4th Cir. R. 34(b); Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F.3d 599, 607 (4th Cir. 2009); Williams v. Giant Food
Inc., 370 F.3d 423, 430 n.4 (4th Cir. 2004).
Finally, Pitts claims on appeal that the district
court erred in dismissing his case without holding an
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evidentiary hearing and in granting the motion for summary
judgment before he had an opportunity to respond to it. Pitts,
however, does not explain why or how the district court’s
failure to hold an evidentiary hearing warrants vacautur of its
judgment. Moreover, although the district court dismissed
Pitts’ action four days before the expiration of the
twenty-one-day period under the court’s local rules for filing a
response to the summary judgment motion, we conclude that any
error in this regard was harmless within the meaning of Fed. R.
Civ. P. 61 (directing courts to “disregard all errors and
defects” in a proceeding that do not “affect any party’s
substantial rights”), as Pitts does not explain how he was
prejudiced by the court’s timeframe.
Accordingly, although we grant leave to proceed in
forma pauperis and grant Pitts’ motion seeking leave to file his
reply brief out of time, we affirm the district court’s
judgment. We deny Pitts’ motion to schedule oral argument and
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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