Jones v. Smith ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-51184
Summary Calendar
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JAMES STEPHEN JONES; GREGORY C. NIEMANN,
Plaintiffs-Appellants,
versus
WALTER S. SMITH, JR., United States District
Judge, Western District of Texas, Waco
Division; WILLIAM WILSON JOHNSTON, Assistant
United States Attorney, Western District
of Texas, Waco Division; JOHN PHINIZY,
Assistant United States Attorney, Western
District of Texas, Waco Division; BRAD
WATSON, Special Agent, Drug Enforcement
Agency; ROBERT WILKERSON, Agent with the
Narcotics Division of the Department of
Public Safety, Waco Division; GEORGE MAYBEN,
Narcotics Investigator for Department of
Public Safety; J. R. SLOUGH, Chief Deputy
of Hamilton County, Texas; RONALD HUDSON MOODY;
STAN SCHWIEGER; JEFFEREY BRZOZOWSKI; JOEL BUDGE,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-99-CV-549-JN)
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June 13, 2000
Before SMITH, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
James Stephen Jones, federal prisoner #56081-080, and Gregory
C. Niemann, federal prisoner #26468-080, appeal the dismissal, as
frivolous, of their action under the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. They
contend the district court abused its discretion in so dismissing
pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Because the
RICO action constitutes a challenge to the fact or duration of the
confinement of Jones and Niemann, they are precluded from filing
the action until their challenged convictions have been reversed,
declared invalid, or otherwise impugned. See Stephenson v. Reno,
28 F.3d 26, 27-28 (5th Cir. 1994)(citing Heck, 512 U.S. at 486-87).
Niemann has shown that his challenged conviction has been
called into question; but, he has not shown that the challenged
conviction has been reversed or declared invalid. One of Jones’
several convictions, that under 18 U.S.C. § 924(c) for using and
carrying a firearm during a drug-trafficking offense, has been
vacated pursuant to Bailey v. United States, 516 U.S. 137 (1995).
But, even assuming vacating one of several convictions satisfies
the Heck bar, the judgment may be affirmed on the alternative
ground that Jones has not alleged sufficient facts to state any
RICO claims against the defendants. See United States v. McSween,
53 F.3d 684, 687 n.3 (5th Cir.), cert. denied, 516 U.S. 874 (1995).
Jones and Niemann contend for the first time on appeal that
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the district court violated their due process and equal protection
rights by applying Heck to their RICO claims. They have not
demonstrated plain error. See Robertson v. Plano City of Texas, 70
F.3d 21, 22-23 (5th Cir. 1995). Heck has been applied to a Bivens
action which also raised RICO claims. Stephenson, 28 F.3d at 27-
28.
Jones and Niemann assert that the district court erred in
adopting the magistrate judge’s report and recommendation without
addressing their objections. Any error was harmless, because
Niemann did not show in his objections that the district court
erred in concluding his RICO claims were precluded by Heck. And,
as noted, the dismissal of Jones’ action may be affirmed on the
alternative ground that Jones failed to allege sufficient facts to
state a RICO claim.
Jones and Niemann contend that, after recusing himself, Judge
Walter S. Smith, Jr., was without authority to transfer the case to
Judge James R. Nowlin. They do not cite any authority to support
their contention and have not shown that Judge Smith acted without
authority or improperly.
Jones and Niemann contend that the district court erred in not
reviewing the magistrate judge’s denial of their motion to recuse
Judge Nowlin; they maintain that the magistrate judge did not have
authority to rule on the motion. Pursuant to 28 U.S.C. § 636(b),
the district court referred all pretrial matters to the magistrate
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judge. Thus, the magistrate judge had authority to rule on the
motion to recuse. Because Jones and Niemann did not show that
Judge Nowlin was biased or prejudiced, they have not shown that the
magistrate judge erred. See United States v. MMR Corp., 954 F.2d
1040, 1044 (5th Cir. 1992) (28 U.S.C. § 144); United States v.
Harrelson, 754 F.2d 1153, 1165 (5th Cir.) (28 U.S.C. § 455), cert.
denied, 474 U.S. 908, 1034 (1985).
For the first time on appeal, Jones and Niemann contend that
Judge Nowlin retaliated against them by threatening to impose
sanctions for exercising their First Amendment rights. Once again,
they have not demonstrated plain error. Needless to say, the
district court had discretion to warn that filing frivolous actions
in the future would result in the imposition of sanctions. This
warning did not violate First Amendment rights. See Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
AFFIRMED
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