Stringer v. Davis Mtn Property ( 2003 )


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  •                                                                                        United States Court of Appeals
                                                                                                    Fifth Circuit
                                                                                                  F I L E D
                         IN THE UNITED STATES COURT OF APPEALS
                                                                                                November 28, 2003
                                      FOR THE FIFTH CIRCUIT
                                                                                             Charles R. Fulbruge III
                                                                                                     Clerk
    
    
                                               No. 03-50066
                                             Summary Calendar
    
    
    MARTIN STRINGER; ET AL.,
    
    
                                                                     Plaintiffs,
    DONALD BARKER,
    
                                                                                           Plaintiff-Appellant,
                                                    versus
    
    DAVIS MOUNTAIN PROPERTY OWNERS ASSOCIATION, INC.; STEVE
    BARR; SANDRA HOLZHEUSER; JOE ROWE; DON TANNER; JEFF
    FISHER; CHUCK SANDERS; HAZEL LOCKLEAR; JAN GARNET; MARY
    FRED; M. A. ROWE; BILL BURNS; JOE BROOKS, SR.,
    
                                                                                        Defendants-Appellees.
    
                            ---------------------------------------------------------
                              Appeal from the United States District Court
                                     for the Western District of Texas
                                         USDC No. P-02-CV-35-F
                            ---------------------------------------------------------
    
    Before SMITH, DEMOSS and STEWART, Circuit Judges.
    
    PER CURIAM:*
    
           Donald Barker appeals the grant of judgment on the pleadings in favor of the appellees. In
    
    his complaint, he alleged that the appellees co mmitted mail fraud and violated the RICO Act and
    
    Hobbs Act. He also alleged violations of the Voting Rights Act.
    
           *
               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.
           First and contrary to Barker’s arguments, the district court properly considered the appellees’
    
    motion to dismiss as a motion for judgment on the pleadings under FED. R. CIV. P. 12(c). Jones v.
    
    Greninger, 
    188 F.3d 322
    , 324 (5th Cir. 1999). The district court’s consideration of matters of public
    
    record did not convert the motion for judgment on the pleadings into a motion for summary
    
    judgment. Davis v. Bayless, 
    70 F.3d 367
    , 372 n.3 (5th Cir. 1995). As for Barker’s cause of action
    
    under the Voting Rights Act, Barker, in response to the appellees’ motion for judgment on the
    
    pleadings, did not contest the appellees’ assertion that the Voting Rights Act did not apply.
    
           With regard to the mail-fraud claim, Barker pleaded no facts showing that the appellees made
    
    any false representations. In re Burzynski, 
    989 F.2d 733
    , 742 (5th Cir. 1993). As for the Hobbs Act
    
    claim, Barker failed to allege that the appellees’ supposed extortion affected commerce. United
    
    States v. Robinson, 
    119 F.3d 1212
     (5th Cir. 1997).
    
           Because Barker failed to state claims of either mail fraud or extortion, the two alleged
    
    predicate acts, he failed to adequately plead a “pattern of racketeering” as required by 18 U.S.C. §
    
    1962. Burzynski, 989 F.2d at 741. Accordingly, the district court’s judgment is AFFIRMED. This
    
    court DENIES Barker’s motion for summary judgment. This court also DENIES Barker’s motion
    
    for costs and the appellees’ request for sanctions under FED. R. APP. P. 38.
    
           AFFIRMED; MOTIONS FOR SUMMARY JUDGMENT AND COSTS DENIED;
    
    MOTION FOR SANCTIONS DENIED.
    
    
    
    
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