Liptak v. Banner ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 9, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-10917
Summary Calendar
VIRGIL F. LIPTAK,
Plaintiff-Appellant,
versus
PAUL BANNER, State Judge; JOHN OVARD, State Judge; CRAIG
FOWLER, Attorney at Law, State Judge; RAY HICKS, Deputy
Sheriff; ELIZABETH THORNHILL; DANIEL SHEEHAN & ASSOCIATES;
DAVID EVANS, State Judge; KERRY THORNHILL; STRASBURGER and
PRICE, LLP; JACKSON & WALKER, LLP,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-953-M
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Virgil F. Liptak appeals from the district
court’s dismissal with prejudice of his complaint seeking
declaratory and other relief against the Defendants-Appellees. The
district court dismissed Liptak’s complaint on the ground, inter
alia, that the court lacked subject-matter jurisdiction over the
*
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that this opinion should not be published and is not precedent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.
complaint because it is, in effect, an attempt to litigate and
relitigate matters already adjudicated in state or federal court.
A district court’s dismissal for lack of subject matter
jurisdiction is reviewed de novo. See Williams v. Dallas Area
Rapid Transit, 242 F.3d 315, 318 (5th Cir. 2001).
Liptak argues on appeal that the Texas “Vexatious Litigant”
statute is unconstitutional, and he should have received a jury
trial on this issue. Many of the claims in Liptak’s complaint,
including his challenge to the Texas “Vexatious Litigant” statute,
were inextricably intertwined with the state court decisions
involving his claims against Elizabeth Thornhill. Accordingly, the
district court properly dismissed Liptak’s previously-litigated
claims for lack of subject-matter jurisdiction. See United States
v. Shepherd, 23 F.3d 923, 924 (5th Cir. 1994).
Liptak contends that the district court judge erred in denying
Liptak’s his request that she recuse herself. Liptak’s
speculative, unsupported allegations of bias and references to the
district court’s adverse rulings are insufficient grounds for
recusal. See United States v. Mizell, 88 F.3d 288, 299-300 (5th
Cir. 1996); United States v. Miranne, 688 F.2d 980, 985 (5th Cir.
1982). The district court did not abuse its discretion by denying
Liptak’s motion for recusal. See United States v. Harrelson, 754
F.2d 1153, 1165 (5th Cir. 1985).
Liptak also asserts that the district court erred in denying
his motion for appointment of counsel. As Liptak conceded that he
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was financially able to afford retained counsel, the district court
did not abuse its discretion in refusing to appoint counsel. See
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Liptak also complains that the district court improperly
dismissed his conspiracy claims as insufficiently pleaded because
they were based solely on circumstantial evidence. He
mischaracterizes the basis for dismissal. Our examination of the
district court’s orders of dismissal shows that Liptak’s conspiracy
claims were properly dismissed because they consisted solely of
conclusional allegations, not circumstantial evidence. See
Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir. 1999).
Accordingly, the district court’s judgment is
AFFIRMED.
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