Govea v. ATF ( 2006 )

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT November 2, 2006
Charles R. Fulbruge III
No. 06-10507 Clerk
Summary Calendar
FERNANDO E GOVEA
Plaintiff - Appellant
v.
ATF, Bureau of Alcohol, Tobacco, Firearms and Explosives;
BREEDERS’ CUP LTD; MEC LONE STAR PARK; MAGNA ENTERTAINMENT CORP;
TEXAS RACING COMMISSION; GRAND PRAIRIE SPORTS FACILITIES
DEVELOPMENT CORP; CITY OF GRAND PRAIRIE; GREG STANKAVICH; PAULA
FLOWERDAY; CHARLES HALLAM; TOM NEELY; JOHN DOE, Lone Star Park
Employee (LSPE) #1-#2 in their individual capacities; JOHN DOE,
Grand Prairie Police Officers (cops), #1-#4, in their individual
capacities; JOHN DOE, ATF Agents (atf), #1-#2 in their individual
capacities
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CV-658
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Fernando Govea, proceeding pro se,
appeals the district court’s judgment dismissing his claims. For
the reasons that follow, we AFFIRM.
*
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this opinion should not be published and is not precedent except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.
1
I. Factual Background
In his complaint, plaintiff-appellant Fernando Govea
(“Govea”) alleges the following facts.1 Govea attended the horse
races at Lone Star Park in Grand Prairie, Texas, on the day
before the facility was to host the Breeders’ Cup, a national
horse racing event. While sitting in the viewing area, Govea
sketched some of the architectural elements of the facility. Two
security guards investigated, and Govea showed them his drawings,
which also included images of pigs in military uniforms and human
victims of a U.S. bombing. When the police arrived, Govea went
to a room where he was frisked and questioned further. Some of
the questions concerned Govea’s political and religious beliefs
as reflected in the drawings. Ultimately, Govea was escorted out
of the facility, and agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (“ATF”) conducted a dog sniff and visual
inspection of Govea’s van.
Govea filed suit alleging federal causes of action under 42
U.S.C. § 2000a-3, § 1983, and § 1985, seeking damages, injunctive
relief, and declaratory relief, as well as state law claims for
theft, unlawful restraint, discrimination, and breach of
contract. The district court dismissed Govea’s federal claims
1
Govea’s complaint comprises seventy-two single-spaced
pages of long passages mixing arguments, facts, religious text,
and legal quotes, but the relevant facts are compiled near the
beginning of the complaint.
2
and declined to retain jurisdiction over Govea’s state claims.2
II. Standard of Review
Our review of a district court’s grant of a 12(b)(6) motion
is de novo. Martin K. Eby Constr. Co. v. Dallas Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004). In this inquiry, we
“accept all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999) (per curiam). Because Govea is
appearing pro se, we hold his complaint “‘to less stringent
standards than formal pleadings drafted by lawyers.’” Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting
Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). However,
even when a plaintiff is proceeding pro se, “‘the complaint must
contain either direct allegations on every material point
necessary to sustain a recovery . . . or contain allegations from
which an inference fairly may be drawn that evidence on these
material points will be introduced at trial.’” Campbell v. City
of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (quoting 3 WRIGHT
2
The individual capacity claims against the police
officers are not before this court, as the record does not
reflect that Govea ever identified the police officers or served
them, and neither the officers nor the city have filed anything
on the officers’ behalf. See FED. R. CIV. P. 4; Attwell v.
LaSalle Nat’l Bank, 607 F.2d 1157, 1159 (5th Cir. 1979).
Further, Govea has not briefed any error related to this issue,
and any argument that these claims were improperly dismissed has
been abandoned. See FED. R. APP. P. 28(a)(9)(A); St. Paul Mercury
Ins. Co. v. Williamson, 224 F.3d 425, 445 (5th Cir. 2000); Price
v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).
3
& MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1216 at 156-59).
This court need not “‘conjure up unpled allegations or construe
elaborately arcane scripts to’ save a complaint.” Id. (quoting
Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)).
We review the district court’s decision to decline jurisdiction
over state claims for abuse of discretion. Parker & Parsley
Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir.
1992).
III. Discussion
As an initial matter, Govea’s claims for injunctive and
declaratory relief were properly dismissed, because Govea has
made no allegations that would entitle him to such relief. See
Bass v. Parkwood Hosp., 180 F.3d 234, 245 (5th Cir. 1999)
(“[T]here is no allegation suggesting that [Plaintiff] is likely
to again suffer from [Defendants’] discriminatory actions.”);
Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir.
1998); Adams v. McIlhany, 764 F.2d 294, 299 (5th Cir. 1985).
This also disposes of Govea’s § 2000a-3 claims, as the statute
only allows prospective relief, not damage awards. See 42 U.S.C.
§ 2000a-3; Bass, 180 F.3d at 244.
In the remaining claims, Govea has not only sued government
agents and entities, but private parties as well. Govea’s § 1983
claims against these defendants were properly dismissed because
he failed to allege any facts that could conceivably support the
4
requisite state action under color of law. See Morris v. Dillard
Dep’t Stores, Inc., 277 F.3d 743, 747-48 (5th Cir. 2001)
(discussing the state action requirement). Govea has alleged
facts showing not the existence of a preconceived plan for
abdication of state authority to the private parties, but rather
facts showing that the government actors independently
investigated Govea with minimal involvement by the private
parties. These allegations are insufficient to establish state
action. See id. at 749; Sims v. Jefferson Downs Racing Ass’n,
Inc., 778 F.2d 1068, 1078-79 (5th Cir. 1985); see also Lansing v.
City of Memphis, 202 F.3d 821, 833 (6th Cir. 2000). And it is
well established that the facts alleged by Govea are insufficient
to show a “symbiotic” relationship between Lone Star Park and
government entities. See Fulton v. Hecht, 545 F.2d 540, 541-43
(5th Cir. 1977) (holding similar facts insufficient to show state
action by a greyhound race park); see also Rendell-Baker v. Kohn,
457 U.S. 830, 842-43 (1982); Jackson v. Metro. Edison Co., 419
U.S. 345, 350 (1974). Because Govea has alleged no other facts
that could show “a sufficiently close nexus between the State and
the challenged action of the [private entities] so that the
action of the latter may be fairly treated as that of the State
itself,” Jackson, 419 U.S. at 351, his § 1983 claims against the
private defendants were properly dismissed.
Although Govea’s § 1985 claims do not require state action,
they do require a conspiracy to discriminate based on “some
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class-based animus.” See 42 U.S.C. § 1985; Newberry v. E. Tex.
State Univ., 161 F.3d 276, 281 (5th Cir. 1998). Dismissal of
these claims against all defendants was proper because Govea has
not alleged a conspiracy, a class-based animus, or any facts that
would show either.
Additionally, Govea’s failure to allege the existence of a
relevant municipal policy or custom, or any facts showing such a
policy or custom, renders appropriate the dismissal of his claims
against the City of Grand Prairie and the Grand Prairie Sports
Facilities Development Corp. Monell v. Dep’t of Social Servs.,
436 U.S. 658, 691-94 (1978); Meadowbriar Home for Children, Inc.
v. Gunn, 81 F.3d 521, 532-33 (5th Cir. 1996). Govea’s vague
allegations that the City of Grand Prairie has racially
disproportionate rates of traffic stops are irrelevant to his
claims here. And although Govea generally alleges that the city
failed to consider the legality of security practices and
training, he does not allege that this failure has anything to do
with the actions of the police officers here.
Govea’s claims against the ATF were also properly dismissed,
as Bivens actions are unavailable against federal agencies. FDIC
v. Meyer, 510 U.S. 471, 486 (1994). Further, because § 1983
claims are unavailable against state agencies and state officials
acting in their official capacities, dismissal of those claims
against the Texas Racing Commission, as well as Paula Flowerday,
Charles Hallam, and Tom Neely in their official capacities, was
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correct. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989); Brandley v. Keeshan, 64 F.3d 196, 200 (5th Cir. 1995).
It is unclear whether Govea also intended to sue Paula
Flowerday, Charles Hallam, and Tom Neely in their individual
capacities, but regardless, these claims were properly dismissed.
Govea’s conclusory deliberate indifference claims are unconnected
to the actual constitutional violations he claims occurred; he
merely alleges a general, unrelated deficiency in the job
performance of state employees. Moreover, Govea’s due process
claims are unfounded, as the hearing he sought requires expulsion
under a rule of the Texas Racing Commission, which he did not
allege. TEX. REV. CIV. STAT. ANN. art. 179e, § 13.02 (Vernon Supp.
2005). Govea also asserts no coherent legal basis for his claim
that the Equal Protection Clause of the Fourteenth Amendment was
violated by the officials’ failure to revoke Lone Star Park’s
racing license.
Govea’s individual capacity claims against the ATF agents
were properly dismissed as well. The ATF agents asserted a
qualified immunity defense and Govea failed to meet the
requirement “that plaintiffs suing governmental officials in
their individual capacities must allege specific conduct giving
rise to a constitutional violation.” Anderson v. Pasadena Indep.
Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). Specifically,
Govea’s claims under the First, Fifth, and Fourteenth Amendments
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are conclusory and unsupported by any factual allegations, and
Govea’s Fourth Amendment claim fails to allege any facts that
could possibly show an unlawful search or seizure on the part of
the ATF. See, e.g., United States v. Seals, 987 F.2d 1102, 1106
(5th Cir. 1993) (“A dog ‘sniff’ is not a search.”); United States
v. Price, 869 F.2d 801, 804 (5th Cir. 1989) (holding that “a
visual inspection of the vehicle, which included looking . . .
under the vehicle” was not a search “[b]ecause the items observed
were in plain view”). Even under the standard pleading
requirement, these allegations would be insufficient to withstand
a motion to dismiss.3
Finally, the district court did not abuse its discretion in
declining to retain jurisdiction over Govea’s state law claims.
The district court’s consideration of judicial economy,
convenience, fairness, and comity was well within its discretion.
Parker & Parsley Petroleum Co., 972 F.2d at 586-87.
IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment.
3
Because we resolve this appeal on the grounds detailed
above, we do not reach the question of whether this court should
revisit the res judicata effect of a dismissal under 28 U.S.C.
§ 1915(e)(2).
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