S. Thomas v. Leroy Baca , 695 F. App'x 325 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
S. A. THOMAS, in both his individual and No. 15-55399
class representative capacities,
D.C. No.
Plaintiff-Appellant, 2:14-cv-07883-R-VBK
v.
MEMORANDUM*
LEROY D. BACA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted June 7, 2017
Pasadena, California
Before: LIPEZ,** BEA, and HURWITZ, Circuit Judges.
S.A. Thomas appeals the district court’s dismissal of his First Amended
Complaint (“FAC”). We have jurisdiction to hear this appeal under 28 U.S.C.
§ 1291 and affirm. Because the parties are familiar with the factual and procedural
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
background, we repeat only those facts necessary to resolve the issues raised on
appeal.
1. Thomas contends that the district court abused its discretion when it
denied his motion to recuse Judge Manuel L. Real. We disagree. In denying the
motion, Judge S. James Otero reasonably determined that any alleged animosity
held by Judge Real against Stephen Yagman, a former attorney acting as a
paralegal for Thomas, did not amount to bias against Thomas, and that Thomas had
failed to provide evidence of any bias by Judge Real against Marion Yagman,
Thomas’s attorney. See United States v. Jacobs, 855 F.2d 652, 656 n.2 (9th Cir.
1988) (per curiam) (citing United States v. Burt, 756 F.2d 1364, 1368 (9th Cir.
1985)).
2. Thomas also contends that the district court erred when it dismissed the
FAC, which alleged constitutional claims and civil RICO1 claims. But, Thomas’s
opening brief presented no argument or record citations to support his contention
that the court erred when it dismissed his constitutional claims. Therefore, Thomas
waived these claims on appeal. See Nilsson, Robbins, Dalgarn, Berliner, Carson
& Wurst v. La. Hydrolec, 854 F.2d 1538, 1548 (9th Cir. 1988) (per curiam); Ninth
Circuit Rule 28-1(b); Fed. R. App. P. 28(a)(8)(A); see also Ashcroft v. Iqbal, 556
U.S. 662, 687 (2009) (holding that mere recitation of “bare elements” of a cause of
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Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1964.
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action is insufficient to survive dismissal).
And, the district court did not err when it dismissed Thomas’s civil RICO
claims. The district court properly dismissed Thomas’s claims against Defendants
in their official capacities, as those claims are properly made against the Los
Angeles County Sheriff’s Department, see Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989), and governmental entities cannot form the necessary criminal
intent to commit a RICO violation, see Pedrina v. Chun, 97 F.3d 1296, 1300 (9th
Cir. 1996). The district court also properly dismissed Thomas’s civil RICO claims
against Defendants in their personal capacities. The FAC proffered legal
conclusions in support of these claims rather than specific factual allegations. N.
Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 583 (9th Cir. 1983) (“Because the
complaint is vague, conclusory, and general and does not set forth any material
facts in support of the allegations, these claims were properly dismissed.”).
3. Thomas next contends that the district court abused its discretion when it
denied his motion for class certification. The district court held that Thomas had
not demonstrated the commonality required by Federal Rule of Civil Procedure
23(a), and Thomas’s opening brief fails to identify which allegations in the FAC
establish commonality. Therefore, Thomas has not demonstrated that reversal is
warranted.
4. Finally, Thomas contends that the district court erred when it refused to
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refund his filing fee. Because Thomas’s opening brief did not present any
argument or citations to the record to support this contention, the issue is also
waived. See Nilsson, 854 F.2d at 1548.
AFFIRMED.
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