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Raz v. US Marshal Service, 02-30054 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 02-30054 Visitors: 23
Filed: Sep. 06, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-30054 Summary Calendar YORAM RAZ, Plaintiff-Appellant, versus J.R. OAKES; TED BARBE; JULIA E. BLEWER; COOK, YANCEY, KING & GALLOWAY; U.S. MARSHAL SERVICE; KARLA COOPER; MICHAEL J. MORIARTY, Defendants-Appellees. - Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CV-399 - September 5, 2002 Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:* Yoram Raz, a frequent filer
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-30054
                         Summary Calendar



YORAM RAZ,

                                         Plaintiff-Appellant,

versus

J.R. OAKES; TED BARBE; JULIA E. BLEWER;
COOK, YANCEY, KING & GALLOWAY; U.S. MARSHAL SERVICE;
KARLA COOPER; MICHAEL J. MORIARTY,

                                         Defendants-Appellees.

                        --------------------
           Appeal from the United States District Court
               for the Western District of Louisiana
                         USDC No. 01-CV-399
                        --------------------
                          September 5, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Yoram Raz, a frequent filer of pro se federal litigation in

the Western District of Louisiana, appeals the district court’s

dismissal of an action brought against the U.S. Marshal Service

(USMS), individual deputy marshals, and a private lawyer and her

firm who were representing Raz’s opponent in another federal

civil rights case (the Storey action).   The lawsuit consists of


     *
        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that this opinion should not be published and is not precedent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.
                             No. 02-30054
                                  -2-

claims under the Privacy Act, 5 U.S.C. § 551a, and Bivens v. Six

Unknown Named Fed. Agents, 
403 U.S. 388
(1971).     Raz also

asserted that the USMS concealed documents Raz had requested

through the Freedom of Information Act (FOIA).

     Raz’s claims are related to what he contends is a long-

lasting and pervasive conspiracy involving the FBI, these

defendants, and many others, to spy on, harass, and persecute him

for no apparent reason.     The claims more directly arise from the

defendants’ actions after Raz made an unannounced appearance in

the chambers of the late Chief Judge Henry Politz and attempted

to partially disrobe in order to show the court’s staff injuries

allegedly inflicted by the Storey defendants.     The district court

dismissed all of Raz’s claims on the defendants’ motions to

dismiss under FED. R. CIV. P. 12(b)(6) or for summary judgment

under FED. R. CIV. P. 56.

     Raz contends that he was denied due process because the

district court failed to afford him an opportunity to file

objections after the entry of the memorandum ruling and before

the entry of final judgment.    Raz refers to the requirements of

28 U.S.C. § 636(b)(1)(C) that apply when a magistrate judge

issues a report and recommendation.     Those requirements are

inapplicable in this case because the district judge ruled

directly on the motions for summary judgment after giving Raz

ample opportunity to oppose the motions, which Raz did.
                             No. 02-30054
                                  -3-

     Raz contends that the district court’s ruling is invalid

because it was based on the original complaint rather than the

amended complaint.   However, the district court stated that it

did examine Raz’s amended complaint in reaching its decision,

even though the amended complaint was not substantially different

from the original.   If there was any error, it was harmless.

     Raz complained that the USMS violated the Privacy Act, 5

U.S.C. § 552a(b), by disclosing to the FBI and to a private-

lawyer defendant records of the investigation of the incident in

the judge’s chambers.   Raz has briefed only whether the

disclosure to the private defendant was “intentional and willful”

so as to establish liability under the Privacy Act.     See 5 U.S.C.

§ 552a(g)(4); Johnson v. Department of Treasury, I.R.S., 
700 F.2d 971
, 982 (5th Cir. 1983).    Raz presented no summary-judgment

evidence to contest a USMS affidavit stating that the disclosure

was merely negligent and not willful or intentional.    Moreover,

Raz did not adduce any summary-judgment evidence indicating that

he suffered any “actual damages” as a result of the disclosure.

See 
Johnson, 700 F.2d at 972
.

     Raz argues on appeal that the USMS violated the FOIA by

concealing his USMS investigation file.     The record shows that

Raz eventually received the file, albeit through another

defendant.   Once Raz obtained the record, his FOIA claim for its

production became moot.     See Lovell v. Alderete, 
630 F.2d 428
,

430-31 (5th Cir. 1980).   Raz’s challenge to the timeliness of the
                           No. 02-30054
                                -4-

disclosure likewise was mooted by the production of the records.

See Voinche v. F.B.I., 
999 F.2d 962
, 963 (5th Cir. 1993).

     The district court correctly held that Raz’s Fourth and

Fifth Amendment claims arising from the search following his

visit to the judge’s chambers were time-barred under the one-year

limitation period applicable to Bivens actions in Louisiana.     See

Alford v. United States, 
693 F.2d 498
, 499 (5th Cir. 1982).    If

it is assumed that Raz raised a contested issue of fact as to the

timing of his knowledge of the copying of certain items seized in

the search, he has nonetheless failed to articulate any

cognizable theory of recovery or constitutional violation,

particularly in light of his failed Privacy Act claim.

     Raz contends that the district judge should have been

recused on grounds of bias.    His arguments are based on adverse

rulings which, without more, alone do not call into question the

district judge’s impartiality.    See Liteky v. United States, 
510 U.S. 540
, 550-51 (1994); United States v. Landerman, 
109 F.3d 1053
, 1066 (5th Cir. 1997); United States v. Mizell, 
88 F.3d 288
,

300 (5th Cir. 1996).   We decline to consider other recusal

arguments raised for the first time on appeal.     See Stewart Glass

& Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 
200 F.3d 307
, 316-17 (5th Cir. 2000).   We also decline to consider

arguments that Raz attempts to adopt by reference to pleadings

filed in the district court.     See Yohey v. Collins, 
985 F.2d 222
,

224-25 (5th Cir. 1993).
                             No. 02-30054
                                  -5-

     Raz asserted various claims of impeded access to the

courthouse based on broad allegations of harassment, insults,

threats, humiliation, intimidation, and excessive security checks

by mostly unnamed court security personnel.    He complained that

these acts prevented him from concentrating in the court library,

degraded his status in the eyes of court personnel, and will

prejudice him before a jury if he ever goes to trial.    Raz does

not assert that any specific named defendant committed any

particular act.   Rather, he alleges “elaborate schemes of covert

surveillance and sting-operations.”    Raz’s only specific

allegation is that two U.S. Marshals responded “harshly” to his

complaints about court security surveillance.

     Raz’s claims fail because he has not alleged acts that

amount to a constitutional violation, and because he has not

carried his summary-judgment evidentiary burden of showing a

contested issue of material fact.    The federal defendants filed

affidavits attesting that they have not prevented Raz from

entering or using the court house.    In response, Raz relied on

his pleadings and offered only unsupported conclusions of

wrongdoing without showing that any defendant prevented him from

entering or moving about the court house or from filing or

pursuing any legal remedy.    His unsupported conclusions and mere

speculation do not forestall summary judgment.    Michaels v.

Avitech, Inc., 
202 F.3d 746
, 754-55 (5th Cir. 1999).
                           No. 02-30054
                                -6-

     In addition, the federal defendants were protected from suit

under the qualified-immunity doctrine because their actions were

objectively reasonable in light of their duty to protect court

personnel and property and the information possessed by the

officers concerning the incident in the judge’s chambers.       See

Anderson v. Creighton, 
483 U.S. 635
, 641 (1987).

     Raz did not brief issues pertaining to the district court’s

dismissal of the invasion-of-privacy claims brought against all

federal and private defendants under Bivens and the Privacy Act.

In addition, he made only passing references in his appeal brief

to the general conspiracy claim against the private lawyer

defendants.   Raz waived appeal of all of these issues by failing

to brief them.   See 
Yohey, 985 F.2d at 225
.   Further, Raz’s

passing references to the private defendants in his brief are

mere conclusions and speculation about the broad and pervasive

conspiracy Raz believes is targeting him and which may aptly be

characterized as fanciful, fantastic, and delusional.    See

Michaels, 202 F.3d at 754-55
(conclusions and speculation

insufficient to defeat summary judgment).

     The judgment of the district court is AFFIRMED.

     Raz has moved for the recusal of the district judge from all

future litigation involving Raz.   He has also moved for a change

of venue and for an award of the costs of this appeal.   These and

any other outstanding motions are DENIED.

     JUDGMENT AFFIRMED; MOTIONS DENIED

Source:  CourtListener

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