Benitez v. Rumage, CIVIL ACTION NO. C-11-208

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: Janis Graham Jack
• Parties: DALIA BENITEZ, Plaintiff, v. JIM RUMAGE, et al, Defendants.
• Docket Number: CIVIL ACTION NO. C-11-208
• Decision Date: 27 July 2011

DALIA BENITEZ, Plaintiff,
v.
JIM RUMAGE, et al, Defendants.

CIVIL ACTION NO. C-11-208

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

Dated: July 27, 2011

ORDER

On Wednesday, July 27, 2011, the Court held a pre-trial conference in the above styled action with the Plaintiff appearing by telephone. Plaintiff failed to serve Defendants Banquete Independent School District and Jim T. Rumage, and thus Defendants did not enter an appearance.

I. Jurisdiction

The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), as Plaintiff brings a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. and the Americans with Disabilities Act, 42 U.S.C. §§ 12102 et seq.

II. Background

Plaintiff brings the following claims against Defendant Banquete Independent School District and Defendant Jim T. Rumage: discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., ("ADEA"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12102 et seq., ("ADA"); mail and wire fraud, 18 USC §§ 1341, 1343; and the Hate Crimes Prevention Act, 18 U.S.C. § 249.

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III. Discussion

A. Mail and Wire Fraud

At the conference, the Court dismissed without prejudice Plaintiff's claims under the mail and wire fraud statutes, 18 USC §§ 1341, 1343, as against both Defendant Banquete Independent School District and Defendant Rumage.

To maintain a claim for wire fraud under § 1341, a plaintiff must show that the defendants participated in a scheme to defraud involving the use of interstate wires for the purpose of executing the scheme, resulting in some intended harm. United States v. Richards, 204 F.3d 177, 207 (5th Cir.2000). Similarly, to establish a claim for mail fraud under § 1343, a plaintiff must demonstrate that the defendants were involved in a scheme to defraud involving the use of mails for the purpose of executing the scheme. United States v. McClelland, 868 F.2d 704, 706 (5th Cir.1989).

However, these statutes do not provide a private cause of action. See Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) cert. denied, 423 U.S. 837 (1975) (no private cause of action under Wire Fraud Act); see also Ryan v. Ohio Edison Co., 611 F.2d 1170, 1178-1179 (6th Cir. 1979) (no implied federal private causes of action accrue to victims of mail fraud). Therefore, the Court dismissed these claims as against both Defendants.

B. Hate Crimes Prevention Act

For the same reason, the Court dismissed without prejudice Plaintiff's claims under the Hate Crimes Prevention Act, 18 U.S.C. § 249, as against both Defendant Banquete Independent School District and Defendant Rumage.

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The "Hate Crimes Prevention Act," 18 USC § 249, "generally provides criminal penalties for intentionally causing bodily injury to another person when the injury was motivated by the actual or perceived religion, race, color, national origin, gender, sexual orientation, gender identity, or disability of the victim." Glenn v. Holder, 738 F.Supp.2d 718, 719-20 (E.D.Mich.,2010).¹ However, the Hate Crimes Prevention Act does not provide for any civil cause of action. See Lee v. Lewis, 2010 WL 5125327, at *2 (E.D.N.C. Oct. 28, 2010) (18 U.S.C. § 249 does not provide "for any civil cause of action that may be raised by private individuals")....