McNeil v. Salan
| Decision Date | 14 May 1992 |
| Docket Number | 91-2067,Nos. 91-2041,s. 91-2041 |
| Citation | 961 F.2d 1578 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Kent Arland MCNEIL, Plaintiff-Appellant/Cross-Appellee, v. John Francis SALAN, Chief Prosecutor for Emmet County; Earl Thomas Croton; James N. Erhart; Richard Zink; John Charles Robbins, Staff Writer for Petoskey News-Review; Richard M. Pajtas; Harvey C. Varnum; Emmet County Prosecutor's Office, Emmet County Sheriff's Department, Petoskey News-Review, Defendants-Appellees, Emmet County Prosecutor's Office, Defendant-Appellee/Cross-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KEITH and MILBURN, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.
Plaintiff Kent McNeil, a convicted felon serving a penitentiary sentence, appeals from the district court's grant of summary judgment in favor of defendants John Salan, plaintiff's prosecutor; Earl Croton, an investigating police officer; James Erhart, plaintiff's appointed counsel; John Robbins, a newspaper man; the Petoskey News-Review, Robbins' newspaper; Judges Richard Pajtas and Harvey Varnum; the Emmet County Sheriff's Department; and the Emmet County Prosecutor's office. Plaintiff, acting pro se, brought this action against defendants for violation of 18 U.S.C. § 1962 (Racketeer Influenced and Corrupt Organizations--RICO) and 42 U.S.C. §§ 1983, 1985 and 1986 (Civil Rights Acts). The principal issues on appeal are (1) whether the complaint properly alleges the existence of a RICO "enterprise," (2) whether plaintiff's civil rights claims are barred by the applicable statute of limitations, (3) whether plaintiff's pendent state claims were properly dismissed, and (4) whether this action was barred by a previous judgment against plaintiff in another case. For the reasons that follow, we affirm in part, reverse in part, and remand.
In July 1986, plaintiff was arrested and charged in the Michigan courts with kidnapping, extortion, armed robbery, and assault with intent to do great bodily harm. The charges resulted from the abduction and beating of Roger Skiba for the purpose of extorting money from him. In October 1986, plaintiff pled guilty to armed robbery and assault charges. He withdrew these pleas on March 20, 1987, but again pled guilty on January 11, 1988, this time to kidnapping and extortion charges. He was sentenced to thirteen to twenty years imprisonment on February 17, 1988.
On June 27, 1990, plaintiff filed the instant complaint alleging that the prosecutors, their investigators, the judges, his appointed defense counsel, and the Petoskey News-Review conspired to violate the provisions of 18 U.S.C. § 1962 by committing a pattern of racketeering involving mail and wire fraud. The complaint also charged defendants with violating plaintiff's civil rights and further alleged violations of state law involving extortion, procurement to commit perjury, and perjury.
Motions to dismiss and motions for summary judgment were filed by all the defendants in the case, and on July 27, 1991, the district court granted all motions for summary judgment and dismissal. This timely appeal followed.
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. This court reviews the district court's grant of summary judgment de novo, viewing all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880 (1988). Under Federal Rule of Civil Procedure 12(b)(6), a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. "Whether the district court correctly dismissed [the plaintiff's] claims pursuant to Fed.R.Civ.P. 12(b)(6) is a question of law subject to de novo review." Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir.1987).
The district court dismissed plaintiff's RICO claims because J.A. 82 (emphasis added). The court went on to hold that "while plaintiff may be able to state a cause of action against defendants on various criminal or civil grounds, their actions as demonstrated in the pleadings do not constitute an enterprise pursuant to 18 U.S.C. § 1962." J.A. 83-84 (emphasis added). It therefore appears that the district court granted defendants' motions to dismiss on the ground that plaintiff failed in the pleading of an enterprise.
In support of its decision, the district court noted a line of cases which require that a RICO enterprise be shown to have a structure and existence apart from the mere commission of the predicate acts that constitute the alleged pattern of racketeering activity. E.g., United States v. Turkette, 452 U.S. 576, 585 (1981); United States v. Sanders, 928 F.2d 940, 944 (10th Cir.), cert. denied, 112 S.Ct. 142 (1991); United States v. Kragness, 830 F.2d 842, 855 (8th Cir.1987); United States v. Riccobene, 709 F.2d 214, 223-24 (3d Cir.), cert. denied, 464 U.S. 849 (1983); United States v. Bledsoe, 674 F.2d 647, 664 (8th Cir.), cert. denied, 459 U.S. 1040 (1982). 1 Those cases discuss the requirement that the proof must show the existence of a RICO enterprise separate and apart from the predicate acts which constitute the pattern of racketeering activity. They do not discuss the requirements for pleading the nature or separateness of the enterprise. This court has not yet taken a position on the question whether the enterprise must have an ascertainable structure distinct from that inherent in the pattern of racketeering activity, but it has noted the split of authority on "this troublesome issue." Fleischhauer v. Feltner, 879 F.2d 1290, 1297 n. 4 (6th Cir.1989), cert. denied, 493 U.S. 1074 and 494 U.S. 1027 (1990).
The district court apparently adopted positions of the Third, Eighth, and Tenth Circuits as expressed in the cases noted above. It then went further to hold that a complaint must plead the separateness of the enterprise from the predicate acts in the pattern of racketeering activity in order to survive a motion to dismiss for failure to state a claim. The Fifth Circuit has apparently taken this position in Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (5th Cir.1987), in which it stated that (Citation omitted). See also Manax v. McNamara, 842 F.2d 808, 811 (5th Cir.1988). At least one district court within this circuit has applied these Fifth Circuit cases to require a plaintiff to plead facts sufficient to demonstrate the distinctness of the enterprise. Firestone v. Galbreath, 747 F.Supp. 1556, 1577 (S.D.Ohio 1990).
On the other hand, in Seville Indus. Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 790 (3d Cir.1984), cert. denied, 469 U.S. 1211 (1985), the Third Circuit reversed a case in which the district court had dismissed a plaintiff's complaint because it did not sufficiently allege the separateness of the enterprise. The Third Circuit stated:
In Riccobene this court stated that in order to establish the existence of an enterprise, the government must demonstrate (1) that the enterprise is an ongoing organization with some sort of framework or superstructure for making or carrying out decisions; (2) that the members of the enterprise function as a continuing unit with established duties; and finally (3) the enterprise must be separate and apart from the pattern of activity in which it engages. 709 F.2d at 221-24. The court below ruled that because Seville failed to plead these three attributes, Count One did not state a cause of action under RICO and must be dismissed.
In so ruling, the district court confused what must be pleaded with what must be proved. Riccobene and Turkette certainly stand for the proposition that a plaintiff, to recover, must prove that an alleged enterprise possesses the three described attributes. But neither case speaks to what must be pleaded in order to state a cause of action. The district court erred in applying the Riccobene-Turkette proof analysis to the allegations in Seville's complaint.
We need cite no authority for the proposition that the Federal Rules of Civil Procedure were designed to eliminate the vagaries of technical pleading that once plagued complainants, and to replace them with the considerably more liberal requirements of so-called "notice" pleading. Under the modern federal rules, it is enough that a complaint put the defendant on notice of the claims against him. It is the function of discovery to fill in the details, and of trial to establish fully each element of the cause of action.
In the present case, Seville identified the four entities it believed were enterprises that had been marshalled against it. The rules of pleading require nothing more at this early juncture than that are allegation.
(Citation omitted).
In dismissing plaintiff's complaint, the district court adopted the reasoning of the cases that require proof of a RICO enterprise separate and distinct from the pattern of racketeering. It then required plaintiff, at the pleading stage, to allege this separateness factor. The approach of the Third Circuit in Seville seems more appropriate. The Third Circuit is one of the circuits that requires proof of an enterprise separate and apart from the...
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U.S. v. Hammoud
...Furthermore, even if the Bledsoe line of cases were the law of this Circuit, as the court observed in McNeil v. Salan, 961 F.2d 1578, 1992 WL 102734 (6th Cir. 1992) (unpublished), none of those cases speaks to what must be pleaded in order to state a cause of action, and, therefore, will no......