United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3063

___________

Leslie M. Smith, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the District

* of Nebraska.

Dean K. Wampler, M.D.; Wausau *

Insurance Company, also known as * [UNPUBLISHED]

Employers Insurance of Wausau, A *

Mutual Company, *

*

Appellees. *

___________

Submitted: April 12, 2004

Filed: April 19, 2004

___________

Before LOKEN, Chief Judge, RICHARD S. ARNOLD and FAGG, Circuit Judges.

___________

PER CURIAM.

After Leslie M. Smith injured his back at work, Dr. Dean Wampler treated him.

The Nebraska Workers’ Compensation Court held that although Smith injured his

back at work, his temporary total disability was caused by preexisting degenerative

disc disease rather than by the work injury. While Smith’s appeal was pending, he

entered into a worker’s compensation settlement agreement with his employer and its

worker’s compensation carrier, Wausau Insurance Company (Wausau). Smith later
*

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska. 

-2-

brought this civil action against Wampler and Wausau alleging civil violations of the

Racketeer Influenced and Corrupt Organizations Act (RICO), fraud, and bad faith.

The district court*

 granted summary judgment to Wampler and Wausau, concluding

Smith did not allege any racketeering activity against Wampler, and Smith waived

any claims against Wausau in the settlement agreement. The district court declined

to exercise supplemental jurisdiction over state law claims. 

On appeal, Smith contends the district court committed error in granting

summary judgment because Wampler failed to show the absence of a disputed fact

on the RICO claims. Wampler was not required to do so, however, because the

record contains no facts on which Smith could prevail. To state a civil RICO claim

under 18 U.S.C. § 1962(c), Smith must prove the defendants engaged in conduct of

an enterprise through a pattern of racketeering activity. ASA- Brandt, Inc. v. ADM

Inv. Servs., Inc., 344 F.3d 738, 752 (8th Cir. 2003); Handeen v. Lemaire, 112 F.3d

1339, 1347 (8th Cir. 1997). Racketeering activity is defined in § 1961(1) as any act

or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion,

dealing in obscene matter, or dealing in a controlled substance or listed chemical, acts

indictable under certain federal laws, and numerous other offenses. See 18 U.S.C. §

1961(1); Handeen, 112 F.3d at 1353. Having carefully reviewed Smith’s complaint,

we agree with the district court that Smith fails to allege any racketeering activity

within the definition of § 1961(1). Contrary to Smith’s contention, there was not

sufficient evidence in his resistance to the summary judgment motion to show the

predicate acts of mail and wire fraud. At most, Smith alleges common law fraud and

claims of professional malpractice or personal injury, which are not actionable under

RICO. See Guerrero v. Gates, 357 F.3d 911, 920 (9th Cir. 2004); Doe v. Roe, 958

F.2d 763, 767 (7th Cir. 1992); Handeen, 112 F.3d at 1348. Because Smith failed to

allege any racketeering activity, the district court properly granted summary judgment
-3-

on Smith’s RICO claims. Thus, we need not decide whether the RICO claims are

barred by the settlement agreement. 

We affirm the district court.

______________________________