* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30523

Summary Calendar

KELVIN WELLS,

Plaintiff-Appellant,

v.

MUNIR ALI; MELVA CAVANAUGH; and TOM HANLON

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 06-400-JVP-DLD

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

On June 8, 2006, Plaintiff-Appellant Kelvin Wells (“Wells”) filed suit

against Defendants-Appellees Melva Cavanaugh (“Cavanaugh”), Munir Ali

(“Ali”), and Tom Hanlon, Sr. (“Hanlon”) in the United States District Court for

the Middle District of Louisiana, alleging violations of his civil rights under 42

U.S.C. § 3601 et seq (the Fair Housing Act, or “FHA”), 42 U.S.C. § 1983, and

parallel state law in connection with Ali’s eviction action against Wells.

Cavanaugh and Hanlon moved for dismissal, and Ali moved for summary

United States Court of Appeals

Fifth Circuit

F I L E D

December 23, 2008

Charles R. Fulbruge III

Clerk
No. 08-30523

** Even if Wells’s brief were understood to appealthe adverse judgments on his parallel

state-law claims, the same immunity doctrines, defects in subject matter jurisdiction and

service of process, and factual insufficiencies that bedeviled Wells below, see infra, would

require dismissal of those state claims in this court as well.

2

judgment. United States District Judge John V. Parker dismissed with

prejudice the claims against Cavanaugh on March 29, 2007, pursuantto Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6), and dismissed Hanlon from the

suit without prejudice on October 26, 2007, pursuant to Rule 4(m), on the

grounds that Wells failed to serve him properly. Wells appealed, but at that

time, no judgment had yet been rendered below on one of his claims (the one

against Ali), so we dismissed all claims without prejudice for lack of jurisdiction.

See Wells v. Ali, No. 07-31059, slip op. (5th Cir. Jan. 8, 2008) (citing Thompson

v. Betts, 754 F.2d 1243, 1245 (5th Cir. 1985)). The district court granted

summary judgment in Ali’s favor on May 13, 2008. Wells now appeals.

In substance, Wells’s pleadings contend that defendants racially

discriminated against him in violation of the above-mentioned federal statutes.

Wells failed to brief his state-law claims; accordingly, they are waived.** Ruiz v.

United States, 160 F.3d 273, 275 (5th Cir. 1998). We affirm the judgments of the

district court in their entirety.

I. Wells’s Claims against Cavanaugh

Wells claimed that Cavanaugh, a Justice ofthePeace in East Baton Rouge

Parish in Louisiana, violated his rights under § 1983 and the FHA in connection

with his eviction. Specifically, Wells’s complaint alleges that Cavanaugh “had

plaintiff evicted” and “is still holding monies” related to those eviction

proceedings. In addition, his brief claims she called Wells, who is AfricanAmerican, a repugnant racial epithet and “attack[ed] him [and] snatch[ed] [sic]

the door as he was leaving [her office] during her tirade.” Wells’s claims against

Cavanaugh were dismissed for lack of subject matter jurisdiction, failure to state
No. 08-30523

3

a claim upon which relief can be granted, and on the basis of judicial and

Eleventh Amendment immunity.

We review dismissals under Rules 12(b)(1) and 12(b)(6) de novo, and

according to the same standard. Fernandez-Montes v. Allied Pilots Ass’n, 987

F.2d 278, 284 (5th Cir. 1993); Benton v. United States, 960 F.2d 19, 21 (5th Cir.

1992). That standard requires us to take the factual allegations of the complaint

as true and resolve ambiguities in the plaintiff’s favor. Benton, 960 F.2d at 21.

“[C]onclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss,” however. FernandezMontes, 987 F.2d at 284. We construe pro se litigants’ pleadings liberally,

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), but pro se litigants are not

exempt from compliance with the relevant rules of procedure and substantive

law, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981).

A. Judicial Immunity

Even taking Wells’s bare, unsupported allegations against Cavanaugh as

true, his suit against her would be barred. Judges enjoy absolute immunity from

suit for acts undertaken in their judicial capacity. Mireles v. Waco, 502 U.S. 9,

10 (1991) (finding judicial immunity to be absolute and “not overcome by

allegations of bad faith or malice” or corruption). Because Wells alleges conduct

in connection with Cavanaugh’s official acts, his claims trigger judicial

immunity. The Supreme Court has explained that two limited exceptions to this

doctrine exist: acts the judge takes in a non-judicial capacity, and “actions,

though judicial in nature, taken in the complete absence of all jurisdiction.” Id.

at 11–12. Neither exception applies here.

According to Wells’s pleadings, Cavanaugh (1) ordered him evicted and

held money relating to the eviction proceeding, and (2) slammed shut the door

to her chambers and hurled a racist epithet at him while ordering him out of her

chambers. The first pair of Cavanaugh’s actions appear to have been a plain

exercise of Cavanaugh’s judicial authority. Although he claims her acts
No. 08-30523

4

exceeded her jurisdiction (he does not specify which acts, but we will consider

him to have alleged that all did), Wells offers no legal support whatsoever for

that claim.

The district court properly found that the second pair also constituted

official acts because they allegedly arose out of Wells’s visit to Cavanaugh’s

official chambers. As a result, the repugnant nature of the word Wells claims

Cavanaugh used and her alleged slamming of the door would not strip her of

judicial immunity, as Wells claims both acts occurred in the course of his visit

to the judge’s chambers about his case before her, and arose from that visit.

They therefore satisfy this circuit’s four-part judicial immunity test. See

Ammons v. Baldwin, 705 F.2d 1445, 1447 (5th Cir. 1983). This is so even though

the use of a racial epithet by a sitting judge would be outrageous and an insult

to both a litigant and the judge’s own office. In addition, although threats of

physical force by a judge do not constitute a normal judicial function entitled to

immunity, slamming a door falls far short of such a threat. See, e.g., id. at 1448

(affirming dismissal of § 1983 action because plaintiff failed to allege the judge

placed him “in fear of imminent harm, or that [the judge] took any actions

indicating an immediate intent to carry out the alleged threats”).

Wells’s citation to Hafer v. Melo, 502 U.S. 21, 31 (1991) for the proposition

that Cavanaugh may be sued notwithstanding the Eleventh Amendment’s grant

of immunity is inapposite. Hafer states that, in contrastto the executive officers

whose Eleventh Amendment immunity Congress abrogated in some

circumstances under § 1983 (pursuant to § 5 of the Fourteenth Amendment),

“judges carrying out their judicial functions” enjoy “absolute immunity . . . for

their official actions.” Id. at 29.

B. Other Mandatory Grounds for Dismissal

Even if judicial immunity did not require dismissal, however, this court

would have no choice but to dismiss Well’s attempt to relitigate his evictionrelated claims in federal court under the Rooker-Feldman doctrine, and all
No. 08-30523

5

claims against her on grounds of Eleventh Amendment sovereign immunity, for

reasons explained in the Magistrate Judge’s thorough report of December 6,

2006, which the district court adopted. See Exxon Mobil Corp. v. Saudi Basic

Industries Corp., 544 U.S. 280, 283 (2005) (holding that federal district courts

are barred by the Rooker-Feldman doctrine from hearing cases, like Wells’s,that

are “brought by state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments”) (applying

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) and

Rooker v. Fidelty Trust, 263 U.S. 413 (1923)); Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 71 (1989) (holding that a suit against a state official acting

in her official capacity constitutes a suit againstthe state and is therefore barred

by the Eleventh Amendment, even if brought pursuant to § 1983).

For these reasons, the district court was correct to dismiss all claims

against Cavanaugh.

II. Wells’s Claims against Hanlon

The district court dismissed all claims against Hanlon because he was not

properly served. Although Wells claims this dismissal was erroneous because

“Federal Marshals did not complete [their] mission when their orders were to

serve Tom Hanlon,” and because “they [presumably the district court] ha[d] an

affidavit confirming service” on Hanlon, these claims are unavailing. A review

of Rule 4 ofthe Federal Rules of Civil Procedure, which prescribes the procedure

for properly serving a defendant with process, reveals that the district court had

no choice but to reach this result. The requirements of Rule 4 are phrased in

plainly mandatory language. To comply, the plaintiff must ensure that the

summons be signed by the clerk of the court and bear the court’s seal (Rule

4(a)(1)(F-G)); state the time within which the defendant must appear and defend

the allegations (Rule 4(a)(1)(D)); and name the court and the parties (Rule

4(a)(1)(A)). Although, as Wells contends, he satisfied some of the other
No. 08-30523

6

conditions of service of process, he failed to satisfy these requirements. He

complains of insufficient help from the U.S. Marshals, but the ultimate

obligation to comply with Rule 4 lies with him, not the Marshals. Therefore the

district court’s dismissal of all claims against Hanlon was correct.

III. Wells’s Claims against Ali

Wells’s claims against Ali were dismissed by summary judgment. Ali, like

Wells, proceeds pro se. We will treat Ali’s papers, titled “Appellee’s Brief and

Motion to Dismiss the Case,” as a response to Wells’s appeal of the grant of

summary judgment.

The court “review[s] grants of summary judgment de novo, applying the

same legal standard used by the district court.” Chacko v. Sabre, Inc., 473 F.3d

604, 609 (5th Cir. 2006). Summary judgment is proper “if the pleadings,

discovery and disclosure materials on file, and any affidavits show that there is

no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). “After adequate time for

discovery and upon motion,” summary judgment is appropriate “against a party

who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of

proof attrial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Gunaca

v. Texas, 65 F.3d 467, 469 (5th Cir. 1995). The moving party “must ‘demonstrate

the absence of a genuine issue of material fact,’ but need not negate the elements

ofthe nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (quoting Celotex, 477 U.S. at 323-25). If the moving party “fails

to meet this initial burden, the motion must be denied, regardless of the

nonmovant’s response.” Id. at 1075.

Wells claims Ali discriminated against him because of his race and

disability in the provision of housing, in violation of the FHA. The evidence

offered below revealed the following. Wells rented an apartment from Ali in

Baton Rouge, Louisiana,first by written lease (from January 11, 2005 until June
No. 08-30523

***Although this court is not reviewing HUD’s decision here, this letter is part of the

record.

7

30, 2005) and then on a month-to-month basis. The lease stipulated that Wells

would have two parking places on the premises. After the lease was signed,

Wells began parking three vehicles there. In addition, Wells requested at some

point that Ali make repairs to Wells’s apartment (specifically, that he arrange

for mold to be removed), which Ali appears to have done but not to Wells’s

satisfaction. Wells failed to pay his September 2005 rent on time and failed to

pay an assessed late fee. Ali notified Wells in writing that he was not renewing

his lease, and gave him a 30-day Notice to Vacate by November 1, 2005. The

reasons given were Wells’s violation of the lease’s provision regarding the

number of parking places and his non-payment of the late fee. Wells responded

that he would not remove the third vehicle under any circumstances. He also

claimed that Ali had made disparaging comments to him about his disability

(namely, that he did not look disabled) and had called him by the same racial

epithet as Cavanaugh.

On November 4, 2005, Ali filed a Petition of Eviction and Order; ten days

later, a judgment of eviction was granted, though it was later reversed. Wells

also filed an FHA complaint with the Department of Housing and Urban

Development (“HUD”) on June 14, 2006. After conducting an investigation,

HUD issued a “Determination of No Reasonable Cause” letter, notifying Wells

thatthe agency had no reasonable cause to believe that a discriminatory housing

practice had occurred.*** HUD found that between June 2005 and June 2007, Ali

had thirteen tenants, all African-American, of whom eight were evicted for nonpayment of rent, four voluntarily moved out, and one failed to sign the lease. In

addition, at the time of HUD’s report, Ali was renting to three individuals; all

were African-American, all were disabled, and all paid their rents on time. HUD

further found that there were no disinterested witnesses to the events of which

Wells had complained. On these facts, the district court found that Wells had
No. 08-30523

8

failed to offer evidence of a genuine issue of material fact on his FHA claim

against Ali sufficient to withstand summary judgment. We agree.

CONCLUSION

For the reasons stated above, the judgments of the district court are

AFFIRMED.