IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51054

Summary Calendar

JUAN FEBRES CARRASCO,

Plaintiff-Appellant

v.

MICHAEL O’TOOLE; EKPSZ, doing business as Texas Final Judgment, 

L.L.C.,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:12-CV-1127

Before JOLLY, DENNIS, and ELROD, Circuit Judges.

PER CURIAM:*

Pro se plaintiff-appellant Juan Febres Carrasco appeals the take nothing 

judgment following a jury trial in favor of defendant-appellee Michael O’Toole, 

who represents himself in this appeal. Carrasco also appeals the denial of his 

motion for a default judgment against defendant Texas Final Judgments, LLC. 

His complaint alleged that the defendants violated several provisions of the 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 23, 2015

Lyle W. Cayce

Clerk

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Fair Debt Collection Practices Act (FDCPA), as well as the Texas Debt 

Collection Practices Act and the Texas Deceptive Trade Practices Act. We

liberally construe the filings of pro se litigants. Grant v. Cuellar, 59 F.3d 523, 

524 (5th Cir. 1995).

Carrasco contends that the jury was instructed to consider the “wrong 

evidence” in evaluating whether O’Toole was liable for making misleading 

representations in violation of the FDCPA. The court instructed the jury to 

consider two letters mailed by O’Toole on January 3, 2012, although the 

evidence reflected that one of the letters was mailed December 3, 2011. The 

evidence showed that O’Toole did not caution Carrasco in the December 3, 

2011, letter that O’Toole was “attempting to collect a debt and that any 

information obtained [would] be used for that purpose,” a purported violation 

of the FDCPA. See 15 U.S.C. § 1692e(11). 

Because Carrasco did not object to the jury instruction, we review for 

plain error. See FED. R. CIV. P. 51(d)(2); Jimenez v. Wood County, 660 F.3d 841, 

847 (5th Cir. 2011) (en banc). We are “exceedingly deferential to the trial court”

when reviewing an instruction for plain error. Fiber Systems Int’l, Inc. v. 

Roehrs, 470 F.3d 1150, 1158 (5th Cir. 2006) (internal quotation marks and 

citation omitted). Carrasco must show an error that is clear or obvious that 

affects his substantial rights and also show that “failing to correct the error 

would seriously impact the fairness, integrity, or public reputation of judicial 

proceedings.” Id.

Even assuming that the district court clearly or obviously erred in 

referencing two January 3, 2012, letters instead of directing the jury to 

consider the letter dated December 3, 2011, Carrasco fails to show that his 

substantial rights were affected. He points to no evidence that he was entitled 

to actual or statutory damages under 15 U.S.C. § 1692k for the alleged 

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violation of § 1692e(11). He erroneously alleges instead that O’Toole was 

strictly liable for damages. See § 1692k(a)(1), (a)(2)(A). Without showing that 

his substantial rights were affected, he fails to establish plain error. See 

Jimenez, 660 F.3d at 847; Fiber Systems, 470 F.3d at 1158. 

Next, Carrasco contends that the district court erred in refusing to 

instruct the jury concerning the prohibitions in 15 U.S.C. § 1692g against

“overshadowing” the 30-day period described in the important notice and 

failing to cease collection activities where the debt has been disputed; the 

requirements of the Texas debt collection statutes; and the requirement that 

the debt collector caution the debtor that he is attempting to collect a debt and 

that any information obtained will be used for debt collection purposes. 

Carrasco also contends that the district court should have instructed the jury 

concerning actual damages. We find no error in the district court’s refusal to 

instruct the jury on overshadowing and the requirement to cease collection 

efforts if the consumer disputes the debt within the 30-day notice period. There 

was no evidence in the record disputing O’Toole’s testimony that he complied 

with the requirements of § 1692g. See Kanida v. Gulf Coast Med. Pers. LP, 363 

F.3d 568, 578-80 (5th Cir. 2004); Syrie v. Knoll Int’l, 748 F.2d 304, 310 (5th Cir. 

1984). 

With respect to the argument that the district court should have 

instructed the jury on the Texas law claims, Carrasco neglects to mention that 

the district court granted judgment as a matter of law in favor of O’Toole on 

the claims at the close of his case in chief. Because Carrasco does not challenge

the judgment as a matter of law, we find no error. See Kanida, 363 F.3d at 

578. Nor do we find reversible error in the court’s refusal to instruct the jury 

that a debt collector’s initial communication to the consumer must include 

what has been called the “mini Miranda” warning required by § 1692e(11), as

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Carrasco points to no evidence in the record suggesting that he was entitled to 

damages resulting from the absence of such a warning from the letter dated 

December 3, 2011. See Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230, 

241 (5th Cir. 2014) (declining to correct a harmless error). Similarly, we find 

no reversible error in the district court’s refusal to instruct the jury on the issue 

of actual damages, as there is no evidence in the record before this court that 

Carrasco suffered any actual damages. See Kanida, 363 F.3d at 578-80; Syrie, 

748 F.2d at 310. To the extent Carrasco also claims that the district court 

erred in failing to give other instructions that he did not request in the district 

court, he is barred from raising such a complaint here. See Kanida, 363 F.3d 

at 580.

Carrasco also alleges that O’Toole violated the FDCPA by advising him 

that he had 30 days to dispute the debt without knowing that a foreclosure sale 

was scheduled during that time and by deliberately mailing a response to 

Carrasco’s validation letter to the wrong address. However, Carrasco does not 

suggest any related error by the district court. We are a “court of error . . . 

charged only with determining whether the errors of fact and law asserted by 

appellants present valid reasons for reversing the results reached by the 

district court and the jury.” Stinnett v. Colo. Interstate Gas Co., 227 F.3d 247, 

260 (5th Cir. 2000). We will not undertake a sua sponte effort to discover any 

error by the district court concerning these alleged violations of the law. See 

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (noting that even pro se 

litigants must brief arguments to preserve them); Brinkmann v. Dallas Cnty. 

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (declining to raise and 

address legal issues the appellant failed to assert). 

Additionally, Carrasco suggests that the district court was biased 

against him, although he fails to point to anything in the record suggesting 

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such a bias. Wholly unsupported claims of judicial misconduct fail to establish 

any reversible error. See, e.g., Mata v. S. San Antonio Indep. Sch. Dist., No. 93-

8182, 1993 WL 413927, 4 (5th Cir. Oct. 15, 1993) (unpublished) (noting that 

charges of judicial misconduct “are serious ones, not to be made lightly or 

recklessly, and certainly not in the absence of any genuine evidence 

whatsoever”). 

Finally, with respect to the district court’s refusal to grant a default 

judgment against Texas Final Judgments, LLC, we note that “[d]efault 

judgments are a drastic remedy, not favored by the Federal Rules and resorted 

to by courts only in extreme situations.” Lewis v. Lynn, 236 F.3d 766, 767 (5th 

Cir. 2001) (internal quotation marks and citation omitted). The district court 

dismissed Carrasco’s claims against Texas Final Judgments because “there 

was no evidence of liability or damages concerning this defendant presented at 

trial.” Carrasco does not challenge the court’s determination, and we find no 

abuse of discretion. See id. at 767-68.

AFFIRMED.

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