FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 July 08, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15079

Non-Argument Calendar

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D. C. Docket No. 03-00286-CV-J-25-HTS

ANDREW P. MOORE, II, an individual, 

Plaintiff-Appellant, 

versus 

JOHN E. POTTER, and successors, officially, 

MARSHA HARRISON, individually, et al., 

Defendants-Appellees. 

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Appeal from the United States District Court

for the Middle District of Florida

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(July 8, 2005)

Before ANDERSON, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Andrew P. Moore, II, proceeding pro se, appeals the district court’s order

granting the defendants’ motions to dismiss his second amended complaint. A
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U.S. Postal Service employee, Moore has alleged that appellees engaged in a litany

of criminal acts, conspiracies and violations of his constitutional rights, all arising

out of a workers’ compensation dispute. Moore also appeals various discovery

orders and the district court’s denial of his Rule 60(b) motion. Because we find

Moore’s arguments without merit, we affirm the district court.

I. Dismissal of Complaint for Failure to State a Claim

Moore argues that the district court erred in dismissing his complaint. His

seven-count, second amended complaint alleged: (1) violations of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq.,

(Counts One and Two); (2) a claim for false light invasion of privacy, (Count

Three); (3) a Bivens action for violations of his rights under the First, Fifth, and

Ninth Amendments, (Count Four); (4) conspiracy to obstruct justice, in violation of

42 U.S.C. § 1985(2), (Count Five); (5) neglect to prevent the conspiracy alleged in

Count Five, in violation of 42 U.S.C. § 1986, (Count Six); and (6) aiding and

abetting and vicarious liability (Count Seven). 

We review de novo the district court’s dismissal of a complaint for failure to

state a claim, accepting the complaint’s allegations as true, and construing them in

the light most favorable to the plaintiff. Spain v. Brown & Williamson Tobacco

Corp., 363 F.3d 1183, 1187 (11th Cir. 2004). “[A] complaint should not be
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dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Nonetheless, the

complaint must meet minimal pleading requirements, and “unsupported

conclusions of law or of mixed fact and law have long been recognized not to

prevent a Rule 12(b)(6) dismissal.” Marsh v. Butler County, Ala., 268 F.3d 1014,

1036 n.16 (11th Cir. 2001) (en banc).

A. Counts One and Two: RICO Act

The RICO Act provides a private civil remedy to recover treble damages to

“[a]ny person injured in his business or property by reason of a violation” of the

substantive provisions contained in § 1962 of the RICO Act. 18 U.S.C. § 1964(c). 

“The four elements of civil RICO liability are (1) conduct (2) of an enterprise

(3) through a pattern (4) of racketeering activity.” Langford v. Rite Aid of Ala.,

Inc., 231 F.3d 1308, 1311 (11th Cir. 2000). While a civil RICO plaintiff must

show that the racketeering activity caused him to suffer an injury, see 18 U.S.C.

§ 1964(c), a claim stemming from “personal injury, or pecuniary losses resulting

from personal injury” is “not cognizable under RICO.” Pilkington v. United

Airlines, 112 F.3d 1532, 1536 (11th Cir. 1997); see also Grogan v. Platt, 835 F.2d

844, 847 (11th Cir. 1988) (“In our view, the ordinary meaning of the phrase
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‘injured in his business or property’ excludes personal injuries, including the

pecuniary losses therefrom.”). Furthermore, we have held that plaintiffs “cannot

recover under RICO for those pecuniary losses that are most properly understood

as part of a personal injury claim.” Grogan, 835 F.2d at 848.

B. Count Three: False Light Invasion of Privacy

Florida law recognizes a claim for false light invasion of privacy under the

tort of invasion of privacy. See Agency for Health Care Admin. v. Associated

Indus. of Fla., Inc., 678 So.2d 1239, 1252 n.20 (Fla. 1996) (identifying “false light

in the public eye – publication of facts which place a person in a false light even

though the facts themselves may not be defamatory,” as one of the “four types of

wrongful conduct” that can be remedied by an action for invasion of privacy). A

person will be held liable for false light invasion of privacy if “(a) the false light in

which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the

publicized matter and the false light in which the other would be placed.” 

See Restatement (Second) of Torts § 652E. Under Florida law this “ tort of

invasion of privacy must be accompanied by publication to the public in general or

to a large number of persons.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d

1311, 1315 (11th Cir. 1989). 
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C. Count Four: Bivens claim

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, the

Supreme Court provided for the possibility of a cause of action for monetary

damages against federal officials in their individual capacities for a violation of a

federal constitutional right. 403 U.S. 388, 395-97 (1971). However, the Supreme

Court has held that a federal employee cannot maintain a cause of action against

his supervisor for violations of his First Amendment rights, noting that the Civil

Service Reform Act (CSRA) established a remedy for federal employees’

employment-related constitutional claims. Bush v. Lucas, 462 U.S. 367, 385-90,

(1983); see also Wells v. Federal Aviation Administration, 755 F.2d 804, 809-10

(11th Cir.1985) (applying same analysis in the context of a Fifth Amendment due

process challenge); Stephens v. Dep’t of Health and Human Servs., 901 F.2d 1571,

1577 (11th Cir. 1990) (stating that “this court has recognized that the

comprehensive statutory scheme established by Congress relating to federal

employment (CSRA) precludes the maintenance of job-related Bivens actions by

federal employees.”).

D. Counts Five and Six: Conspiracy to Obstruct Justice

In relevant part, 42 U.S.C. § 1985(2) makes it a violation if

two or more persons in any State or Territory conspire to deter, by

force, intimidation, or threat, any party or witness in any court of the
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United States from attending such court, or from testifying to any

matter pending therein, freely, fully, and truthfully, or to injure such

party or witness in his person or property on account of his having so

attended or testified . . . .

42 U.S.C. § 1985(2). Section 1986 provides, in relevant part, 

Every person who, having knowledge that any of the wrongs

conspired to be done, and mentioned in section 1985 of this title, are

about to be committed, and having power to prevent or aid in

preventing the commission of the same, neglects or refuses so to do, if

such wrongful act be committed, shall be liable to the party

injured . . . .

42 U.S.C. § 1986. 

The elements of a conspiracy claim under § 1985(2) are: (1) a conspiracy;

(2) to deter a witness by force, intimidation, or threat from attending or testifying

before a United States court; (3) that results in injury to the plaintiff. Morast v.

Lance, 807 F.2d 926, 929-30 (11th Cir. 1987). “[A] § 1986 action is predicated on

a successful conspiracy action under § 1985.” Id. at 930. 

E. Count Seven: Vicarious Liability

Under Florida law, “vicarious liability involves the imposition of liability on

one person for the actionable conduct of another, based solely on a relationship

between the two persons.” National R.R. Passenger Corp. v. Rountree Transport

and Rigging, Inc., 286 F.3d 1233, 1262 (11th Cir. 2002) (quotation omitted). 

F. Moore’s Claims
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Upon review of the entire record, including Moore’s second amended

complaint, the defendants’ motions to dismiss, and the parties’ briefs, we hold that

the district court did not err in dismissing the complaint pursuant to Fed .R. Civ. P.

12(b)(6) for failure to state a claim. Throughout his complaint, Moore failed to

allege facts remotely sufficient to support the necessary elements, outlined above,

for any of his claims. Accordingly, we affirm the district court’s order granting the

defendants’ motions to dismiss Moore’s second amended complaint. 

II. Discovery Orders

Moore argues that (1) the magistrate judge erred when he granted the

defendants’ joint motion for an enlargement of time to respond to discovery;

(2) the magistrate erred when he denied Moore’s motion for a protective order

covering his wife’s deposition; (3) the district court erred when it granted the

defendants’ motion for a stay of discovery; and (4) the district court erred when it

struck his motion for summary judgment. 

We review “the district court’s discovery rulings . . . for an abuse of

discretion.” Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th Cir.

2004). In general, district courts have “broad discretion in deciding how best to

manage the cases before them.” Chudasama v. Mazda Motor Corp., 123 F.3d

1353, 1366 (11th Cir. 1997).
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A. Enlargement of Time to Respond to Discovery

Pursuant to Fed. R. Civ. P. 6(b), the district court, “for cause shown,” may in

its discretion order an extension of time to comply with a required act if a request

“is made before the expiration of the period originally prescribed.” We accord the

district court “broad discretion” over pre-trial matters such as discovery and

scheduling. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269

(11th Cir. 2001). 

B. Protective Order

Upon motion by a party, and for good cause shown, a district court can limit

discovery and “make any order which justice requires to protect a party or person

from annoyance, embarrassment, oppression, or undue burden or expense . . . .” 

Fed. R. Civ. P. 26(c). 

C. Stay of Discovery and Proceedings

As the district court noted, we have instructed that:

Facial challenges to the legal sufficiency of a claim or defense, such

as a motion to dismiss based on failure to state a claim for relief,

should . . . be resolved before discovery begins. Such a dispute

always presents a purely legal question; there are no issues of fact

because the allegations contained in the pleading are presumed to be

true. Therefore, neither the parties nor the court have any need for

discovery before the court rules on the motion.

Chudasama, 123 F.3d at 1367 (footnote and citation omitted). We further
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explained that delaying a ruling on the motion to dismiss “encourages abusive

discovery and, if the court ultimately dismisses the claim, imposes unnecessary

costs,” and advised that “any legally unsupported claim that would unduly enlarge

the scope of discovery should be eliminated before the discovery stage, if

possible.” Id. at 1368 (footnote omitted). 

D. Moore’s Arguments

After the district court imposed a stay on discovery and all other proceedings

pending the resolution of the motions to dismiss, Moore filed a motion for

summary judgment. Thereafter, the district court struck Moore’s motion for

summary judgment, as it was filed in violation of the stay. We find no error in the

district court’s imposition of a stay, nor in its order to strike Moore’s summary

judgment motion.

Moreover, upon review of the record and the relevant discovery-related

orders to which Moore objects, we hold that neither the magistrate nor the district

court erred. First, since the district court properly dismissed the complaint under

Fed. R. Civ. P. 12(b)(6), its discovery rulings are moot. Second, applying the

standards discussed above, the district court did not abuse its broad discretion. 

Accordingly, we affirm as to all of its orders.

III. Motion for Relief from Judgment
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We review “the district court’s order denying relief under Rule 60(b) for

abuse of discretion.” Waddell v. Hendry County Sheriff’s Office, 329 F.3d 1300,

1309 (11th Cir. 2003). We have explained:

To obtain relief from a final judgment based upon fraud under Rule

60(b)(3), the moving party must prove by clear and convincing

evidence that the adverse party obtained the verdict through fraud,

misrepresentations, or other misconduct. The moving party must also

demonstrate that the conduct prevented them from fully presenting his

case.

Id. (citations omitted). 

Moore’s allegations of fraud are without merit, and are far from clear and

convincing evidence that the judgment against Moore was obtained by fraud. See

Waddell, 329 F.3d at 1309. Moreover, Moore did not show that he was prevented

from fully presenting his case. See id. Accordingly, we hold that the district court

did not err in denying Moore’s motion to reopen, or in terminating his motion for

relief from judgment, and affirm.

IV. Conclusion

Based on the foregoing, we affirm the district court’s dismissal of Moore’s

complaint as well as its related discovery and post-judgment relief orders.

AFFIRMED.