* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 18, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-21244

Summary Calendar

EDMUND B. HEIMLICH,

Plaintiff-Appellant,

versus

FIRST BANK N.A.; ET AL.,

Defendants,

FIRST BANK N.A.,

Defendant-Appellee.

Appeals from the United States District Court

for the Southern District of Texas

USDC No. H-00-CV-3418

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM: *

Edmund B. Heimlich appeals the jury verdict for First Bank,

N.A., on his civil-rights complaint. For the reasons stated below,

we AFFIRM.

Heiml ich filed suit alleging that First Bank made false

statements that caused him to be charged with and convicted of a2

crime that was later overturned by the state appellate court. He

further argued that First Bank invaded his privacy in violation of

the federal Privacy Protection Act; tortiously interfered with his

contractual and business relationships; converted his money;

wrongfully dishonored his check; and ma liciously prosecuted him,

resulting in false imprisonment and intentional infliction of

emotional distress. The jury rejected most of his contentions. It

found, for example, that First Bank had not engaged in a conspiracy

to deprive Heimlich of liberty or property, and that First Bank was

not negligent in placing a hold on his bank account. The jury did,

however, find that First Bank violated its fiduciary duty to

Heimlich by releasing account information without authority and by

seizing the proceeds in his account. Nonetheless, the jury found

that Heimlich suffered no damages from that breach.

Shortly after the district court en tered final judgment on

December 4, 2001, Heimlich filed a notice of appeal, in which he

raised three specific issues. First, he contended that the

district court erred by giving the jury a “jury nullification”

instruction. Second, he claimed that the district court erred in

submitting a state appellate court opinion to the jury. Finally,

he argued that the evidence did not support certain jury findings,

that the court’s § 1983 jury instruction incorrec tly included an

intent requirement, and that the court erred in presenting the

issue of probable cause to the jury for determination. Just over

a week later, he attempted to withdraw that filing by submitting a1 See United States v. Clark

, 917 F.2d 177, 179 (5th Cir. 1990)

(noting that the act of filing a notice of appeal within the time

period allowed by Fed. R. App. P. 4 constitutes the taking of an

appeal); Fed. R. App. P. 42 (allowing dismissal of an appeal after

it has been docketed “if the parties file a signed dismissal

agreement specifying how costs are to be paid and pay any fees that

are due”).

2 See Capital Parks, Inc. v. Southeastern Adver. & Sales Sys.,

Inc. , 30 F.3d 627, 630 (5th Cir. 1994).

3 Cinel v. Connick , 15 F.3d 1338, 1345 (5th Cir. 1994).

3 “Withdrawal of Appeal” so that the district court could rule on his

post-trial motions. He filed a second notice of appeal on February

13, 2002. In this notice, he raised two additional arguments:

that multiple errors rendered a constitutionally intolerable result

and that he was denied equal protection and due process by the

district court.

Heimlich’s attempted withdrawal of his original notice of

appeal, however, was ineffective. 1 Because Heimlich’s first notice

of appeal raised three specific issues, our review is confined to

those issues only. 2 In his brief to this court, Heimlich failed to

brief two of these issues – the submission of the state appellate

opinion to the jury, and the sufficien cy of the evidence.

Accordingly, he has waived these two issues. 3 The only issues

properly before us involve the district court’s jury instructions.

Heimlich has not shown that he raised any ob jection to the jury

instructions before the jury began deliberation, and we therefore4 See Russell v. Plano Bank & Trust

, 130 F.3d 715, 719-21 (5th

Cir. 1997).

5 See Daniel v. Williams , 474 U.S. 327, 330 (1986).

6 P ete v. Metcalfe

, 8 F.3d 214, 216 (5th Cir. 1993) ( quoting

Dennis v. Sparks , 449 U.S. 24, 27 (1980)).

4 review the instructions for plain error only. 4

Heimlich first contends that the district court erred in

instructing the jury that intent is an element of a § 1983 claim.

The district court instructed the jury that, in order to prevail on

his § 1983 claim, he must prove that “First Bank intentionally

committed acts that violated” certain of Heimlich’s constitutional

rights. Although § 1983 itself does not contain an independent

i ntent requirement, a plaintiff must prove a violation of an

underlying constitutional or statutory right, 5 and this underlying

right may contain an intent component. In this case, Heimlich’s §

1983 claim was based upon an allegation of malicious prosecution.

Under Texas law, the tort of malicious prosecution includes, as an

element, a requirement that the defendant acted wit h “malice.”

Moreover, a private actor is not amenable to suit under § 1983

unless the party was “‘a willful participant in joint action with

the St ate or its agents.’” 6 Given that the definition of

“malicious prosecution” require s malice and that § 1983 requires

willfulness, it cannot be said that the court’s instruction on

intent was plain error.

Heimlich next argues that the district court’s instruction to7 Kerr v. Lyford , 171 F.3d 330, 340 (5th Cir. 1999).

8 See Piazza v. Mayne

, 217 F.3d 239, 245 (5th Cir. 2000);

Richey v. Brookshire Grocery Co.

, 952 S.W.2d 515, 517 (Tex. 1997).

5 the jury on probable cause was error. Although his argument here

i s unclear, he appears to claim that the jury should have been

i nstructed that he was prosecuted without probable cause. To

prevail on a claim of malicious prosecution under Texas law,

however, a plaintiff must prove that the defendants acted without

p robable cause. 7 The jury was thus entitled to determine whether

First Bank reasonably could have bel ieved that Heimlich had

committed a crime before the criminal proceedings were begun. 8

Heimlich has not shown that the district court plainly erred by

submitting this issue to the jury.

Heimlich’s final argument is that the district court erred by

telling the jury “stories” regarding “jur y nullification.” The

record on appeal does not reflect any suc h “stories” or

instructions to the jury, and Heimlich has provided us with no

information to corroborate his claim. Consequently, Heimlich has

not shown the existence of plain error.

Because each of Heimlich’s argumen ts are without merit, the

judgment of the district court is AFFIRMED.

The parties each filed numerous motions with their briefs on

appeal. We dispose of these as follows. First Bank’s request to

strike the “Notice of Appeal” contained in Heimlich’s record6

excerpts is GRANTED. The motions that Heimlich included in his

reply brief

– a petition for a writ of mandamus and motion to

strike portions of First Bank’s brief

– are DENIED. Heimlich’s

motion for retroactive recusal of the district judge and his

petition for en banc hearing are DENIED. The “Supplemental

Letters” that Hei mlich submitted, presumably pursuant to Fed. R.

App. P. 28(j), are STRICKEN for noncompliance with the rule.