IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40197

JOHNNY PARTAIN, 

 Plaintiff - Appellant

v.

CITY OF SOUTH PADRE ISLAND, TEXAS; DENNIS W. STAHL; ANNA D. 

STAHL; VICTOR CARRANZA, 

 Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:16-CV-317

Before DAVIS, SMITH, and COSTA, Circuit Judges.

PER CURIAM:*

Johnny Ray Partain sued Dennis Stahl, Anna Stahl, Victor Carranza, 

and the City of South Padre Island, bringing 42 U.S.C. § 1983 claims for 

deprivation of civil rights and a Racketeer Influenced and Corrupt 

Organizations Act (RICO) claim. Partain, proceeding pro se, now appeals the 

district court’s summary judgment dismissal of his suit. For the reasons set 

forth below, we AFFIRM.

 

* 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

December 6, 2019

Lyle W. Cayce

Clerk

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I. BACKGROUND

On or around April 1, 2014, Dennis Stahl hired general contractor, Jon 

Wilson, for an extensive home renovation project. Together, the two ordered a 

generator from Generac. Because it was a large, custom-made piece of 

machinery, Generac referred them to Johnny Ray Partain, the company’s local 

authorized representative. Stahl, Wilson, and Partain met on June 3, 2014. 

Stahl ordered a $24,369.24 generator, delivering the check to Partain that 

same day. Partain told Stahl that the generator would take four to six weeks 

to build, and he could expect delivery between July 3 and July 17, 2014.

The generator, however, never arrived. When Wilson and Stahl asked 

Partain for a firm delivery date, he claimed he still needed to place the order. 

Partain made various excuses for the non-delivery of the generator. Around 

the end of August, Generac informed Partain it had canceled the order due to 

lack of payment. By September 2014, Partain had ceased responding to Stahl 

and Wilson.

After further attempts to contact Partain failed, Wilson and Stahl went 

to the South Padre Island (SPI) police department on October 14, 2014 and 

spoke with Detectives Victor Carranza and Jaime Rodriguez. Wilson and Stahl

asked that charges be filed against Partain for theft. On his witness statement, 

Stahl stated he was “unemployed,” making no reference to his candidacy for 

city councilman.

After initial struggles to contact Partain, Carranza and Rodriguez 

interviewed Partain on October 27, 2014. During the interview, Partain

explained that he had used Stahl’s money for other projects. The detectives 

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told Partain that if he could promptly resolve the dispute, they would not file 

charges.1

Nothing resulted. Partain further delayed repayment, and Stahl 

contacted the police, again urging arrest. His email signature read “City 

Councilman Elect” for the South Padre Island City Council, presumably 

because he was running unopposed for the position.

On October 29, 2014, Carranza filled out a probable cause statement. He 

explained that Stahl had paid for a generator, which was now ready for pickup, 

but that Partain had not paid Generac for it, despite having deposited Stahl’s 

check. He further noted that Partain had been unresponsive and elusive. A 

magistrate judge signed Carranza’s arrest warrant that day.

Stahl was elected to the South Padre Island City Council on November 

4, 2014 and sworn in ten days later. Partain, meanwhile, voluntarily 

surrendered himself on November 5, 2014. A grand jury indicted Partain in 

January 2015 and, after a two-day jury trial, Partain was found guilty of theft 

in the third degree on December 11, 2015. He was sentenced to two years in 

prison and five years of probation. The Court of Appeals for the Thirteenth 

District of Texas reversed his conviction, however, on November 16, 2017. The 

court reasoned that the state failed to prove Partain had the requisite intent 

to deprive at the contract’s formation.2

While Partain’s criminal appeal was pending, Dennis Stahl and his wife 

Anna sued Partain on November 20, 2015. Partain replied with a counterclaim 

against the Stahls, the City of South Padre Island (SPI), and Carranza, 

alleging claims under § 1983 for deprivation of civil rights and RICO. The 

 

1 In his affidavit, Carranza stated, “A timeframe was given to [Partain] to return the 

money, but he did not meet that requirement.”

2 Partain v. State, No. 13-16-00080-CR, 2017 WL 5505746, at *7 (Tex. App.—Corpus 

Christi, Nov. 16, 2017, no pet.) (mem. op., not designated for publication).

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counterclaim was severed, and that is the proceeding that was before the 

district court. After SPI and the Stahls sought summary judgment in 

September 2018, Partain filed a request for entry of default against Carranza 

on November 13, 2018. The trial judge denied Partain’s motion and granted 

summary judgment. Partain now appeals.

II. ANALYSIS

Partain contends he presented an issue of material fact to demonstrate 

the defendants violated his constitutional rights under the Fourth, Fifth, and 

Fourteenth Amendments and colluded against him in violation of RICO. He 

also brings an abuse of process claim. This court reviews a grant of summary 

judgment de novo.3 Summary judgment is appropriate when “the movant 

shows that there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.”4

First, Partain’s claims against SPI that its officers filed a false affidavit 

to attain a warrant are without merit. The magistrate judge issued a thorough 

opinion finding that there was no policymaker who had knowledge of the 

affidavit’s contents.5 Moreover, because there was no evidence that the factual 

statements in the affidavit were false, the issuance of the warrant absolved the 

city of any liability. The magistrate judge also correctly determined Partain 

had no freestanding claim of malicious prosecution.6 Lastly, the magistrate 

 

3 McClendon v. United States, 892 F.3d 775, 780–81 (5th Cir. 2018).

4 FED. R. CIV. P. 56(a).

5 See Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001) (requiring that to 

hold a municipality liable for a § 1983 claim, a plaintiff must show that (1) a policymaker 

acted on behalf of the city, (2) the action constituted an official policy, and (3) the policy was 

the “moving force” of the constitutional violation).

6 See Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc) (holding “no 

such freestanding constitutional right to be free from malicious prosecution exists” under 

§ 1983).

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judge was correct in concluding that Partain’s Equal Protection claim was 

without merit—he failed to show SPI acted without rational basis.7

Partain’s claims against the Stahls similarly fail. Dennis Stahl ran for 

city councilman unopposed, but he had not yet been sworn in when Partain 

was arrested. We agree with the magistrate judge that Mr. Stahl was not a 

state official.8 We also agree that, in urging the police to make an arrest, he 

did not act under color of state law.9 As to Anna Stahl, Partain provides no 

evidence that she held any government position or was in any way involved in 

pressing charges. Partain’s abuse of process claim, meanwhile, is not properly 

before this court.10

We further agree with the dismissal of Partain’s RICO claims against 

both the Stahls and SPI. The magistrate judge correctly concluded that Partain 

 

7 See Integrity Collision Ctr. v. City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (a 

class-of-one equal protection claim requires that a plaintiff show he was intentionally treated 

differently from others similarly situated with no rational basis for the difference in 

treatment). On appeal, Partain argues he brought a procedural due process claim that the 

magistrate judge did not address. “In procedural due process claims, the deprivation by state 

action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself 

unconstitutional; what is unconstitutional is the deprivation of such an interest without due 

process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990). Partain does not identify how 

he was denied procedural due process. In fact, Partain readily admits he received a full 

criminal trial and an appeal. Summary judgment was appropriate on this claim as well.

8 See, e.g., Melo v. Hafer, 912 F.2d 628, 638 (3d Cir. 1990) (holding that a candidate 

who had not yet taken office could not be considered a state actor), aff’d, 502 U.S. 21 (1991).

9 In Moody v. Farrell, 868 F.3d 348, 354 (5th Cir. 2017), this court held that an exhusband did not act as a state actor when he pressed charges against his former wife. The 

police department conducted an independent investigation and came to its own conclusion, 

with which a justice court judge agreed; at best, the husband only pressured the police. Id. 

at 353–54.

10 “A claim which is not raised in the complaint but, rather, is raised only in response 

to a motion for summary judgment is not properly before the court.” Hoffman v. L & M Arts, 

838 F.3d 568, 576 (5th Cir. 2016) (quoting Cutrera v. Bd. of Supervisors of La. State Univ., 

429 F.3d 108, 113 (5th Cir. 2005)). Although arguments by pro se litigants are liberally 

construed, pro se litigants must comply with the relevant rules of procedure. See Birl v. 

Estelle, 660 F.2d 592, 593 (5th Cir. 1981) (per curiam) (“The right of self-representation does 

not exempt a party from compliance with relevant rules of procedural and substantive law.”).

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failed to establish a pattern of racketeering activity.11 The district court 

properly granted summary judgment on these claims.

Partain now argues for the first time on appeal that the district court 

judge erred in failing to recuse himself pursuant to 28 U.S.C. § 455(a). As 

Partain raises this issue for the first time on appeal, his claim fails.12

Regardless, his claim would also falter on the merits; a plaintiff may not name 

a judge as a witness and cite to previous cases plaintiff filed over which the 

judge presided to force a recusal.13

Lastly, Partain maintains that the court should have granted his motion 

for entry of default in his suit against Carranza, which in turn would have 

allowed him to prevail on summary judgment. This court reviews a denial of a 

default judgment for abuse of discretion.14 The magistrate judge was correct in 

concluding that, because Partain sued Carranza in his official capacity, his 

claims against Carranza are co-extensive against the city.15

 

11 See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241 (1989) (requiring a plaintiff 

show either a closed period of repeated conduct or past conduct with threat of repetition).

12 Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003) (“Requests for recusal 

raised for the first time on appeal are generally rejected as untimely.”).

13 See, e.g., Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone 

almost never constitute a valid basis for a bias or partiality motion.”); United States v. Owens, 

902 F.2d 1154, 1156 (4th Cir. 1990) (“Parties cannot be allowed to create the basis for recusal 

by their own deliberate actions.”).

14 Thomas v. Kippermann, 846 F.2d 1009, 1011 (5th Cir. 1988).

15 Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all 

respects other than name, to be treated as a suit against the entity.”). See also Doe v. Fort 

Zumwalt R-II Sch. Dist., 920 F.3d 1184, 1991 (8th Cir. 2019) (a school district’s answer could 

constitute a responsive pleading on behalf of a school-district official sued in his official 

capacity). The parties also extensively argue over whether Carranza was properly served. 

The argument is moot; the Fifth Circuit has held service of process against an individual in 

his official capacity need only comply with Rule 4(j) of the Federal Rules of Civil Procedure. 

See Moore v. Hosemann, 591 F.3d 741, 747 (5th Cir. 2009). See also 4 CHARLES ALAN WRIGHT 

& ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1109 (4th ed. 2019).

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III. CONCLUSION

For these reasons and those advanced by the magistrate judge in his 

thorough report, we AFFIRM the district court’s judgment.

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