Commercial Litigation and Arbitration

RICO — Elements of Associated-in-Fact Enterprise — Failure to Identify Common Purpose or Course of Conduct Vitiates RICO Claim for Failure to State “Ongoing Criminal Enterprise”

Crowe v. Clark, 2014 U.S. App. LEXIS 504 (10th Cir. Jan. 10, 2014):

Vicki Dillard Crowe, proceeding pro se, appeals the dismissal of her civil rights complaint alleging constitutional and statutory violations stemming from the foreclosure of her Denver, Colorado home and her subsequent eviction from it. The district court dismissed the action for lack of jurisdiction and as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Defendants, all of whom were allegedly involved in the eviction, were never served and neither answered the  complaint nor responded to this appeal. For the reasons that follow, we affirm the district court's judgment.***

In this case, Ms. Dillard Crowe asserted eighteen claims against the individuals and entities who she says were responsible for wrongfully evicting her and her mother. According to the amended complaint, there was no legal authority for evicting her, and defendants therefore violated her rights under the Fourth Amendment by unlawfully searching and seizing her home; the Fourteenth Amendment by depriving her of property; the Sixth Amendment by denying her a speedy trial and preventing her from confronting witnesses; and the Eighth Amendment by exacting cruel and unusual punishment in seizing her property. Ms. Dillard Crowe also brought municipal liability claims under 42 U.S.C. § 1983, a conspiracy claim under 42 U.S.C. § 1985, several RICO claims, see 18 U.S.C. § 1964(c); 18 U.S.C. § 1503; 18 U.S.C. § 1513, and multiple claims under Colorado law.

The district court, after granting Ms. Dillard Crowe leave to proceed in forma pauperis ("IFP"), see 28 U.S.C. § 1915, ruled that her claims either were barred by Rooker-Feldman or were legally frivolous. More specifically, the court ruled that it lacked jurisdiction under the Rooker-Feldman doctrine to the extent Ms. Dillard Crowe's Fourth Amendment claim challenged the state-court order authorizing the eviction. To the extent she challenged her treatment during the eviction rather than the eviction itself, the court found that her Sixth, Eighth, and Fourteenth Amendment claims were frivolous because the matter was not a criminal proceeding and she held no interest in the property. Moreover, without any underlying violation, the court ruled that Ms. Dillard Crowe's municipal liability claims were moot. As for her RICO claims, the court ruled they were frivolous because Ms. Dillard Crowe failed to allege an enterprise or injury and invoked inapplicable provisions of the RICO statute. Also frivolous was Ms. Dillard Crowe's § 1985 claim because she failed to allege the elements of a conspiracy under § 1985(2) or a race-based, discriminatory animus as required by § 1985(3). Finding no valid federal claim, the court declined to exercise supplemental jurisdiction over the state-law claims and dismissed the suit with prejudice.***


This leaves Ms. Dillard Crowe's RICO claims. As we understand her brief, Ms. Dillard Crowe's only contention is that the district court erred in finding that she failed to allege an enterprise. See Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010) (setting forth elements of a RICO claim under § 1962: "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity") (internal quotation marks omitted). The district court ruled that she failed to allege an enterprise separate and apart from the racketeering activity, but Ms. Dillard Crowe insists an enterprise is apparent from defendants' alleged wrongdoing during the eviction.

We agree with the district court's conclusion that Ms. Dillard Crowe failed to allege an enterprise, but we clarify that an enterprise need not exist separate and apart from a pattern of racketeering activity. See United States v. Hutchinson, 573 F.3d 1011, 1020-21 (10th Cir. 2009) (discussing Boyle v. United States, 556 U.S. 938, 946 (2009)). To qualify as an association-in-fact enterprise, "a group must have '[1] a purpose, [2] relationships among those associated with the enterprise, and [3] longevity sufficient to permit these associates to pursue the enterprise's purpose.'"   Id. (quoting Boyle, 556 U.S. at 946 (alterations omitted)). The group must have a common purpose to engage in a course of conduct, but that purpose need not exist "beyond or independent of the group's pattern of racketeering activity." Id.

Here, Ms. Dillard Crowe attempts to define an enterprise by defendants' alleged wrongdoing during the eviction, but she fails to identify any common purpose or course of conduct. Although she claimed defendants attempted to detain and kidnap her, presumably to show a pattern of racketeering, this says nothing about the existence of any ongoing criminal enterprise. The district court was therefore correct to dismiss this claim.


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