Kenneth D. Humphrey v. United Parcel Service

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 18, 2006

No. 06-10341 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 05-20283-CV-AJ

KENNETH D. HUMPHREY,

AFRICAN AMERICAN UPS CUSTOMERS,

RACIAL MINORITY UPS CUSTOMERS,

AFRICAN DESCENDANT UPS CUSTOMERS,

Class Action Plaintiffs,

Plaintiffs-Appellants,

versus

UNITED PARCEL SERVICE,

DELL COMPUTER CORPORATION,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 18, 2006)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Kenneth Humphrey, proceeding pro se, appeals the district court’s decision

to dismiss his complaint under Fed. R. Civ. P. 12(b)(6). Humphrey alleges (1)

violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18

U.S.C. §§ 1962-1964; (2) racial discrimination in violation of 42 U.S.C. §§ 1981,

1982; and (3) racial discrimination in violation of Title VI of the Civil Rights Act,

42 U.S.C. § 2000d by Appellees United Parcel Service (“UPS”) and Dell

Corporation (“Dell”). Upon review of the record and briefs, we find that

Humphrey did not allege predicate criminal activity under RICO or allege facts

that demonstrate disparate treatment on the basis of race. Accordingly, we affirm

the decision below.

Background

According to Humphrey’s complaint, he ordered a business computer

system from Dell using expedited delivery. Dell uses UPS exclusively for

shipping purposes, and Humphrey was subsequently informed that his computer

was awaiting pickup at the UPS will-call office. Humphrey attempted to retrieve

his computer, but was denied delivery because the address listed on his driver’s

license did not match the delivery address. After obtaining further identification,

Humphrey again attempted to pick up the computer, and it was released to him

later that day. Humphrey, who is African-American, alleges that Dell and UPS

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used security concerns as a ploy to unnecessarily prolong and complicate delivery

of the computer, and that their actions were motivated by racial animus.

Standard of Review

We review de novo a dismissal under Rule 12(b)(6) for failure to state a

claim upon which relief may be granted. Jackson v. BellSouth Telecomms., 372

F.3d 1250, 1262 (11th Cir. 2004). We accept the allegations in the complaint as

true and construe them in the light most favorable to Humphrey. Id. at 1263. As

Humphrey is proceeding pro se, we will construe his pleadings liberally, and we

will hold them to a less stringent standard than we would hold pleadings drafted by

attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).

Discussion

The RICO Act allows for recovery for injuries based on violations of

RICO’s criminal provisions. 18 U.S.C. § 1964(c); Langford v. Rite Aid of Ala.,

Inc., 231 F.3d 1308, 1311 (11th Cir. 2000). “The four elements of civil RICO

liability are (1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity.” Id. For RICO purposes, racketeering activity is defined as

an act that is indictable under a list of criminal offenses including, inter alia,

murder, kidnaping, gambling, arson, robbery, bribery, extortion, mail fraud, wire

fraud or counterfeiting and a pattern is defined as two predicate acts of

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racketeering activity within ten years. Id. at 1311-12; see also 18 U.S.C. §1961.

Humphrey’s claim clearly does not fall within these provisions. A single incident

of delay in delivering a computer do not constitute criminal offenses under RICO,

nor does it establish a pattern of RICO violations. Accordingly, we affirm the

dismissal of Humphrey’s RICO claim.

Humphrey further makes a racial discrimination claim under 42 U.S.C. §§

1981, 1982, alleging that UPS subjects minority customers to delay and harassment

when picking up their deliveries. For a successful claim under § 1981, Humphrey

was required to demonstrate that UPS and Dell intentionally discriminated against

him because of his minority status with regard to certain enumerated activities.

Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1235 (11th Cir. 2000)

(noting that intent to discriminate on the basis of race is the “critical element” of a

§ 1981 claim). Similarly, for a § 1982 claim, Humphrey was required to

demonstrate that he was deprived of his property interest because of an intentional

act based on racial animus. Jackson v. Okaloosa County, Fla. 21 F.3d 1531, 1543

(11th Cir. 1994). Humphrey’s complaint, taken in the most favorable light

possible, merely demonstrates that he was temporarily deprived of his property

because of UPS procedures. It fails entirely to state facts sufficient to show that

the restrictions were imposed on him because of his race or to compare his

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treatment to that of other groups picking up deliveries at the will-call center. His

claim therefore fails, and we find that it was properly dismissed by the district

court.

Finally, Humphrey alleges that as a recipient of federal funding, UPS can be

held liable for racial discrimination under Title VI of the Civil Rights Act, 42

U.S.C. § 2000d. “Title VI prohibits discrimination on account of race, color, or

national origin in all programs and activities receiving federal financial assistance.”

Robinson v. Vollert, 602 F.2d 87, 89 (5th Cir. 1979). Specifically, the statute

requires that a person prove that he was denied participation, based on his race, in a

federally funded program for which he was otherwise qualified. 42 U.S.C. §

2000d. Since Humphrey does not claim that he was eligible for federal funding,

but merely that UPS received some federal assistance, Title VI does not apply to

him. We therefore find that the district court correctly dismissed his claim.

AFFIRMED.

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