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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-1653
Summary Calendar
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ROBERT L. RICH,
Plaintiff-Appellant,
VERSUS
CRAIG HOPPER, et al.,
Defendants,
CRAIG HOPPER,
Defendant-Appellee.
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No. 92-1824
Summary Calendar
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ROBERT L. RICH,
Plaintiff-Appellant,
VERSUS
CRAIG HOPPER, et al.,
Defendants,
UNKNOWN NAME GOVERNMENT AGENTS,
FORT WORTH, TEXAS, et al.,
Defendants-Appellees.

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* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
2
_________________________
Appeals from the United States District Court
for the Northern District of Texas
(4:91-CV-491-A)
_________________________
January 29, 1993
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
In these two appeals that we consolidate sua sponte, Robert
Rich challenges the district court's dismissal of his prisoner's
Bivens action against agents of the Drug Enforcement Administration
(DEA). Finding no error, we dismiss the appeals as frivolous.
I.
In 1989, Fort Worth attorney Toby Goldsmith represented Rich
and Melanie Hooper, who were indicted in the United States District
Court for the Eastern District of Louisiana on drug charges. On
July 13 or 14, 1989, Goldsmith informed New Orleans DEA Special
Agent Wayne Enders that Rich and Hooper had deposited a package
with him. Enders asked the Fort Worth DEA Resident Agent in
Charge, Dannie P. West, to have someone take delivery of the
package from Goldsmith. At West's direction, DEA Task Force
Officer and Deputy United States Marshal Craig Hopper took delivery
of the package and shipped it, unopened, to the DEA office in New
Orleans; Enders received the package on July 19, 1989.

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On July 31, 1989, Enders applied for a warrant to search the
package. On that same day, the warrant issued and was executed,
yielding seven items of gold and diamond jewelry.
On October 13, 1989, Rich was convicted on sixteen drug
counts, including operating a continuing criminal enterprise that
produced and sold amphetamines in five states. According to the
government, trial testimony showed that Rich had purchased large
amounts of jewelry with drug proceeds and used the jewelry to
entice others to join in the enterprise.
Evidence of the seized jewelry, however, was excluded from
trial on the grounds that the seizure was warrantless and that,
even if the warrant problems were cured, the prejudicial effect of
the evidence outweighed its probative value. Furthermore, the
evidence was found to be cumulative.
On complaint of the government, the jewelry was ordered seized
and held subject to court order. Through an attorney other than
Goldsmith, Rich and Hooper filed a claim and answer in response to
the seizure order. The district court rejected the claim and
ordered the jewelry forfeited. On Rich's motion to appeal in forma
pauperis, this court, on April 12, 1991, dismissed his appeal of
the forfeiture order.
By amended complaint, Rich sued Hopper, Enders, and West,
alleging that they had seized the jewelry from Goldsmith without
warrant or probable cause, violating the Fourth Amendment. He
sought declaratory and injunctive relief and damages in the amount
of $50,000, the alleged value of the jewelry. As Rich alleged a

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constitutional violation by federal officers, his action was
brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.
388, 389 (1971).
The original complaint had been filed July 12, 1991. After
the defense of qualified immunity was raised, the court instructed
Rich to plead more specific facts. The amended complaint was
Rich's response.
Hopper moved to dismiss or, alternatively, for summary
judgment, raising, among other things, qualified immunity. Rich
filed no response. Holding that Rich's complaint did not plead
facts sufficient to overcome the qualified immunity defense, the
district court dismissed the claims against Hopper. Having
determined that there was no just reason for delay, the district
court entered a final judgment as to Hopper. Rich noticed an
appeal, No. 92-1653.
Then, Enders and West moved to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) or, alternatively, for summary judgment, raising,
among other things, qualified immunity. Rich opposed the motion.
Holding that Rich's complaint did not plead facts sufficient to
overcome the qualified immunity defense, the district court
dismissed the claims against Enders and West. The district court
entered a final judgment. Rich noticed an appeal, No. 92-1824.
II.
A.
Rich argues that his complaint was sufficient. Under the

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doctrine of qualified immunity, an official enjoys immunity from
suit for damages for actions taken in his official capacity and
within the scope of his authority so long as his actions do not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known. Harlow v. Fitzgerald,
457 U.S. 800, 813 (1982). The party seeking to recover damages
from an official asserting qualified immunity bears the heightened
burden of pleading specific facts that, if proven, would overcome
the immunity defense. Jackson v. City of Beaumont Police Dep't,
958 F.2d 616, 620 (5th Cir. 1992); Elliott v. Perez, 751 F.2d 1472,
1479 (5th Cir. 1985). "Mere conclusory allegations and bold
assertions are insufficient to meet this heightened standard."
Streetman v. Jordan, 918 F.2d 555, 557 (5th Cir. 1990).
The immunity defense applies to federal officials as it does
to state officials. Barker v. Norman, 651 F.2d 1107, 1122 (5th
Cir. Unit A July 1981). Review of a dismissal for failure to meet
the heightened pleading requirement is de novo. Streetman, 918
F.2d at 556-57; Jackson, 958 F.2d at 618. The amended complaint
alleged only the following facts:
1. In July, 1989, without warrant or probable cause
Wayne Enders; [sic] DEA New Orleans, contacted Craig
Hopper; [sic] DEA Forth Worth, to seize plaintiff's
property ($50,000.00 in Jewelry) from Toby Goldsmith.
2. On July 13, 1989; [sic] without warrant or probable
cause, Danny [sic] West directed Craig Hopper to seize
plaintiff's property from Toby Goldsmith.
3. Craig Hopper seized plaintiff's property and sent it
to Wayne Enders.
4. Wayne Enders received plaintiff's property on
July 19, 1989.

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5. By seizing plaintiff's property without warrant or
probable cause, Enders, West, and Hopper deprived
plaintiff of his right and protection to be free from
illegal seizure' [sic] as guaranteed to him by the Fourth
Amendment to the United States Constitution.
In Streetman, 918 F.2d at 557, we analyzed facts pleaded in a
suit alleging an illegal search. We provided an illustrative list
of allegations that are too broad to survive dismissal under
Elliott. The list includes assertions that a confidential
informant did not exist, that the officer obtaining the search
warrant lied in the probable cause affidavit, that the defendants
conspired against the plaintiff, and that the affidavit did not
establish probable cause. Id.
The basis of Rich's claim is that the package was taken
without warrant or probable cause. A warrant did not exist when
Hopper took delivery of the package from Goldsmith and shipped it
to Enders. Rich states no facts to support his conclusional
allegation that probable cause did not exist or even that probable
cause was required. Rich proposes conclusions as facts.
B.
Rich argues that the district court incorrectly held that he
could prove no set of facts that would entitle him to relief. The
Hopper dismissal made no reference to proof but was based entirely
upon Rich's failure to plead facts specific enough to overcome a
qualified immunity defense.
The Enders and West dismissal was based upon the same defect.
The district court added the following:

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The court need not reach the alternative motion for
summary judgment, but notes that defendants' affidavits
reflect that they were acting within the course and scope
of their employment and did not violate any clearly
established right of plaintiff during the proceedings
here in question. Plaintiff has failed to file any
controverting evidence or otherwise attempt to raise a
genuine issue of material fact with regard to defendants'
actions.
The court granted the motion to dismiss, not the motion for summary
judgment. This alternative ground that the court did not reach was
not the basis of the dismissal. This argument is frivolous.
Rich also argues that the district court erroneously held that
the defendants had successfully made a qualified immunity defense.
The district court stated no such holding.
C.
Rich argues that the suppression of the evidence at his
criminal trial established that the seizure violated the Fourth
Amendment and compels a judgment in his favor. He calls it the
"law of the case." This argument is unavailing for at least four
reasons.
1.
The dismissal for failure to plead facts sufficient to
overcome an immunity defense was based upon the face of the amended
complaint. Jackson, 958 F.2d at 621. In a pleading filed before
the amended complaint, Rich claimed that the result of the
suppression hearing was binding. The amended complaint did not
refer to this claim.

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2.
Even if a plaintiff could use the suppression of evidence as
an offense, Rich has not provided enough information. He has
supplied only twenty-one pages of a 138-page suppression hearing
transcript. That excerpt covers Goldsmith's testimony, the judge's
ruling, and exchanges with the attorneys. We cannot determine the
substance of what was actually litigated.
3.
Even if we were to accept that those twenty-one pages contain
all material that is relevant to Rich's argument, the trial court
was equivocal on whether its finding that the agents acted
unconstitutionally was necessary and critical. The court's first
ground for suppressing the evidence was its view that the agents
had violated the Fourth Amendment. The court continued by stating
that, even if the Fourth Amendment defects were remedied, the
prejudicial effect of the evidence outweighed its probative value.
The court also found the evidence cumulative.
4.
Even if we could accept the transcript excerpt as if it were
complete and could conclude that the Fourth Amendment issue was
critical and necessary to the holding, the transcript indicates
that the Fourth Amendment issue was not actually litigated.
Immediately after the district court announced its decision to
suppress, the government attorney protested that he had not

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addressed the Fourth Amendment issue and had limited his presenta-
tion to the attorney-client privilege. He told the court that he
did that because, at a pre-trial conference, the judge had stated
that the evidence would be admitted. The court did not address
this protest, which, however, raises a serious question of whether
the issue was actually litigated.
We need not address the government's argument that Rich seeks
to re-litigate the forfeiture. The transcript of the civil
forfeiture trial is not in the record of these appeals.
III.
Arguing that these appeals are frivolous, the government seeks
sanctions against Rich. An appeal is frivolous if the claim
advanced is unreasonable or is not brought with a reasonably good
faith belief that it is justified. Clark v. Green, 814 F.2d 221,
223 (5th Cir. 1987). An appeal is also frivolous if the result is
obvious or the arguments of error are wholly without merit.
Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir. 1988) (per curiam).
We do not lightly impose sanctions at any time, but it is particu-
larly cautious in doing so when the appellant appears pro se.
Clark, 814 F.2d at 223. Pro se litigants are not held to the
standard of professionals, yet they are not granted unrestrained
license to pursue totally frivolous appeals. Id.
Generally, a warning precedes the imposition of sanctions
against a pro se litigant. When a litigant's conduct is especially
egregious, however, a warning is not a pre-requisite. Cf. Moody v.

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Baker, 857 F.2d 256, 258 (5th Cir.), cert. denied, 488 U.S. 985
(1988) (a Fed. R. Civ. P. 11 sanction is generally preceded by a
warning but may be imposed when litigant's conduct is especially
egregious).
This appeal is frivolous, but Rich's conduct has not been
egregious beyond that point. Instead of imposing sanctions, we
warn Rich that the filing of frivolous appeals in the future very
likely will result in sanctions.
The appeal is DISMISSED as frivolous. See Fifth Cir. Loc. R.
42.2.

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