(caption unavailable)

* Local Rule 47.5 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should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8428
Summary Calendar
TERRY KIRKENDALL, ET AL.,
Plaintiffs-Appellants,
VERSUS
GRAMBLING & MOUNCE, INC., ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Texas
EP 91 CA 450 B
(August 23, 1993)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Terry Kirkendall, his wife Myra Kirkendall, and their three
minor children filed this civil RICO suit against twenty individual
and corporate defendants. Proceeding pro se, the Kirkendalls
alleged that the Grambling & Mounce law firm engaged in a criminal

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2
conspiracy with the other defendants to infiltrate and to control
the state and federal court systems in Texas. As part of the
conspiracy, they alleged that the defendants, inter alia, had
caused the Kirkendalls to be evicted from their apartment; had
engaged in racketeering activities against the Kirkendalls'
interstate business, the Centurion Arms Anarchy Gazette; and had
conspired to assassinate Terry Kirkendall. As predicate acts to
the RICO violation, the Kirkendalls alleged illegal campaign
contributions, bribery, mail and wire fraud, and obstruction of
justice.
The district court granted summary judgment in favor of all
defendants. The court noted that, with the exception of the claim
that defendant Pelletier was hired to assassinate Terry Kirkendall
(a claim which is facially frivolous), the Kirkendalls had already
raised the identical claims against eight of the defendants in an
unsuccessful civil rights suit. This Court affirmed the district
court's dismissal of that prior suit on motion for summary
judgment. Kirkendall v. Lara, No. 92-8140 (5th Cir. Feb. 24, 1993,
unpublished).
The Kirkendalls' notice of appeal, signed by Terry Kirkendall,
states that the "Plaintiffs Kirkendalls et al [sic]" appeal the
judgment. This notice invoked the Court's jurisdiction as to Terry
Kirkendall and any minor children only. See Colle v. Brazos
County, Tex., 981 F.2d 237, 241-42 (5th Cir. 1993). The phrase "et
al." in the notice of appeal was insufficient to secure appellate
jurisdiction over the appeal of Myra Kirkendall. Fed. R. App. P.

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3
3(c); Colle, 981 F.2d at 241. Terry Kirkendall and his children
will be collectively referred to herein as "Kirkendall."
OPINION
This Court conducts a de novo review of a district court's
grant or denial of summary judgment. Reese v. Anderson, 926 F.2d
494, 498 (5th Cir. 1991). For summary judgment to be granted, the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with any affidavits, must demonstrate that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); L & B Hospital Ventures, Inc. v. Healthcare Int'l, Inc., 894
F.2d 150, 151 (5th Cir.), cert. denied, 498 U.S. 815 (1990).
Although fact questions are considered with deference to the non-
movant, Rule 56 "requires the entry of a summary judgment against
the party failing to make a showing sufficient to establish the
existence of an element essential to that party's case." Id.
Opportunity to amend complaint
Kirkendall argues that the district court should not have
granted summary judgment without first notifying him of the
deficiencies in his complaint and giving him an opportunity to
amend. Although a district court should generally "freely permit
amendments" to pleadings (James by James v. Sadler, 909 F.2d 834,
836 (5th Cir. 1990)), no error exists here because Kirkendall never
filed a motion to amend his complaint. There is no law requiring
the district court to review his complaint and offer suggestions
for improvement before entering judgment.

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4
Kirkendall also suggests that the district court erred by
relying on Fed. R. Civ. P. 9(b) to dismiss the claims. Rule 9(b)
requires that in all averments of fraud or mistake, "the
circumstances constituting fraud or mistake shall be stated with
particularity." Fed. R. Civ. P. 9(b).
In detailed reasons for its judgment, the district court cited
Rule 9(b) only with regard to the Kirkendalls' allegations against
defendants Diaz and Piper. Diaz supervises the internal affairs
division of the El Paso Police Department and Piper is an El Paso
assistant city attorney. Kirkendall alleged that Diaz committed
mail fraud when he wrote a letter responding to a complaint that
Kirkendall had filed about Detective Carrillo, another alleged
member of the conspiracy. According to Kirkendall, this letter was
part of a "fraudulent 'cover-up and white-wash' scheme" to obstruct
his interstate business. Piper allegedly joined the illegal
conspiracy when she filed, in the civil rights suit, a motion to
quash Kirkendall's subpoena of Detective Carrillo's internal police
records. Kirkendall's conclusional allegations concerning these
two defendants fail to allege fraud with the particularity required
by Rule 9(b).
Allegations concerning discovery
Kirkendall charges that the district court committed
constitutional error by entering summary judgment before he was
able to complete discovery and by entering summary judgment without
the benefit of additional unidentified evidence that he "could
have" produced.

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1 The district court dismissed one of the judges because he
was never served with the suit. Kirkendall has not appealed the
dismissal.
5
On motion for summary judgment, a non-moving party who needs
more time to obtain discovery may request a continuance pursuant to
Fed. R. Civ. P. 56(f). International Shortstop, Inc. v. Rally's,
Inc., 939 F.2d 1257, 1266 (5th Cir. 1991), cert. denied, 112 S.Ct.
936 (1992); Fed. R. Civ. P. 56(f). The court has no obligation to
grant additional time for discovery absent a request from the non-
moving party. International Shortstop, 939 F.2d at 1266 (citation
omitted). The party seeking additional time to conduct discovery
must show how the additional discovery will create a genuine
dispute as to a material fact and "may not simply rely on vague
assertions that additional discovery will produce needed, but
unspecified facts." Id. at 1267.
We reject this argument because Kirkendall not only failed to
request a continuance for additional discovery in the district
court, but on appeal he has offered only "vague assertions" that
additional discovery opportunities would have produced
discrepancies of material fact.
Judicial and quasi-judicial immunity
Three of the defendants are state judges1 and a fourth is the
secretary to one of the judges. Kirkendall's rambling allegations
against all three judges relate solely to acts taken in their
judicial capacities. Kirkendall alleged that the secretary was
liable because she made two telephone calls to inform him of the

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6
dates for hearings and because she helped to process a request for
a replacement judge to preside at one hearing.
The district court held that the three judges were entitled to
absolute judicial immunity and that the secretary had quasi-
judicial immunity for her actions. Kirkendall argues that the
doctrines of judicial and quasi-judicial immunity do not apply in
civil RICO suits, but he does not suggest that any of these
defendants acted outside a judicial or quasi-judicial capacity.
A judge has absolute immunity from monetary liability for all
judicial acts that are not performed in clear absence of
jurisdiction. Johnson v. Kegans, 870 F.2d 992, 995 (5th Cir.),
cert. denied, 492 U.S. 921 (1989). Other "necessary participants
in the judicial process" are entitled to absolute quasi-judicial
immunity. Id. at 996. Kirkendall's argument that there is no
judicial or quasi-judicial immunity in a civil RICO action is
frivolous. The cases that he has cited as authority for this
proposition are inapplicable because they are criminal RICO
prosecutions.
Capacity for suit of El Paso Police Department
Citing § 1.1 of the El Paso City Charter and Tex. Local Gov't.
Code Ann. § 341.003, the district court found that the City of El
Paso was a home rule municipality authorized by Texas law to
organize a police force. The district court therefore concluded
that the El Paso Police Department was not subject to suit under §
1962 because it did not have a separate legal existence from the
municipality itself. See Darby v. Pasadena Police Dept., 939 F.2d

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311, 313 (5th Cir. 1991). Although the relevant section of the
city charter is not included in the record on appeal, Kirkendall
does not suggest that the police department is a legal entity
separate from the City of El Paso.
A plaintiff cannot sue a city department unless the department
"enjoy[s] a separate legal existence." Darby, 939 F.2d at 313. We
affirm the dismissal of the El Paso Police Department from the suit
because there has been no showing that the department has a legal
existence separate from the City of El Paso.
Alleged predicate acts
Kirkendall challenges the district court's determination that
he failed to establish the alleged predicate acts of mail fraud and
obstruction of justice.
The elements of mail fraud as a predicate offense in a civil
RICO suit are:
(1) A scheme or artifice to defraud or to
obtain money or property by means of false or
fraudulent pretenses, representations or
promises.
(2) Interstate or intrastate use of the mails
for the purpose of furthering or executing the
scheme or artifice to defraud.
(3) The use of the mails by the defendant
connected with the scheme artifice [sic] to
defraud.
(4) Actual injury to the business or property
of the plaintiff.
Landry v. Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 428
(5th Cir.), cert. denied, 498 U.S. 895 (1990).

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8
Although Kirkendall identified numerous mailings by various
defendants as fraudulent, the district court found that he had not
pleaded the elements of mail fraud with regard to any defendant.
The court held that the conclusional allegations that the documents
mailed by defendants Diaz and Piper were part of a "cover-up and
white-wash scheme" did not meet the particularity requirements of
Rule 9(b) and that there was no showing that any mailing by any
defendant deprived the Kirkendalls of money or property or
permitted a defendant to obtain something of value.
In his appellate brief, Kirkendall again makes only
generalized allegations of mail fraud. He has not established
predicate acts of mail fraud because he has not explained how any
of the defendants' communications advanced their allegedly
fraudulent scheme or how the communications violated federal law.
See Elliott v. Foufas, 867 F.2d 877, 881-82 (5th Cir. 1989).
With regard to the alleged predicate acts of obstruction of
justice, Kirkendall has appealed only the district court's
determination that defendants Diaz and Piper did not obstruct
justice. Kirkendall alleges that Diaz's letter about the internal
affairs investigation was part of a "cover-up" and that Piper
became a part of the conspiracy when she filed a motion to quash in
federal court. As a matter of law, neither of these activities
constitutes obstruction of justice. See 18 U.S.C. §§ 1501-1515.
Res judicata and collateral estoppel
The district court noted that, in the litigation of their
eviction proceedings in state court, a jury had determined that the

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Kirkendalls' eviction did not result from a retaliatory conspiracy.
The district court held that relitigation of this issue was barred
by the doctrine of collateral estoppel, and that the finding that
the eviction was not retaliatory undermined the factual basis of
the entire RICO cause of action. The district court also
determined that principles of res judicata applied to this suit
because Kirkendall's RICO claims presented the same cause of action
as the 42 U.S.C. § 1983 suit.
Kirkendall cites both of these rulings as error, but he has
presented no comprehensible argument concerning the applicability
of collateral estoppel. This argument is therefore waived.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
The bar of res judicata applies only if four requirements are
met: "(1) the parties must be identical in both suits; (2) the
prior judgment must have been rendered by a court of competent
jurisdiction; (3) there must be a final judgment on the merits; and
(4) the same cause of action must be involved in both cases."
Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.
1990) (citation omitted). For purposes of res judicata analysis,
"cause of action" is defined to include all claims that were or
could have been brought in a prior action based on the same
transaction. See Nilsen v. City of Moss Point, Miss., 701 F.2d
556, 560 (5th Cir. 1983).

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2 Eight of the present defendants were actually named in the
civil rights suit.
10
Kirkendall points out that only seven2 of the twenty
defendants in this suit were named as defendants in the civil
rights suit. Defendants Kessler, Robbins, Colescott Haran, Paxson,
Rugge, Grambling & Mounce, El Paso Apartment Association, and
Cooper were defendants in the original § 1983 suit. The factual
allegations made in the civil rights suit are for all practical
purposes identical to the RICO claims. For example, in the civil
rights suit, Kirkendall alleged that the § 1983 defendants had
engaged in a retaliatory conspiracy under "Color of Law" and "Color
of Office" to violate their civil rights by evicting them because
the Kirkendalls had reported unlawful activities that occurred at
their apartment complex. Kirkendall also argued in the § 1983 suit
that the defendants had obtained the eviction by means of a
widespread conspiracy to corrupt the state judicial system in the
Western District of Texas. Although Kirkendall has expanded the
allegations in this suit to include as targets of the conspiracy
all members of the state and federal judiciary in Texas, the
charges remain conclusional and devoid of factual support.
Kirkendall does not dispute that on appeal of the state
eviction proceeding, the jury specifically found that the eviction
was not retaliatory; therefore, the retaliatory eviction claim (the
crux of the alleged conspiracy) is barred by the doctrine of
collateral estoppel. See Allen v. McCurry, 449 U.S. 90, 94-95, 101
S.Ct. 411, 66 L.Ed.2d 308 (1980). A plaintiff cannot file suit in

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federal court to relitigate an unfavorable state court ruling. See
Howell v. Supreme Court of Texas, 885 F.2d 308, 311-13 (5th Cir.
1989), cert. denied, 496 U.S. 936 (1990); Hale v. Harney, 786 F.2d
688, 690-91 (5th Cir. 1986) (both § 1983 suits filed by parties
seeking relief from unfavorable state court judgments).
Kirkendall's claims against the defendants named in their
civil rights suit are barred because their eviction was not
retaliatory, and also because Kirkendall could have brought the
RICO claims in the prior civil rights suit. Allen, 449 U.S. at 94-
95; Nilsen, 701 F.2d at 560.
"A non-party is in privity with a party for res judicata
purposes in three instances: (1) if he is a successor in interest
to the party's interest in the property; (2) if he controlled the
prior litigation; or (3) if the party adequately represented his
interests in the prior proceeding." Howell Hydrocarbons, 897 F.2d
at 188 (citation omitted).
Kirkendall's claims against some of the other defendants are
barred because those defendants are in privity to the named
defendants in the civil rights suit. At all times relevant to this
lawsuit, defendants Sparks and Carr were partners in the firm of
Grambling & Mounce. The Centurion Arms apartment complex is wholly
owned by defendant Kessler, and there is no indication that it is
a corporation.
The record is insufficient to support the district court's
apparent determination that the other defendants named in this suit
could impose the bar of res judicata because they were in privity

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12
with the original defendants in the civil rights suit. The error
is harmless because, for the following reasons, none of the other
defendants are liable to Kirkendall under the RICO statute.
The El Paso Police Department is not a legal entity subject to
suit; defendants Diaz and Piper are not alleged to have committed
any actions that would subject them to RICO liability; defendants
Galvan and Robbins were never served with the suit; defendants Peca
and Massey are entitled, respectively, to judicial and quasi-
judicial immunity.
The Court should also affirm the district court's dismissal of
defendants Pelletier, Carrillo, and Sanchez, as Kirkendall's
appellate brief does not address the dismissal of those defendants.
Brinkmann, 813 F.2d at 748. Dismissal is appropriate because, as
discussed below, Kirkendall "did not allege or point to sufficient
evidence of a pattern of racketeering to create a genuine issue of
material fact for trial. Howell Hydrocarbons, 897 F.2d at 193.
Issues of material fact
Finally, Kirkendall urges that the district court should not
have granted summary judgment because of the existence of genuine
issues of material fact. Other than his conclusional allegations
of conspiracy, however, Kirkendall has failed to identify any
disputed material fact in either his response to the motions for
summary judgment or his appellate brief. Brinkmann, 813 F.2d at
748.
Kirkendall has filed a number of motions in this Court,
including a motion to submit additional evidence (in the form of

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unrelated newspaper articles), a motion to "interplead" [sic] and
sanction the defendants' attorneys, a request for oral argument,
and a motion for appointment of counsel. The El Paso Apartment
Association, has moved to strike Kirkendall's motion for
"interpleader" and sanctions and has requested that sanctions be
imposed on Kirkendall. We grant the motion to strike the motion to
implead and sanction the defendants' attorneys because that motion
is frivolous. Kirkendall's other motions are denied as moot.
Because Kirkendall appears to have limited financial means the
Court will not on this occasion issue any sanction against
Kirkendall; however, the Court warns Kirkendall that sanctions will
be imposed for any future frivolous litigation.
Judgment of the trial court is AFFIRMED.

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