Pardue v. City of Natchez , 72 F. App'x 102 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 29, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 02-61046
Summary Calendar
CRAIG STEPHEN PARUDE,
Plaintiff-Appellant,
versus
CITY OF NATCHEZ; LEE EDWARD SCOTT,
Individually and in his official capacity as a member
of the Natchez Board of Examiners; YATES MCGRAW,
Individually and in his official capacity as a member of
the Natchez Board of Examiners; ANDREW CALVIT,
Individually and in his official capacity as a member of
the Natchez Board of Examiners; J. D. WHITEHEAD,
Individually and in his official capacity as a member of
the Natchez Board of Examiners; PAUL DAWES,
Individually and in his official capacity as Inspector for
the City of Natchez; JOHN COOKE, Individually and
in his official capacity as Inspector for the City of
Natchez; STANLEY BLAND, Individually and
in his official capacity as Inspector for the City of
Natchez,
Defendants-Appellees.
Appeal from the United States District Court for
the Southern District of Mississippi
(USDC No. 5:99-CV-145-BrS)
_______________________________________________________
Before REAVLEY, JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Craig Pardue appeals the district court’s summary judgment dismissal of his
claims against the City of Natchez, Mississippi and individual City officials for
discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq. (“ADA”), and the Rehabilitation Act, 29 U.S.C. § 794, and for
deprivation of his constitutional rights in violation of 42 U.S.C. § 1983. We affirm
for the following reasons.
1. Pardue repeatedly asserts that there are genuine issues of material fact which
should have precluded the district court from granting summary judgment in
favor of the City and the City employees named as individual defendants. He
never identifies what these issues are or provides any citations to the record.
We understand his argument to be that the district court did not fully consider
the affidavit evidence submitted by Pardue in opposition to the City’s motions
for summary judgment.
2. After reviewing the record, including the affidavits submitted by Pardue, it is
*
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should not be published and is not precedent except under the limited circumstances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.
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clear that the district court did not err by entering summary judgment against
him on his ADA and Rehabilitation Act claims. As is required when a federal
statute does not contain its own statute of limitations, the district court
applied Mississippi’s three-year statute of limitations on personal injury
claims to Pardue’s discrimination claims. Additionally, the evidence
established that the City had no responsibility for administering the City’s
Master Mechanical Contractor’s licensing examination after November 16,
1996, when Southern Building Code Congress International, Inc. (“SBCCI”)
assumed responsibility for all aspects of the testing. Pardue does not assign
error to either of these conclusions.
3. Accordingly, the district court allowed Pardue to come forward with
allegations to support an ADA or Rehabilitation Act claim arising after June
25, 1996 (three years before he filed suit) and before November 16, 1996
(when SBCCI assumed responsibility for the testing). Pardue failed to raise
any allegations in this regard, and the district court dismissed his claims.
Nothing in the affidavit evidence identified by Pardue in his brief or in the
record calls this ruling into question.
4. Pardue further complains that the district court erred by granting summary
judgment in favor of the City on his § 1983 claim. Pardue was arrested three
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times for performing mechanical work without a license. He claims that the
licensing statute was selectively enforced against him in violation of his
liberty and property interests in pursuing his chosen profession free from
unreasonable government interference. We agree with the district court that
Pardue cannot show an entitlement to a license prior to passing the licensing
examination, and thus his claim must be based upon a liberty interest in
choosing and pursuing his chosen career rather than any property interest.
See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)
(“To have a property interest in a benefit, a person must . . . have a legitimate
claim of entitlement to it.”); see also NATCHEZ, MISS., CODE § 90-116 (“It
shall be unlawful for any person to engage in the business of mechanical
[work] . . . without first obtaining from the City Inspection Department a
license to do so as set forth in this article.”). In order to survive a motion for
summary judgment, there must be evidence from which a reasonable jury can
conclude that the City or individual defendants acted arbitrarily or
capriciously in arresting and prosecuting Pardue. See Fowler v. Smith, 68
F.3d 124, 128 (5th Cir. 1995). Pardue does not contest the district court’s
conclusion that enforcement of the licensing laws advance a legitimate
government purpose and that the City had a rational basis for arresting
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Pardue. No evidence suggests that the government action in this case was
arbitrary nor capricious. Thus, the arrests did not violate Pardue’s liberty
interest in pursuing his chosen profession.
5. Pardue also alleged a violation of the equal protection clause of the
Fourteenth Amendment based on the selective enforcement of the licensing
requirement against him. To successfully bring a selective prosecution or
enforcement claim, a plaintiff must prove that the government official’s acts
were motivated by improper considerations, such as race, religion, or the
desire to prevent the exercise of a constitutional right. See Beeler v.
Rounsavall, 328 F.3d 813, 817 (5th Cir. 2003); Bryan v. City of Madison,
213 F.3d 267, 277 (5th Cir. 2000) (both finding no denial of equal protection
where the plaintiff failed to allege that the state action was motivated by
impermissible considerations). The affidavit evidence presented by Pardue
does not suggest that his arrests were motivated by any improper
considerations.
6. “This Court [has] stated that personal vindictiveness might be an improper
motive in a selective enforcement case, but [] has ‘never specifically
addressed whether such a motive would be enough to support an equal
protection claim without some other class-based discrimination.’” Beeler, 328
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F.3d at 817-18 (quoting Bryan, 213 F.3d at 277 n.18). We need not resolve
that issue because Pardue has failed to produce any evidence to suggest that
his arrests were motivated by personal vindictiveness on the part of City
officials. Pardue contends he was “harassed” and “singled out” by the law
enforcement officials of Natchez because of the “politics of the community,”
but nothing in the record demonstrates that this alleged harassment was
motived by the personal vindictiveness of any City official against Pardue.
Not all instances of selective prosecution raise equal protection concerns:
[Selective prosecution] has two meanings in law. The first is
simply failing to prosecute all known lawbreakers, whether
because of ineptitude or (more commonly) because of lack of
adequate resources. The resulting pattern of nonenforcement
may be random, or an effort may be made to get the most bang
for the prosecutorial buck by concentrating on the most
newsworthy lawbreakers, but in either case the result is that
people who are equally guilty of crimes or other violations
receive unequal treatment, with some being punished and others
getting off scot-free. That form of selective prosecution,
although it involves dramatically unequal legal treatment, has no
standing in equal protection law.
Esmail v. Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995) (citations omitted).
As Pardue offered no evidence that his arrests were the result of an improper
motive or an “orchestrated campaign of official harassment directed against
him out of sheer malice,” id. at 179, the district court correctly dismissed his
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equal protection claims.
7. Pardue also complains that the district court abused its discretion by denying
his Rule 56(f) motion to hold in abeyance summary disposition of his § 1983
claims. As there was no summary judgment motion pending at that time
Pardue brought the motion, the district court properly concluded that the
motion was premature and denied it without prejudice. Pardue failed to
renew the motion once the City moved for summary judgment. Assuming
without deciding that the issue was properly preserved for appellate review, a
plaintiff's entitlement to discovery prior to a ruling on a motion for summary
judgment may be cut off when the record shows that the requested discovery
is not likely to produce the facts needed by the plaintiff to withstand a motion
for summary judgment. Washington v. Allstate Ins. Co., 901 F.2d 1281,
1285 (5th Cir. 1990). To obtain a Rule 56(f) continuance, the nonmovant
must present specific facts explaining his inability to make a substantive
response as required by Rule 56(e) and by specifically demonstrating “how
postponement of a ruling on the motion will enable him, by discovery or other
means, to rebut the movant's showing of the absence of a genuine issue of
fact.” Securities and Exchange Comm’n v. Spence & Green Chem. Co., 612
F.2d 896, 901 (5th Cir.1980) (quoting Willmar Poultry Co. v.
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Morton-Norwich Products, Inc., 520 F.2d 289, 297 (8th Cir. 1975)). Pardue
failed to explain how further discovery would produce evidence to defeat the
City’s motion for summary judgment to the district court, and he does not
offer any such explanation on appeal. Thus, the trial court did not abuse its
discretion by denying his motion.
8. Lastly, Pardue claims the trial court abused its discretion by declining to
exercise supplemental jurisdiction over Pardue’s state law claims once the
federal claims were dismissed. Although Pardue identifies this as an issue
presented in his brief, he did not actually brief the issue and we consider it
waived. See Webb v. Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th Cir. 1996)
(holding that an appellant waives all issues not raised and argued in his initial
brief on appeal). In any event, we conclude there was nothing unreasonable
about the district court’s decision to decline to consider the state law claims
once the federal claims had been dismissed.
AFFIRMED.
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