Diaz v. Superior Energy Services LLC

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 3, 2009
No. 08-30790
Summary Calendar Charles R. Fulbruge III
Clerk
CLAYTON DIAZ,
Plaintiff-Appellant
v.
SUPERIOR ENERGY SERVICES LLC,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-2805
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Clayton Diaz appeals the magistrate judge’s grant of summary judgment
in favor of Superior Energy Services, L.L.C., (Superior) on his claims alleging
retaliation and wrongful discharge by Superior, his former employer. Diaz has
filed a motion to proceed in forma pauperis (IFP) on appeal, challenging the
district court’s certification, pursuant to Baugh v. Taylor, 117 F.3d 197, 199-202
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30790
(5th Cir. 1997), that his appeal was not taken in good faith. He also has filed a
motion seeking the appointment of counsel.
Diaz challenges the magistrate judge’s denial of his motion to withdraw
his consent to proceed before a magistrate judge, arguing that the district court
should have ruled on his motion, citing in support F ED. R. C IV. P. 73(b) and 28
U.S.C. § 455(a). Once valid consent to proceed before a magistrate judge is given
pursuant to 28 U.S.C. § 636(c), a party has no absolute right to withdraw that
consent and demand his right to an Article III judge. Carter v. Sea Land Servs.,
Inc., 816 F.2d 1018, 1021 (5th Cir. 1987). Diaz has not presented a nonfrivolous
issue for appeal with respect to his challenge to the magistrate judge’s denial of
his motion to withdraw his consent to proceed before the magistrate judge. See
id. at 1020-22. Adverse judicial rulings alone do not support an allegation of
bias for purposes of § 455, nor do critical or disapproving remarks generally
support a bias or partiality challenge. Liteky v. United States, 510 U.S. 540, 555
(1994).
Diaz argues that the magistrate judge lacked the authority to rule on
summary judgment, suggesting that the magistrate judge was authorized only
to submit a report and recommendation to the district court. Diaz consented in
writing to have a magistrate judge “conduct any and all further proceedings in
the case, including but not limited to, the trial of the case and entry of final
judgment.” The district court’s order of referral specifically provided that the
magistrate judge had the authority to enter final judgment. Diaz has not
presented a nonfrivolous issue with respect to his argument that the magistrate
judge exceeded his authority in entering a final judgment. See § 636(c); F ED.
R. C IV. P. 73(b).
Diaz contends that the magistrate judge abused his discretion in denying
his motion for the appointment of counsel. Diaz has not presented a
nonfrivolous issue with respect to the magistrate judge’s denial of his motion for
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No. 08-30790
the appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987);
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Diaz’s challenge on appeal to the magistrate judge’s denial of his motion
to compel and motion to extend time to complete discovery consists solely of his
assertion that he was denied due process because Superior was evasive during
discovery. Arguments must be briefed to be preserved. Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993). When an appellant fails to identify any error in
the district court’s analysis, it is the same as if the appellant had not appealed
that judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). Diaz has not presented a nonfrivolous issue with
respect to the magistrate judge’s denial of his motion to compel and motion to
extend time for discovery.
Diaz raises a series of arguments challenging the magistrate judge’s grant
of summary judgment for Superior on his claim arising under the Louisiana
Whistleblower Statute, L A. R EV. S TAT. A NN. § 23:967. This court’s review of the
grant of summary judgment is de novo. See Hernandez v. Velasquez, 522 F.3d
556, 560 (5th Cir. 2008). Summary judgment is proper “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c). “[T]he party moving for
summary judgment must ‘demonstrate the absence of a genuine issue of
material fact,’ but need not negate the elements of the nonmovant’s case.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets the initial
burden of showing that there is no genuine issue, the burden shifts to the
nonmovant to set forth specific facts showing the existence of a genuine issue for
trial. F ED. R. C IV. P. 56(e). The nonmovant cannot satisfy his summary
judgment burden with conclusional allegations, unsubstantiated assertions, or
only a scintilla of evidence. Little, 37 F.3d at 1075.
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No. 08-30790
As the magistrate judge observed, under L A. R EV. S TAT. A NN. § 23:967,
Diaz had to demonstrate that
(1) [Superior] violated the law through a prohibited workplace act
or practice; (2) []he advised [Superior] of the violation; (3) []he then
refused to participate in the prohibited practice or threatened to
disclose the practice; and (4) []he was fired as a result of [his] refusal
to participate in the unlawful practice or threat to disclose the
practice.
Hale v. Touro Infirmary, 886 So. 2d 1210, 1216 (La. Ct. App. 2004). A violation
of state law is an element of the claim. See Accardo v. Louisiana Health Servs.
& Indem. Co., 943 So. 2d 381, 386-87 (La. Ct. App. 2006). Diaz alleged in
speculative and conclusional terms only that Superior violated state law. See
Little, 37 F.3d at 1075. Further, Diaz did not identify specific facts
demonstrating a genuine issue for trial as to the remaining elements of his
whistleblower claim. Diaz has not raised a nonfrivolous issue with respect to his
challenge to the magistrate judge’s grant of summary judgment on his Louisiana
whistleblower claim.
Nor has Diaz raised any nonfrivolous issues for appeal with respect to his
argument of breach of an employment contract. The summary judgment
evidence reflects that Diaz was an at-will employee who could be terminated at
any time. See Brown v. Catalyst Recovery of La., Inc., 813 So. 2d 1156, 1166 (La.
Ct. App. 2002). Although Diaz suggests that he had a cause of action against
Gary Thibodaux for intentional interference with contractual relations,
Thibodaux was not a party to the suit.
Diaz has abandoned, by failing to challenge, the magistrate judge’s
determination that his state law claims arising before March 22, 2006, were time
barred. See Yohey, 985 F.2d at 225. He further has abandoned any challenges
to the district court’s grant of summary judgment for Superior on any claims
Diaz raised based on violations of federal law. See id.4
No. 08-30790
Diaz has not demonstrated that he will raise a nonfrivolous issue on
appeal. Accordingly, Diaz’s IFP motion is DENIED and his appeal is
DISMISSED as frivolous. See 5 TH C IR. R. 42.2; Baugh, 117 F.3d at 202 & n.24;
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Diaz’s motion for the
appointment of counsel is DENIED.
IFP DENIED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
APPEAL DISMISSED.
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