Vanderwall v. Peck

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 18, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30537
Summary Calendar
WILLIAM R. VANDERWALL,
Plaintiff-Appellant,
versus
GARY Q. PECK, individually, and in
his official capacity as Director
of the Louisiana Department of Health
and Hospital’s (DHH) Office of Public
Health (OPH); ROBERT BOLAND, Attorney,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CV-3142-K
Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
William R. Vanderwall, representing himself, appeals the
dismissal of his complaint under FED. R. CIV. P. 12(b)(6) for failure
to state a claim for which relief can be granted. We affirm.
We review a dismissal de novo, assuming the allegations of the
*
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this opinion should not be published and is not precedent except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.
complaint to be true. Jackson v. City of Beaumont Police Dep’t,
958 F.2d 616, 618 (5th Cir. 1992). Though we construe pro se
pleadings liberally, Haines v. Kerner, 92 S. Ct. 594, 595-96
(1972), even pro se litigants must cross some minimal threshold of
clarity. If appellant has achieved this, he has done so only
barely. As best as we can discern, the central allegation of the
complaint, which rambles at considerable length, is that appellant
was denied his civil rights to due process of law when he was
terminated by appellee Peck from his job as an anti-terrorism
planner. Appellant cited 42 U.S.C. §§ 1983, 1985, and 1986 as the
statutory bases for relief.
Apellant raises three points of error: (1) the district court
erred in declining to exercise supplemental jurisdiction over his
state law claims; (2) the district court erred in dismissing his
federal claims; and (3) the district court erred in dismissing his
federal claims with prejudice.
With respect to his first point of error, the district court
only declined to exercise supplemental jurisdiction after
dismissing all of the federal claims. The decision to exercise
supplemental jurisdiction over state law claims involving non-
diverse parties is discretionary and we find no abuse of that
discretion. Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.
1999).
Nor was it an error for the district court to dismiss
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appellant’s various federal claims. To the extent appellant
brought a section 1983 claim against appellees in their official
capacities, dismissal was proper because Louisiana has Eleventh
Amendment immunity from suit. Will v. Michigan Dep’t of State
Police, 109 S. Ct. 2304, 2309-10 (1989). To the extent he brought
a section 1983 claim against appellees in their individual
capacities, appellant did not allege facts sufficient to make out
a violation of the constitution. Appellant’s termination violated
due process only if he had a protected property interest in his
job. Wallace v. Shreve Memorial Library, 79 F.3d 427, 429 (5th
Cir. 1996). Whether such an interest exists is a matter of state
law. Id. Appellant furnished the district court a copy of the
typewritten contract which was for a one year term and expressly
authorized earlier termination without cause. In Louisiana, a
person acquires a protectable property interest in a government job
only if the contract has a “for cause” clause, or if the employee
is classified under the state civil service system, which, as a
person subject to a specific one-year term, petitioner was not.
See id.; Pope v. New Orleans City Park, 672 So. 2d 388, 389-90 (La.
Ct. App. 1996) (stating that a person acquires permanent civil
service status only by an express grant thereof). Appellant,
therefore, has not alleged a claim for relief under the federal
constitution.
The district court was also correct when it dismissed
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petitioner’s claims under 42 U.S.C. §§ 1985 and 1986. An element
of a section 1985 claim is that the conspiracy must be based on
invidious discrimination against a protected class. Miss. Women’s
Med. Clinic v. McMillan, 866 F.2d 788, 793 (5th Cir. 1989). No
reading of appellant’s complaint suggests an allegation that
appellees Peck and Boland conspired against appellant on the basis
of his membership in a protected class. It was also correct for
the district court to dismiss petitioner’s section 1986 claim
because prevailing under section 1985 is a prerequisite for
recovery under section 1986. Id. at 795.
We reject appellant’s argument that the district court erred
in dismissing his federal claims with prejudice. Appellees not
only filed a motion to dismiss, but had also filed an answer.
Appellant filed a response to the answer and to the motion to
dismiss of appellees and made other filings below which the
district court considered. He never requested any leave to amend
or further amend or to dismiss without prejudice. He filed no
post-judgment motion. Accordingly, no error in this respect is
shown.
The judgment is accordingly
AFFIRMED.
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