UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-31013
Summary Calendar
____________________
CARL E. JACKSON,
Plaintiff-Appellant,
versus
TOWN OF JONESBORO;
POLICE DEPT. CITY OF JONESBORO;
W. RICHARD ZUBER;
MALLORY WALKER, also known as Mack Walker;
G. WESLEY HORTON,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(96-CV-531)
_________________________________________________________________
August 4, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Carl E. Jackson appeals, pro se, both the summary judgment
dismissal of his 42 U.S.C. § 2000e, et seq, employment
discrimination claim, and the court’s denial of his motion for
default judgment. We AFFIRM.
I.
*
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this opinion should not be published and is not precedent except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.
On 31 May 1994, Jackson, a black police officer for the Town
of Jonesboro, Louisiana, was terminated after he failed to appear
at a criminal proceeding in which his testimony was necessary.
Jackson and another officer were replaced by two black officers.
On 7 March 1996, Jackson filed this action under Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et seq., claiming that he
was terminated because of his race; and that the police
department’s disciplinary procedures were applied in a racially
discriminatory manner.
On 30 May 1996, Jackson moved for a default judgment, which
the magistrate judge recommended be denied. Jackson sought review
by this court of the magistrate judge’s recommendation but, on 6
August 1996, we dismissed the appeal for lack of jurisdiction.
The district court accepted the magistrate judge’s
recommendation and denied the default judgment motion. On 4
September 1997, the district court granted defendants’ summary
judgment motion.
II.
Jackson contends that the district court erred by: (1) denying
his motion for default judgment; and (2) granting summary judgment,
when material fact issues exist.
A.
Default judgment is warranted “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or
2
otherwise defend as provided by [the Federal Rules of Civil
Procedure] and that fact is made to appear by affidavit or
otherwise”. FED. R. CIV. P. 55. Jackson initiated this action on
7 March 1996, and all defendants were served by 24 April 1996. On
24 May 1996, the defendants moved to dismiss for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief can be granted. And, on 30 May 1996, the defendants filed
an answer and reiterated their motion to dismiss. Accordingly, for
the reasons noted in the magistrate judge’s recommendation, the
denial of Jackson’s 30 May 1996 default judgment was proper. See
FED. R. CIV. P. 55.
B.
Jackson appeals the summary judgment dismissal of his two
Title VII claims: (1) that he was terminated because of his race;
and (2) that the police department’s disciplinary procedures were
applied in a racially discriminatory manner. Of course, we review
summary judgment de novo. E.g., BellSouth Telecommunications, Inc.
v. Johnson Bros. Corp., 106 F.3d 119, 122 (5th Cir. 1997). Equally
well-established is that the nonmovant may not rely on allegations
made in the pleadings to establish a genuine issue of material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
1.
3
Concerning the discriminatory discharge claim, and even
assuming that Jackson established a prima facie claim, he failed to
present evidence showing that the nondiscriminatory reason for his
termination (his failure to respond to a subpoena in a criminal
proceeding, resulting in dismissal of criminal charges) was
pretextual, and that defendants’ true motive was discriminatory.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 515-16 (1993).
Jackson’s contention that he was never adequately informed that he
was required to appear in the criminal proceeding is irrelevant for
the purposes of this issue. Mayberry v. Vought Aircraft Co., 55
F.3d 1086, 1091 (5th Cir. 1995) (“The question is not whether an
employer made an erroneous decision; it is whether the decision was
made with discriminatory motive. Even an incorrect belief that an
employee’s performance is inadequate constitutes a legitimate,
nondiscriminatory reason.”) (internal quotation, indentation, and
citation omitted).
2.
To establish a discriminatory discipline claim, Jackson must
“show that white employees were treated differently under
circumstances ‘nearly identical’ to his”. Id. at 1089. Jackson
has failed to allege that any other Jonesboro Police Department
Officers have failed to appear in a criminal proceeding of which
they had knowledge, resulting in dismissal of charges.
C.
4
In conjunction with the above contentions, Jackson also
appears to claim district court error in allowing the defendants to
submit immaterial and inadmissible evidence; taking his claims out
of their chronological order; and making untrue, biased, and
prejudicial remarks from the bench. These conclusory contentions
are not adequately briefed; we do not address them.
III.
Accordingly, we AFFIRM for essentially the reasons stated in
the district court’s summary judgment order and the magistrate
judge’s recommendation of denial of default judgment.
AFFIRMED
5