IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
S))))))))))))))Q
No. 95-20056
Summary Calendar
S))))))))))))))Q
RONNIE BAZILE,
Plaintiff-Appellant,
versus
BILLY BURGE, ET AL.,
Defendants-Appellees.
S))))))))))))))))))))))))Q
Appeal from the United States District Court for the
Southern District of Texas
(93 CV 3026)
S))))))))))))))))))))))))Q
August 7, 1995
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Ronnie Bazile (Bazile) filed this suit
against defendants-appellees the Houston Metro Transit Authority
(the Authority), the Chairman of the Authority, Billy Burge
(Burge), and the Claims Adjuster of the Authority, Michael Sherman
(Sherman). Bazile alleged jurisdiction under 42 U.S.C. § 1983, the
*
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should not be published.
Federal Tort Claims Act (FTCA), and what he called, without further
identification, the "Safety and Transportation Act." He also
invoked supplemental jurisdiction over state law claims.
According to the complaint, Bazile was overcome by fumes while
riding on one of the Authority's buses and had to be treated at a
local hospital. The Authority denied liability. Bazile alleged
negligence and civil rights violations based on the Authority's
denial of liability. Through an amended complaint, Bazile
requested four million dollars in compensatory and punitive
damages. Service was completed on April 21, 1994.
One June 17, Bazile filed a motion for default judgment. The
magistrate judge conducted a hearing on Bazile's motion "because
the court had concerns about the court's subject matter
jurisdiction." Although the record does not contain an entry of
default, defendants Burge and Sherman filed a motion to set aside
the entry of default, arguing that "the current default was secured
by . . . misrepresentation." All of the defendants filed a motion
to dismiss Bazile's complaint for lack of jurisdiction. After the
hearing, the magistrate judge gave Bazile ten days to respond to
the motion to set aside the entry of default.
The magistrate judge recommended that Bazile's complaint be
dismissed for lack of jurisdiction. The magistrate judge further
recommended that Bazile's negligence cause of action be dismissed
without prejudice for refiling in state court. The magistrate
judge also suggested that Bazile's motion for default judgment be
considered moot. The district court adopted the report and
2
recommendation. Bazile timely appealed.1
Bazile argues that the district court erred by dismissing his
complaint for lack of jurisdiction.
Bazile does not contend on appeal, and did not contend below,
that there was diversity jurisdiction; nor do the facts alleged in
the complaint establish, or even suggest the presence of, diversity
jurisdiction.
Bazile argues on appeal that his complaint contains several
meritorious civil rights claims including: (1) civil rights
violations; (2) safety violations; (3) negligence; (4) violation of
statutes; and (5) constitutional violations. He argues that the
defendants' failure to provide him compensation was a "displ[a]y of
deliberate indifference." He also avers on appeal that he was
deprived of compensation in violation of his "Constitutional Rights
to Equal Protection under the law while acting under Color of
Law."2
As noted by the magistrate judge, Bazile's complaint alleged
basically a negligence cause of action, not cognizable under
section 1983. Collins v. City of Harker Heights, Tex., 916 F.2d
284, 286 (5th Cir. 1990) (negligence is insufficient to establish
1
No party raises the lack of a Rule 58 separate document final
judgment, and we hence disregard the lack of a separate document.
It is clear that the district court has finally disposed of the
case, without prejudice as to the state law claims.
2
Bazile did not raise an equal protection argument in his
original or amended complaint. Further, he does not make any legal
argument or cite any legal authority in support of this statement.
Although this Court liberally construes pro se briefs, arguments
must be briefed to be preserved. Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993). Accordingly, Bazile is entitled to no relief
on appeal in this respect.
3
municipal liability under section 1983), aff'd, 503 U.S. 115
(1992). Moreover, because the defendants are not a federal agency,
the FTCA is inapplicable. See 28 U.S.C. § 2671.
Regarding Bazile's assertion that the failure to provide him
compensation resulted in a civil rights violation, section 1983
imposes liability for violations of rights protected by the
Constitution, not for violations of duties of care arising out of
tort law. See Doe v. Taylor Indep. School Dist., 15 F.3d 443, 450
(5th Cir.), cert. denied, 115 S.Ct. 70 (1994). Although Bazile
arguably had a right to seek compensation for an injury, the
defendants did not violate his constitutional rights by denying
compensation. The district court did not err by dismissing
Bazile's complaint.
Bazile also argues that the district court erred by not
granting his motion for default judgment, because the defendants
filed their motion to set aside the default judgment seven days
late. The entry of a default judgment is committed to the
discretion of the district court and a party is not entitled to a
default judgment as a matter of right, even when the defendant is
technically in default. See Mason v. Lister, 562 F.2d 343, 345
(5th Cir. 1977); 10 Wright, et al., Fed. Prac. & Proc. § 2685 at
422. Because the district court correctly determined that the
complaint should be dismissed, it did not abuse its discretion by
denying Bazile's motion for default judgment.
Bazile also argues that the district court erred by not
considering his "Title VII" claim under the Civil Rights Act.
Neither Bazile's complaint nor his amended complaint mention Title
4
VII, and his motions to amend his complaint likewise do not mention
Title VII. Bazile argues that he raised the claim at the court's
hearing on his motion for default judgment. A transcript of that
hearing is not included in the record, nor did Bazile request such.
Accordingly, it cannot be determined whether this claim was raised
adequately in the district court. See Fed. R. App. P. 10(b)(2)
(appellant's responsibility to provide transcript of all relevant
evidence). Thus, this argument is waived. See Powell v. Estelle,
959 F.2d 22, 26 (5th Cir.), cert. denied, 113 S.Ct. 668 (1992).
Finally, Bazile makes a confusing argument that the district
court should have granted his motion for a protective order on his
"BOOK-MATERIAL ACCESS" during the litigation. Bazile forwarded a
copy of a publication to the district court. He argues that,
without the protective order, adverse parties and the public would
acquire the right to purchase his publication; therefore, a
protective order pursuant to Fed. R. Civ. P. 26(c)(7)3 was
appropriate. Bazile's brief suggests that he is seeking some form
of affirmative copyright protection. Because the relief sought is
not available through discovery procedures, the district court did
not err by failing to issue a protective order.
None of Bazile's contentions on appeal demonstrate any
reversible error. The judgment below is accordingly
AFFIRMED.
3
Fed. R. Civ. P. 26(c)(7) provides that, upon motion by a
party, a court may order that a trade secret or other confidential
research, development, or commercial information may not be
disclosed.
5