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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30790

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

August 3, 2009

Charles R. Fulbruge III

Clerk
No. 08-30790

2

(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 FED. R. CIV. 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); FED.

R. CIV. 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
No. 08-30790

3

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, LA. REV. STAT. ANN. § 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.” FED. R. CIV. 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. FED. R. CIV. 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.
No. 08-30790

4

As the magistrate judge observed, under LA. REV. STAT. ANN. § 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.
No. 08-30790

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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 5TH CIR. 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.