United States Court of Appeals

Fifth Circuit

FILED

July 29, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-61046

Summary Calendar

 

CRAIG STEPHEN PARUDE,

Plaintiff-Appellant,

versus

CITY OF NATCHEZ; LEE EDWARD SCOTT,

Individually and in his official capacity as a member

of the Natchez Board of Examiners; YATES MCGRAW,

Individually and in his official capacity as a member of

the Natchez Board of Examiners; ANDREW CALVIT,

Individually and in his official capacity as a member of

the Natchez Board of Examiners; J. D. WHITEHEAD,

Individually and in his official capacity as a member of

the Natchez Board of Examiners; PAUL DAWES,

Individually and in his official capacity as Inspector for

the City of Natchez; JOHN COOKE, Individually and 

in his official capacity as Inspector for the City of

Natchez; STANLEY BLAND, Individually and 

in his official capacity as Inspector for the City of

Natchez,

Defendants-Appellees.

 

Appeal from the United States District Court for

the Southern District of Mississippi

(USDC No. 5:99-CV-145-BrS)

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should not be published and is not precedent except under the limited circumstances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

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Before REAVLEY, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

Craig Pardue appeals the district court’s summary judgment dismissal of his

claims against the City of Natchez, Mississippi and individual City officials for

discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §

12101 et seq. (“ADA”), and the Rehabilitation Act, 29 U.S.C. § 794, and for

deprivation of his constitutional rights in violation of 42 U.S.C. § 1983. We affirm

for the following reasons.

1. Pardue repeatedly asserts that there are genuine issues of material fact which

should have precluded the district court from granting summary judgment in

favor of the City and the City employees named as individual defendants. He

never identifies what these issues are or provides any citations to the record. 

We understand his argument to be that the district court did not fully consider

the affidavit evidence submitted by Pardue in opposition to the City’s motions

for summary judgment.

2. After reviewing the record, including the affidavits submitted by Pardue, it is
3

clear that the district court did not err by entering summary judgment against

him on his ADA and Rehabilitation Act claims. As is required when a federal

statute does not contain its own statute of limitations, the district court

applied Mississippi’s three-year statute of limitations on personal injury

claims to Pardue’s discrimination claims. Additionally, the evidence

established that the City had no responsibility for administering the City’s

Master Mechanical Contractor’s licensing examination after November 16,

1996, when Southern Building Code Congress International, Inc. (“SBCCI”)

assumed responsibility for all aspects of the testing. Pardue does not assign

error to either of these conclusions. 

3. Accordingly, the district court allowed Pardue to come forward with

allegations to support an ADA or Rehabilitation Act claim arising after June

25, 1996 (three years before he filed suit) and before November 16, 1996

(when SBCCI assumed responsibility for the testing). Pardue failed to raise

any allegations in this regard, and the district court dismissed his claims. 

Nothing in the affidavit evidence identified by Pardue in his brief or in the

record calls this ruling into question.

4. Pardue further complains that the district court erred by granting summary

judgment in favor of the City on his § 1983 claim. Pardue was arrested three
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times for performing mechanical work without a license. He claims that the

licensing statute was selectively enforced against him in violation of his

liberty and property interests in pursuing his chosen profession free from

unreasonable government interference. We agree with the district court that

Pardue cannot show an entitlement to a license prior to passing the licensing

examination, and thus his claim must be based upon a liberty interest in

choosing and pursuing his chosen career rather than any property interest. 

See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)

(“To have a property interest in a benefit, a person must . . . have a legitimate

claim of entitlement to it.”); see also NATCHEZ, MISS., CODE § 90-116 (“It

shall be unlawful for any person to engage in the business of mechanical

[work] . . . without first obtaining from the City Inspection Department a

license to do so as set forth in this article.”). In order to survive a motion for

summary judgment, there must be evidence from which a reasonable jury can

conclude that the City or individual defendants acted arbitrarily or

capriciously in arresting and prosecuting Pardue. See Fowler v. Smith, 68

F.3d 124, 128 (5th Cir. 1995). Pardue does not contest the district court’s

conclusion that enforcement of the licensing laws advance a legitimate

government purpose and that the City had a rational basis for arresting
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Pardue. No evidence suggests that the government action in this case was

arbitrary nor capricious. Thus, the arrests did not violate Pardue’s liberty

interest in pursuing his chosen profession. 

5. Pardue also alleged a violation of the equal protection clause of the

Fourteenth Amendment based on the selective enforcement of the licensing

requirement against him. To successfully bring a selective prosecution or

enforcement claim, a plaintiff must prove that the government official’s acts

were motivated by improper considerations, such as race, religion, or the

desire to prevent the exercise of a constitutional right. See Beeler v.

Rounsavall, 328 F.3d 813, 817 (5th Cir. 2003); Bryan v. City of Madison,

213 F.3d 267, 277 (5th Cir. 2000) (both finding no denial of equal protection

where the plaintiff failed to allege that the state action was motivated by

impermissible considerations). The affidavit evidence presented by Pardue

does not suggest that his arrests were motivated by any improper

considerations.

6. “This Court [has] stated that personal vindictiveness might be an improper

motive in a selective enforcement case, but [] has ‘never specifically

addressed whether such a motive would be enough to support an equal

protection claim without some other class-based discrimination.’” Beeler, 328
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F.3d at 817-18 (quoting Bryan, 213 F.3d at 277 n.18). We need not resolve

that issue because Pardue has failed to produce any evidence to suggest that

his arrests were motivated by personal vindictiveness on the part of City

officials. Pardue contends he was “harassed” and “singled out” by the law

enforcement officials of Natchez because of the “politics of the community,”

but nothing in the record demonstrates that this alleged harassment was

motived by the personal vindictiveness of any City official against Pardue. 

Not all instances of selective prosecution raise equal protection concerns:

[Selective prosecution] has two meanings in law. The first is

simply failing to prosecute all known lawbreakers, whether

because of ineptitude or (more commonly) because of lack of

adequate resources. The resulting pattern of nonenforcement

may be random, or an effort may be made to get the most bang

for the prosecutorial buck by concentrating on the most

newsworthy lawbreakers, but in either case the result is that

people who are equally guilty of crimes or other violations

receive unequal treatment, with some being punished and others

getting off scot-free. That form of selective prosecution,

although it involves dramatically unequal legal treatment, has no

standing in equal protection law. 

Esmail v. Macrane, 53 F.3d 176, 178-79 (7th Cir. 1995) (citations omitted). 

As Pardue offered no evidence that his arrests were the result of an improper

motive or an “orchestrated campaign of official harassment directed against

him out of sheer malice,” id. at 179, the district court correctly dismissed his
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equal protection claims. 

7. Pardue also complains that the district court abused its discretion by denying

his Rule 56(f) motion to hold in abeyance summary disposition of his § 1983

claims. As there was no summary judgment motion pending at that time

Pardue brought the motion, the district court properly concluded that the

motion was premature and denied it without prejudice. Pardue failed to

renew the motion once the City moved for summary judgment. Assuming

without deciding that the issue was properly preserved for appellate review, a

plaintiff's entitlement to discovery prior to a ruling on a motion for summary

judgment may be cut off when the record shows that the requested discovery

is not likely to produce the facts needed by the plaintiff to withstand a motion

for summary judgment. Washington v. Allstate Ins. Co., 901 F.2d 1281,

1285 (5th Cir. 1990). To obtain a Rule 56(f) continuance, the nonmovant

must present specific facts explaining his inability to make a substantive

response as required by Rule 56(e) and by specifically demonstrating “how

postponement of a ruling on the motion will enable him, by discovery or other

means, to rebut the movant's showing of the absence of a genuine issue of

fact.” Securities and Exchange Comm’n v. Spence & Green Chem. Co., 612

F.2d 896, 901 (5th Cir.1980) (quoting Willmar Poultry Co. v.
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Morton-Norwich Products, Inc., 520 F.2d 289, 297 (8th Cir. 1975)). Pardue 

failed to explain how further discovery would produce evidence to defeat the

City’s motion for summary judgment to the district court, and he does not

offer any such explanation on appeal. Thus, the trial court did not abuse its

discretion by denying his motion.

8. Lastly, Pardue claims the trial court abused its discretion by declining to

exercise supplemental jurisdiction over Pardue’s state law claims once the

federal claims were dismissed. Although Pardue identifies this as an issue

presented in his brief, he did not actually brief the issue and we consider it

waived. See Webb v. Investacorp, Inc., 89 F.3d 252, 257 n.2 (5th Cir. 1996)

(holding that an appellant waives all issues not raised and argued in his initial

brief on appeal). In any event, we conclude there was nothing unreasonable

about the district court’s decision to decline to consider the state law claims

once the federal claims had been dismissed. 

AFFIRMED.