* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

February 1, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-60038

Summary Calendar

 

TROY D. BROWN, SR.,

Plaintiff-Appellant,

versus

MISSISSIPPI VALLEY STATE UNIVERSITY; ET AL,

Defendants,

LESTER C. NEWMAN, Individually and in His 

Official Capacity of President of Mississippi 

Valley State University; KEVIN A. ROLLE, 

Individually and in His Official Capacity as 

Vice President of Student Affairs of Mississippi 

Valley State University, 

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:99-CV-168-BB

--------------------

Before GARZA, DeMOSS and CLEMENT, Circuit Judges. 

PER CURIAM:*

Troy D. Brown, Sr. is appealing the district court’s order

denying his challenge made during the jury voir dire pursuant to

Batson v. Kentucky, 476 U.S. 79 (1986). Following a jury trial,

the district court dismissed Brown’s complaint seeking relief
No. 04-60038

-2-

under the civil rights statutes and state law prohibiting

malicious interference with employment relations. 

Brown argues that the district court erred in upholding the

appellees’ reasons for challenging two African-American members

of the venire without making a determination that the reasons

were pretextual and that the strikes were actually

discriminatory. The appellees respond that in failing to dispute

the non-discriminatory reasons for the challenges, Brown waived

his initial Batson challenge and, thus, the ruling is not subject

to appellate review. 

The Equal Protection Clause forbids a prosecutor to

challenge potential jurors solely on account of their race. 

Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson, the Court

outlined a three-step process for evaluating claims that a

prosecutor used peremptory challenges in a manner violating the

Equal Protection Clause: (1) a defendant must make a prima facie

showing that the prosecutor has exercised his peremptory

challenges on the basis of race; (2) the burden then shifts to

the prosecutor to articulate a race-neutral reason for striking

the juror in question; and (3) the trial court must determine

whether the defendant has carried his burden of proving

purposeful discrimination. Hernandez v. New York, 500 U.S. 352,

358-59 (1991) (citing Batson, 476 U.S. at 96-98). The principles

announced in Batson have been applied to challenges to jurors in
No. 04-60038

-3-

private civil litigation. Edmonson v. Leesville Concrete Co.,

943 F.2d 551, 552 (5th Cir. 1991). 

A party opposing a challenge to a member of the venire under

Batson must prove purposeful discrimination in response to the

striking party’s statement of racially neutral reasons for the

strike. He cannot rely on his initial objection. See United

States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (citing

United States v. Rudas, 905 F.2d 38, 41 (2nd Cir. 1990)).

In failing to object to the district court’s determination

that the defendants presented racially neutral reasons for their

challenges to the African-American members of the venire, Brown

waived his Batson claim. Therefore, the denial of the Batson

challenge is AFFIRMED.