* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . 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 reliefNo. 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 inNo. 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.