Kenner Jackson v. Kathy Biedenharn, et al
UNPUBLISHED OPINION FILED. [10-30909 Affirmed ] Judge: JLW , Judge: PRO , Judge: LHS Mandate pull date is 07/11/2011; denying motion to caution plaintiff that further false statements against appellees or their counsel may result in the imposition of sanctions filed by Appellees Ms. Pamela Bozeman, Ms. Lacy N Johnston, Ms. Kathy Biedenharn and Mr. Zakiyyh Vaughn [6726627-3]; denying motion to disqualify attorney filed by Appellant Mr. Kenner Fitzgerald Jackson [6721319-2]; denying motion to strike brief filed by Appellant Mr. Kenner Fitzgerald Jackson [6721319-3]; granting motion to strike document filed by Appellees Ms. Pamela Bozeman, Ms. Lacy N Johnston, Ms. Kathy Biedenharn and Mr. Zakiyyh Vaughn [6711952-2]; denying motion for judicial notice filed by Appellant Mr. Kenner Fitzgerald Jackson [6700555-2]; denying motion to supplement the record on appeal filed by Appellant Mr. Kenner Fitzgerald Jackson [6689414-2] [10-30909]
Date Filed: 06/20/2011
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
June 20, 2011
Lyle W. Cayce
KENNER FITZGERALD JACKSON,
KATHY BIEDENHARN; PAMELA BOZEMAN; LACY N. JOHNSTON;
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:08-CV-422
Before WIENER, OWEN, and SOUTHWICK, Circuit Judges.
When he was nearing the end of a federal prison sentence, PlaintiffAppellant Kenner Fitzgerald Jackson was transferred to the City of Faith
halfway house in Shreveport, Louisiana.
Later, Jackson, who is African
American, sued four employees of the halfway house for discriminating against
him on the basis of his race, asserting violations of 42 U.S.C. §§ 1981, 1982,
1985, and 1986. Specifically, he alleged that because of disciplinary charges he
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
Date Filed: 06/20/2011
received, he was not permitted to leave the halfway house to work, even though
a Caucasian resident who received similar charges was permitted to work
outside of the halfway house. He also alleged that he was not permitted to leave
for other purposes including to go to the doctor, the dentist, or the barber.
Accordingly, he asserted, the halfway house employees interfered with his right
to make and enforce contracts with potential employers, deprived him of income
he would have received as a result of this employment, and conspired to deprive
him of his constitutional rights, all because of his race. The district court
granted summary judgment in favor of the halfway house employees, and
We review de novo a district court’s grant of summary judgment. Nickell
v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary
judgment is proper if the evidence shows that there is no genuine dispute as to
a material fact. Id. If the moving party meets this initial burden, then the
burden shifts to the nonmovant to set forth specific evidence to support the
claims; the nonmovant may not simply rest on the allegations in the complaint
or on “conclusory allegations,” “unsubstantiated assertions,” or a mere “scintilla
of evidence.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir.), cert. denied,
131 S. Ct. 355 (2010) (internal quotation marks and citation omitted). We view
all facts and draw all inferences in the light most favorable to the party opposing
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010).
However, we may affirm on any basis supported by the record. Mid-Continent
Cas. Co. v. Bay Rock Operating Co., 614 F.3d 105, 110 (5th Cir. 2010).
As relevant here, § 1981 prohibits interfering with an individual’s right to
make or enforce a contract on the basis of race. Jackson does not allege that he
entered into or attempted to enter into any contract with the halfway house
employees; instead, he alleges that the employees interfered with his attempt to
contract with third parties. We have expressed doubt whether § 1981 extends
to an action against a party with whom the defendant has not contracted or
Date Filed: 06/20/2011
sought to contract. Bellows v. Amoco Oil Co., 118 F.3d 268, 274 (5th Cir. 1997).
In any event, Jackson has not produced sufficient evidence that he lost any
actual contract interest. See Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743,
751 (5th Cir. 2001). Jackson points only to his own general, unsubstantiated
assertions that he entered into or attempted to enter into contracts with two
staffing agencies, but he fails to produce any evidence of, or even describe, terms
or obligations under any contract or potential contract. At most, his allegations
amount to a mere scintilla of evidence, insufficient to survive summary
judgment. See Duffie, 600 F.3d at 371. Without any evidence of a tangible
contract interest, any potential contract that he might have entered into is at
most prospective and speculative and thus cannot form the basis of a § 1981
claim. See Morris, 277 F.3d at 751.
To the extent that Jackson’s claim is based on an alleged contract with the
halfway house, he cannot succeed. Even though Jackson signed numerous forms
attesting that he understood and would abide by the halfway house’s rules and
policies, none of these forms establish a commercial relationship between
Jackson and the halfway house. In any event, Jackson does not explain how the
employees’ actions interfered with any rights he may have had under any
agreement with the halfway house.
Section 1982 prohibits racial discrimination in inheriting, purchasing,
leasing, selling, holding, and conveying “real and personal property.” Jackson
argues that his rights to employment and to receive income from employment
constitute “property” for purposes of § 1982. Regardless whether Jackson is
correct, his claim fails. Unless a plaintiff establishes that a party or parties
impaired his ability to enter into a contract for property under § 1981, he cannot
establish a § 1982 claim for the deprivation of an interest in property. Morris v.
Office Max, Inc., 89 F.3d 411, 414 (7th Cir.1996); see also Tillman v. WheatonHaven Recreation Ass’n Inc., 410 U.S. 431, 439-40 (1973) (explaining that the
language of §§ 1981 and 1982 stem from the same source and construing the two
Date Filed: 06/20/2011
statutes together). Jackson simply has offered no evidence that the halfway
house employees interfered with any property transaction.
Jackson fares no better on his claims under §§ 1985(3) and 1986. Section
1985(3) prohibits conspiracies to deprive a person of equal protection of the laws
or of equal privileges and immunities under the laws on the basis of race.
Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Jackson cannot show that
any of the defendants conspired or otherwise agreed to deprive him of his rights.
Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979); see also Green v. State Bar of
Tex., 27 F.3d 1083, 1089 (5th Cir. 1994) (explaining that an “agreement among
the parties” is a necessary element of a § 1985(3) claim). Jackson points to his
affidavit and those of other halfway house residents (all of which are practically
identical) attesting that the halfway house employees “agreed and conspired” to
deny Jackson “equal rights and privileges,” but none of these conclusional
affidavits provides any discrete facts or details of how or when such an
agreement took place. Thus they are not competent evidence. See United States
v. $92,203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008) (recognizing
that an affidavit not based on personal knowledge is not admissible for purposes
of summary judgment). Moreover, the assertions that the defendants entered
into an agreement are unsupported by specific facts and thus do not create a
genuine issue for trial. See Clark v. America’s Favorite Chicken Co., 110 F.3d
295, 297 (5th Cir. 1997). Because Jackson’s § 1985(3) claim fails, his claim
under § 1986 necessarily fails as well. See Newberry v. E. Tex. State Univ., 161
F.3d 276, 281 n.3 (5th Cir. 1998).
Asserting that he was not permitted adequately to discover facts to
support his claims, Jackson next challenges the district court’s decision to deny
his motion to continue discovery under Federal Rule of Civil Procedure 56. The
district court did not abuse its discretion because Jackson has not adequately
explained how additional discovery would have created a genuine issue of
material fact. See Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161
Date Filed: 06/20/2011
(5th Cir. 2006). Jackson lists the additional discovery he seeks, but he fails to
address in his brief to this court how any of it would establish that the
defendants interfered with a contract interest. He contends that he was diligent
in seeking discovery, but he does not explain any acts that he took in trying to
obtain information regarding any contract negotiations with the staffing
agencies. As for evidence of a conspiracy to violate his rights, Jackson explains
that he seeks the identities of all of the halfway house employees and residents
so that he can obtain affidavits from them regarding, among other things,
whether the defendants denied him “equal rights.” At most, this amounts to a
vague assertion of what additional discovery might turn up; however, it is
insufficient to establish that the district court abused its discretion in not
granting a continuance. See id. at 162.
Jackson also challenges the district court’s decision to grant summary
judgment without holding a hearing and taking testimony. Jackson had no right
to a hearing; indeed, many district courts decide motions for summary judgment
without holding hearings. Johnson v. United States, 460 F.3d 616, 619, n. 2 (5th
Cir. 2006); Daniels v. Morris, 746 F.2d 271, 275 (5th Cir. 1984). The district
court acted within its discretion. Jackson had ample opportunity to present
evidence—in the form of affidavits and other documents—in opposition to the
employees’ motion for summary judgment.
Jackson has moved to supplement the record on appeal with documents
related to his disciplinary record and has asked this court to take judicial notice
of related documents. The halfway house employees have moved to strike these
motions and documents. Generally, we will not supplement the record with
evidence that was not before the district court, McIntosh v. Partridge, 540 F.3d
315, 327 (5th Cir. 2008); and Jackson has not provided a reason to depart from
this general rule. As for the motion to take judicial notice, the facts that Jackson
does present are not susceptible of accurate and ready determination and thus
are not amenable to judicial notice. See United States v. Herrera-Ochoa, 245
Date Filed: 06/20/2011
F.3d 495, 501 (5th Cir. 2001); F ED. R. E VID . 201(b), (f). In any event, the new
documents that Jackson would have this court consider would not change the
outcome of his appeal because they do not address the gaps in Jackson’s proof
addressed above, specifically Jackson’s alleged contractual relationships and any
alleged agreement among the employees to violate Jackson’s rights.
Jackson has also moved to disqualify opposing counsel and to strike the
halfway house employees’ brief, but he provides no legal grounds that entitle
him to this relief. And, we decline the halfway house employees’ request to
impose sanctions on Jackson.
The judgment of the district court is AFFIRMED. Jackson’s motions to
supplement the record on appeal, for judicial notice, to disqualify counsel, and
to strike the appellees’ brief are DENIED, and the halfway house employees’
motion to strike is GRANTED, but their request for extraordinary relief is
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