Macklin v. City of New Orleans, 01-31039. Summary Calendar.

• Decision Date: 31 May 2002
• Docket Number: No. 01-31039. Summary Calendar.,01-31039. Summary Calendar.
• Citation: 293 F.3d 237
• Parties: Albert MACKLIN, Plaintiff-Appellant, v. The CITY OF NEW ORLEANS, Etc.; et al., Defendants, The City of New Orleans, a municipal corporation; Richard Pennington, New Orleans Police Chief, in his individual and official capacity; Marc Morial, Mayor of the City of New Orleans, in his official and individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F.3d 237

Albert MACKLIN, Plaintiff-Appellant, v. The CITY OF NEW ORLEANS, Etc.; et al., Defendants, The City of New Orleans, a municipal corporation; Richard Pennington, New Orleans Police Chief, in his individual and official capacity; Marc Morial, Mayor of the City of New Orleans, in his official and individual capacity, Defendants-Appellees.

No. 01-31039. Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 31, 2002.

Kenneth Michael Plaisance, New Orleans, LA, for Plaintiff-Appellant.

Franz L. Zibilich, Eileen Patricia Comiskey, New Orleans, LA, for Defendants-Appellees.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:

In this civil rights case, a dismissed police officer appeals the district court's entry of summary judgment against him. For the reasons that follow, we affirm the judgment of the district court and order appellant and his counsel to show cause why they should not be sanctioned for making frivolous arguments on appeal.

I

Appellant Albert Macklin ("Macklin") served as a police officer in the New Orleans Police Department (the "Department") until his dismissal from the force after a January 28, 1998 off duty incident in which he struck a man over the head with his police baton. Although at the time of the incident Macklin was on suspension for a separate violation, he was wearing a police badge, had a police radio, and was at a gas station where he routinely worked a police detail. Macklin failed to seek medical treatment for the victim and also failed to report the incident to his supervisors. On May 6, 1999 he was arrested for aggravated battery, and on May 10, 1999 the Department suspended him for 180 days. An internal investigation by the Department's Public Integrity Division found that Macklin was the aggressor in the incident and was repeatedly untruthful to investigators. It further determined that Macklin had not offered any mitigating evidence at a disciplinary hearing. Macklin was therefore dismissed from the police force on February 18, 2000. He was given the right to appeal his termination to the Civil Service Commission (the "Commission"). The Commission held two hearings on Macklin's appeal, at which he was represented by counsel. After reviewing the evidence, the Commission upheld Macklin's dismissal.

After he was acquitted on the criminal charge, Macklin filed suit against appellees the City of New Orleans (the "City"), Police Chief Richard Pennington, and Mayor Marc Morial. He alleged claims of employment discrimination, false arrest, and violations of his constitutional rights. On July 10, 2001, the City filed a motion for summary judgment. Macklin, who had filed his own motion for summary judgment months earlier, failed to respond to the city's motion. Therefore, on August 3, 2001, the district court in a minute entry granted summary judgment in favor of the city pursuant to Local Rule 7.5E, which requires the filing of an opposition no later than eight days prior to the hearing scheduled for the motion.

Macklin filed a notice of appeal from that minute entry on August 27, 2001. Although Macklin stated in his notice of appeal that "[t]he Court has dismiss [sic] with finality plaintiff's entire case[,]" only the claims against the City had been dismissed in the August 3, 2001 order. The district court then fixed this omission by issuing a minute entry on September 5, 2001 stating that its previous order "should have included a dismissal as to the plaintiff's claims against defendants Richard Pennington and Marc Morial." In this second order, the district court indicated that Macklin would have fifteen days to file a motion for reconsideration.

On Macklin's motion for reconsideration, the district court reset its hearing on both Macklin's and the defendants' motions for summary judgment. On November 20, 2001, the district court granted defendants' motion and denied Macklin's motion. Six days later, on November 26, 2001, the district court entered judgment in favor of defendants. Macklin filed his second notice of appeal on November 29, 2001, again stating that "[t]he Court has dismiss [sic] plaintiff's entire case."

II

Macklin challenges the district court's grant of summary judgment, which we review de novo.¹ See Mason v. United Air Lines, Inc., 274 F.3d 314, 316 (5th Cir.2001). Specifically, Macklin complains that (1) the district court's application of its local rules violated "principles of right and justice" as well as Macklin's right to equal protection, (2) the district court erred in granting summary judgment against him, and, in doing so, circumvented Macklin's right to trial by jury, and (3) the district court erroneously rejected Macklin's equal protection and due process claims. We address these issues in turn.

A.

First, Macklin contends that the district court's application of its local rules was "inconsistent[] with the principles of right and justice and arbitrarily discriminate[d] against" him. In particular, he complains that the district court discriminated against him when it extended filing deadlines that the City was unable to meet. We review the district court's administrative handling of a case, including its enforcement of the local rules and its own scheduling orders for abuse of discretion. See Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 509 (5th Cir.1999). The City explains that at the time of the filing dates in question, it was experiencing a large staff turnover and was having difficulty meeting court deadlines. In light of these circumstances, it was within the discretion of the district court to extend some filing deadlines. As there is no indication that the district court exercised leniency unfairly or otherwise improperly prejudiced Macklin, we find no abuse of discretion.

Macklin also argues that the district court's application of Fed.R.Civ.P. 56 and its local rules violated his right to equal protection and that Rule 56 facially violates equal protection. This argument need not detain us long. His candid, if inartfully phrased, admission that "[a]fter extensive research of federal case law for decisions setting the equal protection requirement for district court to apply the rules equally, but have found few cases on point" suggests the weakness of his claim. The only "discriminatory" treatment he identifies is the district court's decision to grant the City two continuances on its response to Macklin's summary judgment motion. He does not even assert that such an option was denied to him when he was filing a response to the City's motion for summary judgment. Moreover, he provides no explanation of how Rule 56 is discriminatory on its face.

B.

Macklin further contends that the district court erred by granting summary judgment against him, and by doing so circumvented his right to a jury trial. Macklin fails, however, to identify a single issue of fact, relying instead on the vague assertion that "[t]he evidence is such that a reasonable jury could return a verdict in favor of the appellant." In this case, the district court issued an opinion explaining its reasons for granting summary...