# Opposition Brief — Grey v. Dallas Independent Homeschool District, (2008) (No. 51)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

0 | (8) FILED

No. 08-51 AUG 0 8 2008
OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE
Supreme Court of the Gnited States

TIMOTHY GREY,
Petitioner,
v.

DALLAS INDEPENDENT SCHOOL DISTRICT,
MANUEL VASQUEZ, CEDRIC PORTLEY, DAN CLAXTON,
GARY HODGES, LUIS TAMEZ,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

RESPONDENT THE DALLAS INDEPENDENT
SCHOOL DISTRICT’S RESPONSE
IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

ERIC V. MOYE *
VINCENT | MOYE, P.C.
2001 Bryan Street
Suite 2000

Dallas, Texas 75201
(214) 979-7400

* Counsel of Record Counsel for Respondents

oe ER — PSR AR TE HO 2 EE EEO TP OER OES
WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED FOR REVIEW

Timothy K. Grey, (“hereinafter sometimes referred
to as “Petitioner” or “Grey”) submits the following
seven questions which he suggests are worthy of this
Court’s consideration of this case and review:

1..Does Grey’s record raises [sic] a genuine fact
issue as whether [sic] race was a motivating fac-
tor in his termination under Title VII Discrim-
ination? [sic] and the grievance filed on Febru-
ary 15, 2002 and May 2, 2002 in the Dallas
Independent School District Office of Employee
Relation establish [sic] as to whether he engaged
in a protected activity under Title VII Re-
taliation?

2. As a matter of law, did Grey engaged [sic] in a
protected activity under Title VII Retaliation
when he filed internal grievances on February
15, 2002, and May 2, 2002 in the Dallas
Independent School District Office of Employee
Relations.

3. Does Grey’s [sic] as a School Resource Police
Officer with the Dallas Independent School
District under Section 1983—Fourteenth Amend-
ment Liberty Interest have a protected liberty
interest because he was an employee of a gov-
ernmental employer who was publicly discharge
[sic] under stigmatizing circumstances?

4. As a School Resource Police Officer with the
Dallas Independent School District, under Sec-
tion 1983 [sic] Denial of Property Interest, does
Grey have a constitutional protected property
interest in his expectation of continued employ-
ment when the Dallas Independent School

(i)

il

District policy abrogates its rights to terminate
him without cause?

5. Was it an abuse of discretion to deny Grey
{sic] motion to compel when the defendants
withheld discoverable information that would
have change [sic] the outcome and the only ap-
parent justification was to adhere to a scheduling
order that was improperly imposed when Grey
was pro se? |

6. Was it an abuse of discretion to grant Defen-
dants’ motion for protective orders when defen-
dants failed to show good cause, and failed to
provide the certification required by Rule 26 (c)
Fed. R. Civ. P. and the only apparent justifi-
cation was adherence to an improperly imposed
scheduling order?

7. However, when Grey failed to respond to
defendants [sic] summary judgment motions was
caused by [sic] 1) improperly imposed sched-
uling orders, 2) Defendants’ refusal to meet their
discovery obligations, 3) erroneous rulings on
discovery motions, 4) excusable neglect due
to the inability of Grey’s attorney to prepare
the case in the available time, despite Grey’s
diligence, and the needed discovery would have
froduced evidence that would defeat summary
jadgment, should the judginent be vacated to
prevent manifest injustice?

Rather, the Dallas Independent School District,
(hereinafter sometin.2s referred to as “Respondent”
or the “District”) would respectfully show that these
sever are not the proper questions to be addressed
by this Court. Instead, the only proper questions

ili
presented by this litigation in accordance with SUP.
CT. R. 10. are as follows*:

1. Whether the Petitioner has presented
any compelling reasons to grant the Peti-
tion, where the Fifth Circuit’s decision
(affirming the District Court’s granting of
the Dallas Independent School District’s
Motion for Summary Judgment as _ to
Petitioner’s Title VII discrimination claim)
does not conflict with a decision of either
this Court or another Court of Appeals.

2. Whether the Petitioner has presented
any compelling reasons to grant the Peti-
tion, where the Fifth Circuit’s decision
(affirming the District Court’s granting of
the Dallas Independent School District’s
Motion for Summary Judgment as to Peti-
tioner’s retaliation claim) does not conflict
with a decision of either this Court or
another Court of Appeals.

3. Whether the Petitioner has presented
any compelling reasons to grant the Peti-
tion, where the Fifth Circuit’s decision
(affirming the District Court’s granting of
the Dallas Independent School District’s
Motion for Summary Judgment as to Peti-
tioner’s Fourteenth Amendment Due Proc-

* Petitioner apparently raises issues pertaining only to claims
that were brought against Respondent the Dallas Independent
School District in his Petition for Writ of Certivrari. The
Petition does not appear to raise any issues related to claims
brought against the Individual Defendants below. Accordingly,
this Response in Opposition addresses solely the issues as per-
taining to the Dallas Independent School District.

iV

ess claims for alleged violation of Peti-
tioner’s liberty and property interests) does
not conflict with a decision of either this
Court or another Court of Appeals.

4. Whether the Petitioner has presented
any compelling reasons to grant the Peti-
tion, where the Fifth Circuit’s decision
(affirming the District Court’s denial of
Petitioner’s Motion to Compel and granting
of the Dallas Independent School District’s
Motion for Protective Order) does not
conflict with a decision of either this Court
or another Court of Appeals, and where
Petitioner does not claim that the Fifth
Circuit’s ruling implicates an important
federal question that has not been settled
by this Court. .

5. Whether the Petitioner has presented
any compelling reasons to grant the Peti-
tion, where the Fifth Circuit’s decision
(affirming the District Court’s denial of
Petitioner’s Motion to Vacate Judgment)
does not conflict with a decision either of
this Court or another Court of Appeals, and
where Petitioner does not claim that the
Fifth Circuit’s ruling implicates an impor-
tant federal question that has not been
settled by this Court.

v
INTERESTED PARTIES

There are no parties to the proceeding other than
those named in the caption of the case.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW
INTERESTED PARTIES
TABLE OF AUTHORITIES
BRIEF IN OPPOSITION
OPINION BELOW

A. Proceedings in the District Court

B. Proceedings from the Court of Appeals ...
JURISDICTION

STATUTORY AND OTHER PROVISIONS
INVOLVED

“I hh WD NHK «KM <

~]

8
10

A. The District Court properly granted
Respondent’s Motion for Summary
Judgment

1. Petitioner failed to establish that the
Fifth Circuit's Opinion affirming the
District Court’s granting of Respon-
dent’s Motion for Summary Judg-
ment conflicts with decisions of this
Court or another Court of Appeals

. Petitioner failed to establish that the
Fifth Circuit’s Opinion affirming the
District Court’s granting of Respon-
dent’s Motion for Summary Judg-
ment on Petitioner’s Title VII dis-
crimination claim conflicts with deci-
sions of this Court or another Court
of Appeals

vill

TABLE OF CONTENTS—Continued

3. Petitioner failed to establish that

the Fifth Circuit’s Opinion affirming
the District Court’s granting of
Respondent’s Motion for Summary
Judgment on Petitioner’s Title VII
retaliation claim conflicts with
decisions of this Court or another
CI I iio os scceincncsdbaninetinnants

Petitioner failed to establish that
the Fifth Circuit’s Opinion affirming
the District Court’s granting of
Respondent’s Motion for Summary
Judgment on Petitioner's Fourteenth
Amendment Due Process claims
for alleged violation of Petitioner’s
liberty and property interests con-
flicts with decisions of this Court or
of another Court of Appeals................

S. TRE BIIE vvvcsicsesccicesecevenscconss
b. Property Interest..........ccccccccosescveres

The District Court properly ruled on the
Ee | REE aN ne are Rae eee OO are

iF

The District Court’s rulings on the
discovery motions are reviewed for
abuse of discretion. ................ss::eceeeeeen

The Fifth Circuit properly held that
the District Court did not abuse its
i CLR eR DIO Ena ae ER ore <1 OS ae

The District Court properly denied Peti-
tioner’s Motion to Vacate......................244.

Page

16

18
18
20

21

21

21

24

ix

TABLE OF CONTENTS—Continued

1. The denial of Petitioner’s Motion to
Vacate is reviewed for abuse of
EE RE IL Oa cS ae ERD

2. Petitioner provides no basis for
TI in iceatieahinvnngsbissensinisects

TT acs s cha oieeigcbtoaicss vbenesesecetctes

APPENDIX A—Copy of the District Court’s
Unpublished Memorandum Opinion and
Order dated December 30, 2005......................

APPENDIX B—Copy of the Fifth Circuit’s
Unpublished Per Curiam Opinion dated
I i SID wasnvecsodasysovsecexcennvonceosesncstecnees

APPENDIX C—Copy of the Fifth Circuit’s
Order Denying Petition for Rehearing............

Page

24

24
26

la

x

TABLE OF AUTHORITIES
FEDERAL STATUTES Page
Be Da citnenccccoscssecehenssnssorsencneenes 7
iia on cc cctbsbnescsavtomenssboniens 8, 20
42 U.S.C. § 2OOOKE]) Cf. 9EG. ...0.scccsccccscevecceveees 8
FEDERAL CASES

Abromitis v. Cont’l Cas. Co./CNA Ins. Co..,
No. 03-2425, 2004 U.S. App. LEXIS

23310 (4th Cir. Nov. 5, 2004) «0.0.0.0... 21
Amnesty Am. v. Town of W. Hartford, 288

Fk GE CRN GN s NO UED seve ccsnsniines teecrtcacsesses 13
Audi AG v. D’Amato, 469 F.3d 534 (6th

REESE RLS eee rt poe ac ve Nee 23

Aziz v. Groose, No. 95-2496, 1996 U.S.
App. LEXIS 402 (8th Cir. Jan. 12, 1996). 21
Banks v. E. Baton Rouge Parish Sch. Bd.,

320 F.3d 570 (5th Cir. 2003)..................... 16
Bennett v. Dr Pepper/Seven Up, Inc., 295

F’.3G 806 (Gth Cir, SOOZ)..........ccccscccccccccesee 13
Bishop v. Wood, 426 U.S.341, 96'S. Ct.

2074 (1976)............... EE SPE es eek Re tt 20, 21
Board of Regents v. Roth, 408 U.S. 564, 92

a a 19, 20
Casey v. Albertson’s, Inc., 362 F.3d 1254

i aaa es Se aan 24
Celotex Corp. v. Catrett, 477 U.S. 317, 106

ie eis i 12, 13
Draper v. Coombs, 792 F.2d 915 (9th Cir.

| RENEE NA OE Pi Be SR alert a ee SEE 23

Enwonwu v. Fulton-DeKalb Hosp. Auth.,
No. 07-13498, 2008 U.S. App. LEXIS
10372 (11th Cir. May 12, 2008)................ 21
Firestone v. Firestone, 76 F.3d 1205 (D.C.
i BE acietlscin eileen sibalheivs-alialslsaseietntiicieaihalbeaiocliol 25

xi
TABLE OF AUTHORITIES—Continued

Ford Motor Credit Co. v. Bright, 34 F.3d
322 (5th Cir. 1994)

Grady v. Affiliated Cent., Inc., 180 F.3d
553 (2d Cir. 1997)

Guarino v. Brookfield Township Trustees,
980 F.2d 399 (6th Cir. 1992)

Jones v. Sheehan, Young & Culp, P.C., 82
F.3d 1334 (5th Cir. 1996)

Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155
(1974)

Kafele v. Lerner, Sampson, Rothfuss,
L.P.A., No. 04-3659, 2005 U.S. App.
LEXIS 28680 (6th Cir Dec. 22, 2005)

Kessee v. Oklahoma, No. 94-6291, 1995
U.S. App. LEXIS 9948 (10th Cir. May 2,

McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973)

Muncy v. City of Dallas, 335 F.3d 394 (5th
Cir. 2003)

Richmond v. Oklahoma Univ. Bd. of Re-
gents, No. 97-5181, 1998 U.S. App.
LEXIS 26600 (10th Cir. Oct. 20,1998)

Shaheen v. Naughton, No. 05-6550-cv,
2007 U.S. App. LEXIS 3978 (2d Cir. Feb.
21, 2007)

Schwartz v. Emhart Glass Machinery, Inc.,
No. 07-45284, 2007 U.S. App. LEXIS
18355 (9th Cir. July 27, 2007)

Siegert v. Gilley, 500 U.S. 226, 111 S. Ct.
1789 (1991)

S/N Precision Enters. v. AxsysTechs, Inc.,
No. 07-0315-CV, 2008 U.S. App. LEXIS
11309 (2d Cir. May 27, 2008)

xii
TABLE OF AUTHORITIES—Continued
Page

St. Mary’s Honor Ctr., v. Hicks, 509 U.S.

502, 113 S. Ct. 2742 (19938)............scccccceeee 14, 15
In re Subpoena to Michael Witzel, No. 07-

2286, 2008 U.S. App. LEXIS 14470 (1st

Ge I BIE sicainncdcdsscnibeneinceusehtonseveese 21
Turnage v. Gen. Elec. Co., 953 F.2d 206
Se NN I ica lck cascicadesdidisuadvictssenvecsssees 23

Ullman v. Ohio Bureau of Empl. Servs.,
No. 98-3390, 1999 U.S. App. LEXIS

32226 (6th Cir. Dec. 3, 1999)............... 16, 17, 18
UNITED STATES DISTRICT
COURT CASK(S)
Bookman v. Shubzda, 945 F. Supp. 999
SE I sa cvuvewnchocevseuctilavedsurs 11
FEDERAL RULES
ET BUREN D .. sccseccseccouseserececouseres 22
I i I ID . .. .. cnccucnccocarveccesoosens 9, 24, 25
ee Be MIE) cecevcccccoscoccccssceceseccosoee 7
MISCELLANEOUS
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SE cs a ince dsauwcevenennsnenets 10

Pe ee MMe AUD cncesessoscecoscstsscaecizesssrscevens 22

IN THE

Supreme Court of the United States

No. 08-51

TIMOTHY GREY,
Petitioner,
i

DALLAS INDEPENDENT SCHOOL DISTRICT,
MANUEL VASQUEZ, CEDRIC PORTLEY, DAN CLAXTON,
GARY HODGES, LUIS TAMEZ,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

RESPONDENT THE DALLAS INDEPENDENT
SCHOOL DISTRICT’S RESPONSE
IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

COMES NOW the Dallas Independent School
District, Respondent herein, and files this its Oppo-
sition to Petition for Writ of Certiorari filed by
Timothy Grey. This Brief is filed in accordance with
SuP. CT. R. 10. By its opposition, Respondent respect-
fully prays that this Court deny the instant Petition
for the issuance of a writ of certiorari to review the
Judgment of the United States Court of Appeals for
the Fifth Circuit entered on February 14, 2008.

2
OPINION BELOW

A. Proceedings in the District Court

Petitioner filed his Original Complaint in this
matter pro se,’ on May 28, 2004. Contemporaneously
therewith, Petitioner filed his Motion for Leave to
Proceed In Forma Pauperis, which was granted on
July 19, 2004. On August 17, 2004, Respondent filed
its Original Answer, denying all material allegations
and interposing various affirmative defenses. On
that same day, Respondent filed a Motion for Partial
Judgment on the Pleadings.

Petitioner filed his Amended Complaint and Jury
Demand (“Complaint”) on March 31, 2005, asserting
race discrimination and retaliation claims pursuant
to Title VII, alleging violations of 42 U.S.C. § 1983,
42 U.S.C § 1985, as well as the First and Fourteenth
Amendments to the U.S. Constitution. Petitioner
‘also successfully invoked the supplemental juris-
diction of the District Court over a number of state
law claims including breach of contract, conspiracy,
intentional interference with contract, and defamation.

On April 11, 2005, Respondent filed its Answer to
Petitioner’s Amended Complaint, denying all mate-
rial allegations and interposing various affirmative
defenses.

"Contrary to his consistent representations to the District
Court and the Court of Appeals, Petitioner was assisted by duly
licensed counsel through virtually every material stage in this
matter. Indeed, Petitioner admitted in his deposition that he
was assisted throughout the course of this case by counsel in the
preparation of numerous pleadings, in the drafting of discovery
and the preparation for his deposition. That counsel may not
appear on current pleadings in this matter pursuant to an
Order of the Disciplinary Committee of the State Bar of Texas.

3

On May 11, 2005, Respondent filed its Second
Motion for Partial Judgment on the Pleadings.

On June 9, 2005, Petitioner was deposed. John D.
Copeland, Petitioner’s counsel during this matter,
appeared with the Petitioner for said deposition;
however, because Mr. Copeland had not previously
entered an appearance on behalf of Petitioner, the
District Court prohibited Mr. Copeland’s participa-
tion until after he appeared of record. More than two
months later, on August 25, 2005, Mr. Copeland filed
a Notice of Appearance on behalf of Petitioner, four
days before the close of discovery, as mandated by the
Court’s Scheduling Order.

Two days later, on August 26, 2005, Petitioner
noticed a number of depositions and otherwise sought
discovery from the Respondent. On that very same
day, Respondent filed its Motion for Protective Order
seeking relief from these discovery requests. On
August 31, 2005, the Court-imposed discovery dead-
line, Petitioner filed a Motion to Compel Responses to
Plaintiffs Interrogatories and Requests for Produc-
tion. On September 19, 2005, Respondent filed its
Response to Petitioner’s Motion to Compel.

On October 27, 2005, Respondent filed its Motion
for Summary Judgment and Brief in Support thereof.
On that same date, Respondent’s Appendix in
Support of its Motion for Summary Judgment was
also filed. Pursuant to Northern District of Texas
Local Rule 7.1(e), Petitioner’s Response to Respon-
dent’s Motion was due on November 16, 2005.
Petitioner filed no Response in opposition to the
Motion whatsoever, nor did he seek leave to extend
his deadline to respond.

4

On December 30, 2005, the District Court denied
Petitioner’s Motion to Compel and granted Respon-
dent’s Motion for Protective Order.

Also on December 30, 2005 (and approximately
seven weeks after Petitioner’s Response should have
been filed), the District Court entered a Memoran-
dum Opinion and Order granting Respondent’s
Motion for Summary Judgment. (A copy of the
Unpublished Memorandum Opinion and Order is
attached hereto as Appendix A.) Contemporaneously,
the District Court rendered its Judgment that
Petitioner take nothing by his suit and dismissed
Petitioner’s claims with prejudice.

On January 17, 2006, Petitioner (by and through
his counsel) filed his Motion to Vacate the Court’s
Judgment and Supporting Brief. On that same date,
Petitioner also filed his Affidavit in Support thereof,
as well as the Declarations of two individuals,
William Perry and Sophia Graham.

On January 31, 2006, Respondent filed its
Response to Petitioner’s Motion as well as objections
to the evidence attached thereto. On June 14, 2006,
the District Court denied Petitioner’s Motion to
Vacate Judgment.

B. Proceedings from the Court of Appeals

On July 10, 2006, Petitioner filed a Notice of
Appeal of the District Court’s June 16, 2006 Order
denying Petitioner's Motion to Vacate, and also
appealed the Court’s December 30, 2005 Memoran-
dum Opinion and Order granting Respondent’s
Motion for Summary Judgment.

On October 6, 2006, the Fifth Circuit Court of
Appeals issued a briefing notice in this matter

5

pursuant to which Petitioner’s Brief was due to be
filed on November 15, 2006. On November 14, 2006
(the day before the deadline for filing of his Brief),
Petitioner filed a Motion to Stay and to Extend Time
purportedly for the purpose of presenting a Motion
for Relief from Judgment to the District Court
pursuant to FED. R. CIv. P. 60(b).

On November 20, 2006, the Fifth Circuit granted in
part Petitioner’s Motion to Stay pending resolution of
the Motion for Relief. The Fifth Circuit directed that
the appellate proceedings would be stayed until the
later of December 31, 2006 or the date on which the
District Court ruled on the Motion for Relief.

On January 4, 2007, Petitioner finally filed his
Motion for Relief with the District Court. Thereafter,
on January 24, 2007, Respondent filed its Response
thereto. On February 25, 2007, the District Court
denied Petitioner’s Motion for Relief from Judgment.

On March 14, 2007, the Fifth Circuit issued a
notice resuming the briefing schedule. Pursuant to
this notice, Petitioner’s Brief was due on April 13,
2007. On April 16, 2007, Petitioner filed his Motion
to Extend Time for the filing of Petitioner’s Brief
until April 20, 2007. On April 20, 2007, the Fifth
Circuit granted Petitioner's Motion and extended
the deadline for the filing of Petitioner’s Brief to
April 20, 2007, the deadline chosen and requested by
Petitioner.

On May 3, 2007, almost two full weeks after the
expiration of the April 20, 2007 deadline for the
filing of Petitioner’s Brief, the Fifth Circuit sua
sponte dismissed the instant appeal pursuant to Fiftb
Circuit Rule 42 because of Petitioner’s failure to
timely file his Brief.

6

On July 11, 2007, more than two months after the
Fifth Circuit dismissed the instant appeal, Petitioner
filed his third Motion to Extend Time to File Peti-
tioner’s Brief. Contemporaneously therewith, Peti-
tioner transmitted his Petitioner’s Brief for filing.

On July 17, 2007, the Fifth Circuit’s Clerk entered
an Order denying Petitioner’s motion to reinstate the
appeal.

On July 30, 2007, Petitioner filed a Motion for
Reconsideration of the Clerk’s Order Denying the
Motion to Reinstate the case.

On August 17, 2007, this Court granted Peti-
tioner’s Motion for Reconsideration and reopened the
instant appeal. Also on August 17, 2007, the Clerk of
the Fifth Circuit filed Petitioner’s Brief in this
matter.

On November 2, 2007, Petitioner filed a Motion for
Leave to File Corrected Brief and on the same date,
filed Petitioner’s Corrected Brief.

On February 14, 2008, the Fifth Circuit rendered
a per curiam Opinion and Memorandum affirming
the opinion and order of the District Court granting
Respondent’s Motion for Summary Judgment. (A
copy of the Unpublished Per Curiam Opinion and
Memorandum is attached hereto as Appendix B.)
Contemporaneously therewith, the Fifth Circuit
rendered judgment affirming the District Court and
further ordered Petitioner to pay Respondent’s costs
on appeal.

On February 28, 2008, Petitioner filed a Petition
for Panel Rehearing. On March 18, 2008, the Fifth
Circuit denied the Petition for Rehearing as the
Petition was not filed in a timely manner in accord

7

with FED. R. APP. P. 40(a)(1). (A copy of the Order is
attached hereto as Appendix C.)

JURISDICTION

The jurisdiction of this Court has been invoked
pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND OTHER
PROVISIONS INVOLVED

Respondent respectfully directs this Court to SUP.

cr. zx.

10, “Considerations Governing Review on

Certiorari,” which provides as follows:

Review on a writ of certiorari is not a matter of
right, but of judicial discretion. A petition for
a writ of certiorari will be granted only for
compelling reasons. The following, although
neither controlling nor fully measuring the
Court’s discretion, indicate the character of the
reasons the Court considers:

(a)

(b)

a United States court of appeals has entered
a decision in conflict with the decision of
another United States court of appeals on
the same important matter; has decided an
important federal question in a way that
conflicts with a decision by a state court of
last resort; or has so far departed from
accepted and usual course of judicial pro-
ceedings, or sanctioned such a departure by
a lower court, as to call for an exercise of this
Court’s supervisory power;

a state court of last resort has decided an
important federal question in a way that
conflicts with the decision of another state

8

court of last resort or of a United States
court of appeals;

(c) a state court or a United States court of
appeals has decided an important question
of federal law that has not been, but should
be, settled by this Court, or has decided an
important federal question in a way that
conflicts with relevant decisions of this
Court.

- STATEMENT OF THE CASE

Former District employee Timothy Grey filed
claims against the Dallas Independent School Dis-
trict and five of its employees, Manuel Vasquez,
Cedric Portley, Dan Claxton, Gary Hodges, and Luis
Tamez, individually, pursuant to 42 U.S.C. §1983
(“Section 1983”) and 42 U.S.C. §§2000(e) et. seg.
(“Title VII”), alleging unlawful employment practices
on the basis of race and color.

Petitioner subsequently filed an Amended Com-
plaint in which he again asserted claims pursuant to
Section 1983 and Title VII, alleging unlawful prac-
tices on the basis of race. Petitioner also advanced
allegations of retaliation, conspiracy, denial of due
process, breach of contract by the Respondent and
intentional interference with contract on the part of
the individual Defendants. Finally, Petitioner as-
serted that he had been defamed by Defendant
Manuel Vasquez. Specifically, Petitioner alleged that
Respondent has an “unwritten official policy” of
denying Black employees’ grievances while granting
White employees’ grievances. Petitioner also alleged
that Respondent discriminated against him on
the basis of his race by denying his grievance rights
because he is African-American and disciplining

9

him more harshly than similarly situated White
employees.

Petitioner further claimed that the Respondent
retaliated against him by taking him off patrol duties
and assigning him to the headquarters building,
filing written internal complaints against him, plac-
ing him under investigation for illegitimate reasons,
taking away his police credentials, and refusing to
follow its appropriate grievance procedures.

The District Court properly granted Respondent’s
Motion for Summary Judgment for a number of
reasons. Primarily as a result of Petitioner’s failure
to file a response to Respondent’s Motion or to
otherwise proffer any controverting summary judg-
ment evidence whatsoever, Petitioner could not
satisfy his evidentiary burdens related to establish-
ing the claims on which he brought suit. Addition-
ally, Respondent established that each of Petitioner’s
claims failed as a matter of law. Moreover, most of
Petitioner’s claims were barred by limitations.

The District Court also did not abuse its discretion
in denying Petitioner’s Motion to Compel further
discovery responses because Respondent’s previous
discovery responses were both responsive and com-
prehensive. Moreover, the District Court did not
abuse its discretion in granting Respondent’s Motion
for Protective Order considering Petitioner’s last-
minute deposition notices were served literally on the
eve of the expiration of the discovery period.

Finally, the District Court did not abuse its
discretion in denying Petitioner’s Motion to Vacate
because the affidavit and declaration testimony he
sought to introduce into evidence before the District
Court was not “newly discovered” under any inter-
pretation as required pursuant to FED. R. CIv. P. 59(e).

10
REASONS FOR DENYING THE WRIT

A writ of certiorari should be granted only in the
face of compelling reasons. Sup. CT. R. 10. None-
theless, Petitioner fails to provide this Court with
any compelling reasons to grant the Petition. Even a
cursory review of the Petition reveals that it is
nothing more than Petitioner’s personal disagree-
ments with the District Court and the Fifth Circuit’s
decisions. The instant effort before this Court is
Petitioner’s latest improper attempt to re-litigate
Petitioner’s unfounded claims in yet another forum.

Furthermore, a petitioner’s failure to “present with
accuracy, brevity, and clarity whatever is essential to
ready and adequate understanding of the points
requiring consideration is sufficient reason for the
Court to deny the Petition.” SUP. CT. R. 14.4. The
Petition in this case completely lacks the required
accuracy, brevity and clarity of the points Petitioner
requests this Court to consider. Instead, the Petition
is practically a verbatim rehashing of the pleadings
he presented to the District Court and to the Court of
Appeals.

Most substantively, the decisions of the Fifth
Circuit to leave undisturbed the rulings of the
District Court do not conflict with any decision of this
Court or another United States Court of Appeals, nor
do they depart so far from the accepted and usual
course of judicial proceedings so as to warrant this
Court’s exercise of its supervisory power. Addi-
tionally, the decisions do not implicate an important
federal question in a way that conflicts with relevant
decisions of this Court. Sup. CT. R. 10. Petitioner
fails to provide opinions either of this Court or
any other court of appeals which conflict with the
decisions below. Petitioner also fails to show (or even

11

to allege) that the decisions of the District Court and
the Fifth Circuit’s affirmation of same depart from
the accepted and usual course of judicial proceedings.
For each of these reasons, the Petition should be
denied. There is simply nothing in this case worthy
of the time or consideration of this Court.

A. The District Court properly granted Re-
spondent’s Motion for Summary Judg-
ment.

1. Petitioner failed to establish that the
Fifth Circuit’s Opinion affirming the
District Court’s granting of Respon-
deni’s Motion for Summary Judgment
conflicts with decisions of this Court or
another Court of Appeals.

Petitioner contends that his Petition should be
granted because the District Court erred in granting
Respondent’s Motion for Summary Judgment against
Petitioner on his Title VII discrimination claim. At
the outset, it is important to note that Petitioner
makes this contention despite the fact that Petitioner
wholly failed to deliver to the trial court any evi-
dence to support opposition to the Motion. Indeed,
Petitioner failed to make any response to the Motion
for Summary Judgment whatsoever. Thusly, Peti-
tioner completely and without excuse failed to support
his Title VII discrimination claim in the District
Court. While it is true that a pro se litigant’s
response to a summary judgment motion should be
construed liberally, it does not excuse this litigant, as
the party bearing the burden of proof, from setting
forth specific facts supporting his claims. Bookman uv.
Shubzda, 945 F. Supp. 999, 1004 (N.D. Tex. 1999)
(citing Jones v. Sheehan, Young, & Culp, P.C., 82
F.3d 1334, 1338 (5th Cir. 1996)).

12

The District Court noted that Petitioner, while he
responded to Respondents’ two Motions to Dismiss,
completely failed to respond to Respondents’ Motions
for Summary Judgment. Accordingly, the District
Court found that Petitioner failed to come forward
with any summary judgment evidence supporting
his claims or refuting the defenses as raised by
the Respondent.

Of course, the Fifth Circuit had no choice but to
affirm, holding that summary judgment was appro-
priate because Petitioner did not carry his burden to
“designate specific facts showing that there is a
genuine issue for trial.” Appendix B, pp. 19a-20a.

This Court has previously addressed this issue of a
district court’s granting of a motion for summary
judgment where a nonmovant fails to file a response
or any evidence. This Court has held, where [as
here] a nonmovant for summary judgment bears the
burden of proof at trial, that nonmovant must respond
to the motion for summary judgment by going beyond
the pleadings and by his own affidavits, depositions
or answers to discovery designate “specific facts show-
ing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324; 106 S. Ct. 2548,
2553 (1986). Ignoring this self-evident proposition,
the Petitioner failed to do anything whatsoever in
response. As the responding party to the Motion for
Summary Judgment, Petitioner bears the burden of
proof on his claims. Not only did Petitioner fail to
provide any evidence, Petitioner did not even bother
to file a response.

Not surprisingly, there is uniformity among the
Circuit Courts on this issue. The Fifth Circuit
has expressly held that district courts are under
no obligation to “search the record” for evidence to

13

support the nonmovant’s case. Jones, 82 F.3d at
1338 n.3. At least three other circuits agree. The
Second Circuit, in Amnesty America v. Town of West
Hartford, 288 F.3d 467 (2d Cir. 2002), held that it
agreed with other circuit courts that hold that
district courts are under no obligation to perform an
independent review of the record to find a factual
dispute. Id. at 470. The Sixth Circuit, in Guarino v.
Brookfield Township Trustees, 980 F.2d 399 (6th Cir.
1992), specifically rejected the notion that the trial
court should make its own investigation of the record
and emphasized the importance of requiring a
litigant to file a response. Jd. at 405. The Eighth
Circuit likewise has held that counsel-free status
does not entitle the pro se litigant to disregard the
Federal Rules of Civil Procedure by failing to file a
response to a summary jtiidgment motion. Bennett
v. Dr Pepper/ Seven Up, Inc., 295 F.3d 805, 808 (8th
Cir. 2002). Thus, the decisions below are consistent
with those of this Court and other courts of appeals.

Throughout the Petition, the Petitioner character-
izes facts alleged in his pleadings as “evidence” and
urges this Court to grant Petition based on the
“evidence.” However, following this Court’s previous
holding in Celotex, the Petitioner, as nonmovant,
needed to go beyond the pleadings and identify in
the record specific facts establishing genuine issues
for trial, which Petitioner utterly failed to do. See
Celotex, 477 U.S. at 324. Accordingly, the District
Court applied the proper summary judgment
standard and correctly granted Respondent’s Motion
for Summary Judgment. Petitioner does not provide
any compelling reasons why the Petition should be
granted in this regard.

14

2. Petitioner failed to establish that the
Fifth Circuit’s Opinion affirming the
District Court’s granting of Respon-
dent’s Motion for Summary Judgment
on Petitioner’s Title VII discrimination
claim conflicts with decisions of this
Court or another Court of Appeals.

The District. Court properly granted Respondent’s
Motion for Summary Judgment because Petitioner
failed to establish a prima facie case of Title VII race
discrimination. The District Court held that even if
Petitioner had been able to establish such a prima
facie case, Respondent rebutted any presumption of
discrimination by offering legitimate non-discrimina-
tory reasons for terminating Petitioner’s eimploy-
ment. Again, the Fifth Circuit’s opinion affirming the
District Court is entirely consistent with precedent
set by this Court and followed in other circuits.
Petitioner fails to show that this opinion conflicts
with decisions of any other Court of Appeals.
Petitioner does not provide any other compelling
reason to grant the Petition as to his Title VII
discrimination claim.

This Court has held in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802; 93S. Ct. 1817, 1824 (1973),
that to establish a prima facie case of discrimination,
the plaintiff must establish by a preponderance of the
evidence that (1) he is a member of a protected class;
(2) he qualified for the position held; (3) he was
subject to an adverse employment action; and (4) the
position remained open and was filled by a person
in another race. Jd. See also St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506; 113 S. Ct. 2742,
2747 (1993).

15

In the instant case, Petitioner failed to provide any
evidence whatsoever to support his Title VII claim
for discrimination. Therefore, the District Court
properly held that Petitioner failed to establish a
prima facie case of discrimination. Petitioner does
not challenge or even attempt to address the District
Court’s ruling that Petitioner failed to establish a
prima facie case of discrimination. Instead, Peti-
tioner merely asserts that the District Court erred
in its ruling on his Title VII discrimination claim
because the two grievances Petitioner filed against
Respondent somehow proved his allegation of inten-
tional discrimination. This is the same unsupported
argument Petitioner made below, which was rejected
each time proffered.

On their face, Petitioner’s arguments are simply
frivolous. For example, Petitioner argues that
“(since petitioner was a young, black, male, it is
reasonable to assume that his complaint was race
discrimination, but it matters not what kind of
discrimination he complained of, it only matters that
he complained of discrimination within the ambit of
the EEOC.” See Petition for Writ of Certiorari, p. 24
(emphasis added). This argument does not even
approach the standard for establishing a Title VII
discrimination claim as held by this Court. More-
over, this Court has expressly provided that it has
“no authority to impose liability upon an employer for
alleged discriminatory employment practices unless
an appropriate fact finder determines, according to
proper procedures, that the employer has unlawfully
discriminated.” St. Mary’s Honor Ctr., 509 U.S. at
514. In this case, the District Court, through its
analysis, determined that Petitioner failed to
establish that Respondent unlawfully discriminated.
Thus, Petitioner’s attempt to request this Court to

16

hold Respondent liable for unlawful discrimination
via a writ of certiorari is improper.

Additionally, the District Court held that even it
had somehow found that Petitioner did establish a
prima facie case of discrimination under Title VII,
Respondents provided ample evidence of legitimate,
non-discriminatory reasons for the adverse employ-
ment action, which Petitioner failed or even
attempted to show were pretext. Thus, the District
Court properly granted summary judgment, and the
Fifth Circuit properly affirmed that decision. These
opinions below are consistent with previous decisions
of this Court. Tellingly, Petitioner does not cite a
single opinion of other courts of appeals that
conflicts, and thus, Petitioner fails to provide any
compelling reasons why this Court should reconsider.

3. Petitioner failed to establish that the
Fifth Circuit’s Opinion affirming the
District Court’s granting of Respon-
dent’s Motion for Summary Judgment
on Petitioner’s Title VII retaliation
claim conflicts with decisions of this
Court or another Court of Appeals.

It is well settled throughout the United States
Courts of Appeals that to establish a claim for Title
VII retaliation, a plaintiff must make a prima facie
case by showing that (1) he engaged in a protected
activity under Title VII, (2) an adverse employment
action occurred, and (3) there was a causal link
that existed between the protected activity and the
adverse action. Banks v. E. Baton Rouge Parish Sch.
Bd., 320 F.3d 570, 757 (5th Cir. 2003); see also, e.g.,
Ullman v. Ohio Bureau of Empl. Servs., No. 98-3390,
1999 U.S. App. LEXIS 32226, *15-16 (6th Cir. Dec. 3,

17

1999), Richmond v. Oklahoma Univ. Bd. of Regents,
No. 97-5181, 1998 U.S. App. LEXIS 26600, *5 (10th
Cir. Oct. 20, 1998). In this case, the District Court
held that Petitioner failed to establish a prima facie
case of Title VII retaliation because he did not prove
that he engaged in a protected activity.

Petitioner argues that he engaged in a protected
activity (1) when he stated to his superiors that, if
they wanted to talk [about his suspended drivers
license], they needed to talk to his attorney, and
(2) when he filed a grievance against his employer.
The District Court and the Fifth Circuit both held
that Petitioner failed to prove that these two alleged
activities are protected under Title VII. The Fifth
Circuit pointed out that his grievance did not men-
tion race or any other allegation of discrimination
violative of Title VII. Petitioner, in a desperate
attempt to show that the grievance was a protected
activity under Title VII, points out that the grievance
stated that other officers who were insubordinate
and disrespectful were not disciplined. As this
response also falls far short of the standard clearly
established, the Fifth Circuit correctly found that
Petitioner did not demonstrate that he engaged in a
protected activity under Title VII.

The Fifth Circuit’s opinion is consistent with at
least one other court of appeals. In Ullman v. Ohio
Bureau of Employment Services, No. 98-3390, 1999
U.S. App. LEXIS 32226, *15-16 (6th Cir. 1999), the
Sixth Circuit found that protected activity under
Title VII was not established where a terminated
employee filed a charge against her employer com-
plaining of the discharge or discipline of fellow
employees for alleged civil rights violations. Jd. at 16
n.6. The Sixth Circuit held that “none of the claims

18

involved opposition to Title VII violations and thus
did not constitute protected activity.” Id. at *16. As
in the Ullman case, Petitioner also complains that
the grievances he filed against Respondent, although
the grievance does not even mention any activities
that fall under the protection of Title VII, constituted
protected activity. However, Petitioner’s claims do
not involve “opposition to Title VII violations” and do
not constitute protected activity. See id. The Fifth
Circuit properly held that Petitioner failed to estab-
lish that he engaged in any protected activity.
Fatally, Petitioner fails to provide any decisions of
this Court or another court of appeals to the contrary.

4. Petitioner failed to establish that the
Fifth Circuii’s Opinion affirming the
District Court’s granting of Respon-
dent’s Motion for Summary Judgment
on Petitioner’s Fourteenth Amendment
Due Process claims for alleged viola-
tion of Petitioner’s liberty and property
interests conflicts with decisions of this
Court or of another Court of Appeals.

a. Liberty Interest

Without a scintilla of factual support, Petitioner
asserted that .ie had liberty and property interests
that were violated by the Respondent. To the
contrary, the District Court correctly ruled that
Petitioner does not have a protected liberty interest
in his reputation or good name. The District Court,
in making this decision, relied on well-settled prece-
dent established by this Court. Its decision was
based on Siegert v. Gilley, 500 U.S. 226; 111 S. Ct.
1789; 114 L. Ed. 2d 277 (1991) and Paul v. Davis, 424
U.S. 693; 96 S. Ct. 1155; 47 L. Ed. 2d 405 (1976). In

19

these cases, this Court expressly held that injury to
reputation or name is not a constitutionally-protected
liberty interest. Jd. Accordingly, the District Court
and the Fifth Circuit’s opinions were entirely con-
sistent with the opinions of this Court.

Here, Petitioner argues that he is not asserting his
Fourteenth Amendment claim on the basis of mere
damage to his reputation, but rather on the basis
that he was a public employee who was discharged on
false charges, directing this Court to Board of
Regents v. Roth, 408 U.S. 564, 573 (1972), in support
of this argument. Roth stands for the proposition
that a public employee has a protected liberty
interest that is violated if he shows that the

governmental employer discharged him on
false charges that might seriously damage his
standing and association in his community

im : r_ disability. /d.
(emphasis added).

Petitioner’s argument is without merit for several
reasons. First, Petitioner did not even attempt to
establish that he was discharged based upon on false
charges. Indeed, Petitioner himself acknowledges
that the grounds for his termination were (1) insub-
ordination, (2) refusal to comply with policies,
(3) conduct causing loss of confidence in the District,
(4) failure to meet acceptable standards of conduct,
and (5) tardiness or excessive absences. He does not
refute these bases for termination or otherwise
declare their falsity. The record is clear Petitioner
does not deny these charges but only asserts that
they are stigniatizing and that he is unable to get
a job elsewhere as a consequence. The District
Court and Fifth Circuit found that the District’s

20

grounds were supported by more than_ sufficient
evidence. Petitioner completely failed to produce

any evidence to the contrary. Petitioner also failed
to provide any evidence that these charges caused
serious damage to his standing and association in the
community or imposed a stigma. Accordingly, Roth is
inapplicable to the facts of this case, and Petitioner
failed to show that he was discharged under false
charges.

b. Property Interest

This Court has held that a Fourteenth Amendment
property interest may arise in one’s employment,
however, the “sufficiency of the claim of entitlement
must be decided by reference to state law.” Bishop v.
Wood, 426 U.S. 341, 344; 96 S. Ct. 2074, 2077; 48 L.
Ed. 2d 684, 690 (1976). Under Texas law, there is a
presumption that employment is at-will and does not
create a property interest in employment unless that
relationship has been expressly altered in one of two
ways: (1) by contract, or (2) by express rules or polli-
cies limiting the conditions under which an employee
may be terminated. Muncy v. City of Dallas, 335
F.3d 394, 398 (5th Cir. 2003).

The District Court held that Petitioner failed to
demonstrate a Fourteenth Amendment protected
property interest in his employment pursuant to
section 1983 because although he alleged in his
complaint that he was employed pursuant to a
written employment contract, he failed to produce the
contract or any evidence of the existence of the
contract. By contrast, the Respondent produced
evidence that Petitioner, as support staff, did not
have a written contract, but was an at-will employee.
Accordingly, the Fifth Circuit properly affirmed the

21

District Court’s decision that Petitioner, as an at-will
employee, did not have a property interest in his
employment. This decision is entirely consistent with
previous decisions of this Court, see e.g., Bishop, 426
U.S. 345-47, and Petitioner fails to provide this Court
with any other compelling reasons as to why Petition
should be granted in this case.

B. The District Court properly ruled on the
discovery motions.

1. The District Court’s rulings on the
discovery motions are reviewed for
abuse of discretion.

Petitioner next asserts that the District Court
erred in ruling on discovery motions. Appellate
courts review a district court’s rulings on discovery
motions for abuse of discretion. See eg., In re
Subpoena to Michael Witzel, No. 07-2286, 2008 U.S.
App. LEXIS 14470, *10-11 (1st Cir. July 7, 2008);
S/N Precision Enters. v. AxsysTechs, Inc., No. 07-
0315-CV, 2008 U.S. App. LEXIS 11309, *2 (2d Cir.
May 27, 2008); Enwonwu v. Fulton-DeKalb Hosp.
Auth., No. 07-13498, 2008 U.S. App. LEXIS 10372, *7
(11th Cir. May 12, 2008); Abromitis v. Cont’l Cas.
Co./CNA Ins. Co., 114 Fed. Appx. 57, 61; No. 03-
2425, 2004 U.S. App. LEXIS 23310, *8 (4th Cir. Nov.
5, 2004); Aziz v. Groose, No. 95-2496, 1996 U.S. App.
LEXIS 402, *6 (8th Cir. Jan. 12, 1996); Kessee v.
Oklahoma, No. 94-6291, 1995 U.S. App. LEXIS 9948,
*4 (10th Cir. May 2, 1995).

2. The Fifth Circuit properly held that
the District Court did not abuse its
discretion.

The Fifth Circuit, in its review of the District
Court’s rulings on the discovery motions (Petitioner’s

22

Motion to Compel and Respondent’s Motion for
Protective Order) that the Petitioner asks this Court
to review, properly found that the District Court did
not abuse its discretion.

Petitioner merely argues that had the District
Court granted his Motion to Compel and denied
Respondent’s Motion for Protective Order, the sub-
stantive outcome below would have been different.
However, this does not impact Petitioner’s claim
here. The undisputed facts are that Petitioner
sought depositions of elected District officials (with
one day’s notice) four days before the close of
discovery. He then filed a Motion to Compel further
discovery from Respondent literally on the eve of the
discovery deadline. The District Court denied Peti-
tioner’s Motion to Compel and granted Respondent’s
Motion for Protective Order based upon the unrea-
sonableness of these requests.”

The Fifth Circuit specifically held that Petitioner's
arguments were without any merit for several rea-
sons. First, the Discrict Court expressly found that
Respondent’s previous discovery responses were
reasonable and complete. The District Court held
that the entry of a protective order due to impending

* Petitioner erroneously asserts that Northern District of
Texas “Local Rule 16.1(f) exempts pro se cases fro [sic] the
scheduling and case management procedures of Rule 16(b)” of
the Federal Rules of Civil Procedure. (See Petition, p. 11.) N.D.
TEX. L.R. 16.1(f) provides that pro se plaintiff cases are exempt
from the scheduling and planning requirements of FED. R. CIv.
P. 16(b). However, FED. R. Civ. P. 16(b) exempts pro se plain-
tiffs only from appearing at scheduling conferences or having to
consult with the district or magistrate judge regarding the
scheduling order. Jd. It does not exempt the pro se plaintiff
from complying with the scheduling order once issued by the
district or magistrate judge. See id.

23

discovery deadlines is not an abuse of discretion.
See Turnage v. Gen. Elec. Co., 953 F.2d 206, 209 (5th
Cir. 1992).

Other circuit courts agree with the Fifth Circuit’s
review of the District Court’s rulings on the discovery
motions. The Second Circuit has held that “the
management of discovery lies within the sound
discretion of the district court, and the court’s rulings
on discovery will not be overturned on appeal without
abuse of discretion.” Grady v. Affiliated Cent., Inc.,
130 F.3d 553, 561 (2d Cir. 1997). The Sixth and
Ninth Circuits follow the rule that district courts
have wide discretion to conclude discovery. See, e.g.,
Audi AG v. D’Amato, 469 F.3d 534, 541-42 (6th Cir.
2006); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.
1986). As in this case, the Second Circuit has held
that the denial of discovery requests propounded by
a recalcitrant litigant on the eve of the discovery
deadline is not an abuse of discretion. See Shaheen v.
Naughton, 222 Fed. Appx. 11; No. 05-6556-CV, 2007
U.S. App. LEXIS 3978 at *2 (2d Cir. Feb. 21, 2007).

Thus, the argument that any further discovery
responses from Respondent would have changed the
outcome is an unfounded and irrelevant conclusion,
and the District Court below was well within its
discretion to make the discovery rulings that it did.
Petitioner does not provide this Court with any
compelling reason why Petition should be granted
on the District Court’s discovery rulings. Petitioner
likewise fails to point to any opinions of this Court or
another court of appeals which conflict with the
decision of the Fifth Circuit in this case. The Fifth
Circuit correctly applied the abuse of discretion
standard to the District Court’s rulings, and Petitioner
provides this Court with absolutely no compelling
reason why the Petition should be granted.

24

C. The District Court properly denied
Petitioner’s Motion to Vacate.

1. The denial of Petitioner’s Motion to
Vacate is reviewed for abuse of
discretion.

The denial of a motion to vacate pursuant to FED.
R. Civ. P. 59(e) is also reviewed for abuse of
discretion. Ford Motor Credit Co. v. Bright, 34 F.3d
322, 324 (5th Cir. 1994); see, e.g., Schwartz v. Emhart
Glass Machinery, Inc., 235 Fed. Appx. 503; No. 07-
55281, 2007 U.S. App. LEXIS 18355, *1-2 (9th Cir.
July 27, 2007) (holding that orders denying or grant-
ing motion to vacate are reviewed for abuse of discre-
tion) (citing Casey v. Albertson’s, Inc., 362 F.3d 1254,
1257 (9th Cir. 2004)). Here, the District Court
did not review the additional materials Petitioner
submitted with his Motion to Vacate because they
were not “newly discovered” as required by Rule
59(e), as they were fully available evidence at the
time of summary judgment (including Petitioner’s
own declaration).

2. Petitioner provides no _ basis _ for
reconsideration.

Petitioner fails to provide any reasons as to why he
believes the District Court abused its discretion in
denying Petitioner’s Motion to Vacate. Petitioner
argues only that the judgment should be vacated
because Petitioner’s failure to file a response to
Respondent’s Motion for Summary Judgment was
caused by:

¢ improperly imposed scheduling orders;

e Defendants’ refusal to meet their discovery
obligations;

25
e erroneous rulings on discovery motions; and

e excusable neglect due to the inability of Grey’s
attorney to prepare the case in the available
time.

None of these arguments are supported by any
evidence or the record itself.

Indeed, the Fifth Circuit in this case held that Rule
59(e) motions to vacate or amend a judgment “must
clearly establish either a manifest error of law or fact
or must present newly discovered evidence.” See
Appendix B, p. 25a. None of the reasons offered by
Petitioner establish any manifest error of law or fact.
Moreover, the District Court specifically found that
the evidence attached by Petitioner to his Motion to
Vacate was available at time the Motion for Sum-
mary Judgment was pending, and therefore should
have been a part of a timely-made response to the
summary judgment. Thusly, it did not constitute
“newly discovered evidence.”

The Fifth Circuit’s opinion is completely consistent
with the standards governing a motion to vacate in
other circuit courts. For example, in Kafele v. Lerner,
Sampson, Rothfuss, L.P.A., 161 Fed. Appx. 487; No.
04-3659, 2005 U.S. App. LEXIS 28680 (6th Cir. Dec.
22, 2005), the Sixth Circuit, in agreement with the
Ninth Circuit, affirmed the district court’s denial of a
motion to vacate because there was not “previously
unavailable evidence, clear crror of law, or manifest
injustice.” Jd. at *10. (citing Firestone v. Firestone,
76 F.3d 1205, 1208 (D.C. Cir. 1996)). Petitioner fails
to guide this Court to a single decision of this Court
or another court of appeals to the contrary.
Accordingly, this Petition should be denied.

26
CONCLUSION

None of the questions raised by this matter present
any compelling reasons to grant the Petition. Peti-
tioner fails to present any compelling reason for this
Court to review the Fifth Circuit’s decision affirming
the District Court’s granting of Respondent’s Motion
for Summary Judgment. Petitioner likewise fails to
give any compelling reason for this Court to review
the Fifth Circuit’s decision affirming the District
Court’s rulings on the discovery motions. Finally,
Petitioner does not present any compelling reason for
this Court to review the Fifth Circuit’s decision
affirming the District Court’s denial of Petitioner’s
Motion to Vacate. For the foregoing reasons, Re-
spondent prays that this Honorable Court decline to
issue a writ of certiorari in the instant matter.

Respectfully submitted,

ERIC V. MOYE *
VINCENT | MOYE, P.C.
2001 Bryan Street
Suite 2000

Dallas, Texas 75201
(214) 979-7400

* Counsel of Record Counsel for Respondents

Of Counsel:

DAWN KAHLE DOHERTY
EUNICE E. KIM
VINCENT | Moye, P.C.
2001 Bryan Street
Suite 2000

Dallas, Texas 75201
(214) 979-7400

27

Of Counsel for Respondent
Manuel Vasquez:

TODD R. HIXON

HAAKON T.. DONNELLY
BELLINGER & DEWOLF, L.L.P.
10,000 N. Central Expressway,
Suite 900

Dallas, Texas 75231

(214) 954-9540

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1108%3A2. Public record. Not legal advice.