               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-20466
                         Summary Calendar


BEKEE C. NWAKANMA, Ed.D.,

                                         Plaintiff-Appellant,

versus

STEVE WALLER, DEBORAH TOMLIN, WAYNE SCOTT,

                                         Defendants-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-97-CV-893
                       - - - - - - - - - -
                        February 12, 1999

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

     Bekee C. Nwakanma, appearing pro se, appeals the summary

judgment in favor the defendants dismissing all claims.   He also

appeals the district court’s denial of default judgment and he

has filed a motion for default judgment in this court because the

appellees did not file their brief in a timely manner.    Contrary

to Nwakanma’s allegations, the appellees requested leave to file

an out-of-time brief, which was granted by this court.

Furthermore, there is no default judgment in appellate practice.

The motion is DENIED.


     *
        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that this opinion should not be published and is not precedent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.
                             No. 98-20466
                                  -2-

     Nwakanma alleged civil rights violations based on his race

and national origin and brought claims under Title VII and 42

U.S.C. §§ 1981 and 1983.    To state a claim under Title VII for

employment discrimination, the plaintiff must establish a prima

facie case that the defendant employer made an employment

decision that was motivated by a protected factor, such as race

or national origin.     McDonnell-Douglas Corp. v. Green, 411 U.S.

792, 802 (1973); Mayberry v. Vought Aircraft Co., 55 F.3d 1086,

1089 (5th Cir. 1995).    A plaintiff, however, is not required to

bear the initial burden under summary judgment.      FED. R. CIV.

P. 56(c).   Instead, the district court should assume that the

plaintiff has established a prima facie case of discrimination.

See Boyd v. State Farm Ins. Co., 158 F.3d 326, 329 (5th Cir.

1998).   Although the district court erred in holding that

Nwakanma failed to establish a prima facie case of discrimination

on various grounds, the record shows that the error does not

require reversal and remand.    “In the context of summary

judgment, a substantial conflict in evidence must exist to create

a jury question on the issue of discrimination.”      Id. at 328.

Such genuine issues of material fact do not exist.

     The district court held that the defendants could not be

sued under Title VII in their individual capacities because they

were not “employers” within the meaning of that title.      The court

also held that sovereign immunity barred suit against the

defendants in their official capacity as employees of the Texas

Department of Criminal Justice (TDCJ).      This holding was not
                          No. 98-20466
                               -3-

erroneous.   See Will v. Michigan Dep’t of State Police, 491 U.S.

58, 71 (1989).

     The district court considered the merits of Nwakanma’s

claims of employment discrimination.   On Nwakanma’s five

applications for promotion which were not time-barred, the

district court held that Nwakanma had established a prima facie

case of discrimination with respect to his other three

applications, as should have been assumed.    The defendants put

forth evidence showing that the individuals hired were equally or

more qualified than Nwakanma for the positions, which was a

nondiscriminatory reason for the rejection.    Nwakanma failed to

produce evidence creating a genuine issue of material fact.    The

district court did not err in dismissing these claims.

     The district court held that the other two applications did

not establish a prima facie case of discrimination and that

Nwakanma had also failed to establish a prima facie case on the

grounds of retaliation, harassment, and hostile work environment.

Although this analysis is improper under summary-judgment

standards, the rationales for these decisions also permit

dismissal under summary judgment if it is assumed that a prima

facie case had been proved.   Nwakanma submitted no evidence to

counter this summary-judgment evidence by the TDCJ employees and

create a genuine issue of material fact.   His conclusional

allegations that this evidence is incorrect and that all problems

stemmed from discrimination and retaliation are insufficient to

withstand summary judgment.   See Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994)(en banc)(the nonmovant cannot
                            No. 98-20466
                                 -4-

satisfy his summary-judgment burden with conclusional

allegations, unsubstantiated assertions, or only a scintilla of

evidence).    The district court did not err in dismissing these

claims on summary judgment.

       The court also held that Nwakanma’s breach-of-contract claim

could not stand because he had failed to prove the existence of a

contract.    A person asserting a breach of contract in Texas must

first establish that a contract exists.     Incorporated Carriers,

Ltd. v. Crocker, 639 S.W.2d 338, 340 (Tex. App. 1982).

Nwakanma’s only argument in support of his claim is that all

employment relationships are contractual under the Civil Rights

Act.    He does not, however, provide any evidence to support this

claim.    The district court did not err in dismissal.

       Nwakanma’s argument that the district court erred in

refusing to grant default judgment is frivolous.    “A party is not

entitled to a default judgment as a matter of right, even where

the defendant is technically in default.”     Ganther v. Ingle, 75

F.3d 207, 212 (5th Cir. 1996).    The defendants filed a motion to

dismiss before Nwakanma filed his motion for a judgment by

default.    The defendants defended the suit, and the district

court properly denied the motion for a default judgment.      See

McCorstin v. United States Dep’t of Labor, 630 F.2d 242, 244 (5th

Cir. 1980)(default judgment inappropriate when defendant answered

complaint before plaintiff requested default judgment).

       AFFIRMED.
