                             REVISED MAY 2, 2008

           IN THE UNITED STATES COURT OF APPEALS
                                           United States Court of Appeals
                    FOR THE FIFTH CIRCUIT           Fifth Circuit

                                                                             FILED
                                                                            April 28, 2008

                                     No. 06-41518                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



BRENDA MATA,

                                                  Plaintiff-Appellant,
v.

CITY OF KINGSVILLE, TX; DAWSON B. WEATHERFORD, in His Official
and Individual Capacity; CHIEF RICARDO TORRES, In his Official and
Individual Capacity,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:05-CV-491


Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Brenda Mata is appealing the district court’s order
granting Defendants-Appellees’ motion for summary judgment. Finding no
error, we AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41518




                I. FACTUAL AND PROCEDURAL HISTORY
      Mata and Dawson Weatherford were married on May 16, 1994.
Weatherford was employed as a police officer by the City of Kingsville, Texas.
      On the afternoon of October 25, 2003, the couple got into an argument.
Mata called 911, but the Kingsville police dispatcher who answered the call only
heard the caller hang up. The dispatcher identified that the call was placed from
Officer Weatherford’s residence and alerted Corporal Charles Barrera of the
Kingsville Police Department. The dispatcher then telephoned the Weatherford
residence; Weatherford answered the phone and told the dispatcher that
everything was fine. The dispatcher thought that Weatherford sounded out of
breath, and she reported her conversation with Weatherford to Barrera. Barrera
then drove to the Weatherford residence.
      When Barrera approached the house, he could hear the couple arguing.
He knocked on the door, and Mata opened it. Barrera asked Weatherford to step
outside, where he questioned him about what had happened. Weatherford
admitted that the couple had been arguing and that he had pushed Mata,
causing her to fall down. According to Weatherford, when Mata got up she
struck him in the face, cutting his lip. Weatherford also said that Mata threw
a glass bowl at him, striking him in the arm. Barrera confirmed that, consistent
with his account, Weatherford had a cut lip and a bump on his forearm.
Weatherford also told Barrera that Mata had threatened him with a baseball
bat, but that he had managed to get it away from her. Weatherford admitted to
taking the phone from Mata and hanging it up when she called 911. He told
Barrera that he would voluntarily leave the residence and did not want to press
charges against his wife.



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      According to his offense report, Barrera then had a conversation with
Mata. Barrera wrote that Mata told him that Weatherford had pushed her
during their argument, causing her to fall and bump her head on a wall.
Barrera’s report stated that he was able to feel a lump on her head, and that
while Mata admitted to striking Weatherford in the face, she said she only threw
the glass bowl at him in self-defense. Barrera reported that Mata explained that
one of her children came into the room with a baseball bat to defend her, but
that she took the bat away from the child and that she never threatened to use
the bat against Weatherford. According to the report, Mata told Barrera that
she did not want to press charges and that she did not want an incident report
filed. Barrera filed a report nonetheless.
      Mata disputes Barrera’s rendition of the aforementioned events. On
appeal, Mata asserts that Barrera refused to talk with her when he was at the
couple’s home, even though in her deposition she admitted to having certain,
limited conversations with Barrera.
      The following day, October 26, Weatherford drove Mata to the police
station, where she spoke with another officer, Brad Lile, privately in an
interview room.     According to the report Lile produced regarding the
conversation, Mata told him that she did not think that Barrera’s report was
accurate, and she wanted her side of the story documented. She provided a
number of details regarding her fight with her husband, and according to Lile,
she admitted throwing the candy dish at Weatherford. According to Lile, Mata
told him that Weatherford had never assaulted her before the previous day’s
argument and that the couple rarely argued. In his report, Lile reported that
Mata did not want to press charges, but only wanted to have her account of the
incident accurately documented. She said that she intended to seek marriage
counseling through her church.



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      Mata’s deposition account of her interview with Lile varies from his report.
She denied telling Lile that she threw a candy dish at Weatherford as well as
that she told Lile that Weatherford had never assaulted her before. Mata agreed
that she never told Lile she wanted to press criminal charges against her
husband.
      Lile also spoke to Weatherford on October 26; Weatherford explained that
he only used force after his wife first attacked him. According to Lile’s report,
Lile asked the couple if they would be okay going home together, and they both
said they would.
      On November 12, 2003, Mata and Weatherford each signed a waiver of
prosecution, declining to press charges against each other based on the incident
on October 25, 2003.
      In her deposition, Mata explained that in the following months she had
several conversations with members of the police department about her marital
problems, although her recollection of those discussions and the dates they
occurred was somewhat vague.        She told an internal affairs investigator,
Sergeant Richard Cuellar, and Chief Ricardo Torres that her husband was still
being abusive towards her and her children and that he was hard to live with,
and she wanted them to do something about it. She suggested that perhaps
Weatherford could be ordered to take a vacation or perhaps receive instruction
in anger management. She even suggested that her husband be praised more
at work and perhaps named “Officer of the Month,” in hopes that such actions
would improve his morale. There is no evidence that Mata ever said she wanted
to press criminal charges against Weatherford or that she wanted him arrested.
      Weatherford filed for divorce on March 24, 2004, but did not move out of
the house until May 29, 2004. On May 20, 2004, Mata and Weatherford had a
violent struggle over Mata’s use of Weatherford’s cell phone. During the scuffle,
Weatherford allegedly cursed Mata, put his knee on her leg with all his weight,


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and bent her pinky finger. According to Mata, this resulted in swelling of her
pinky finger and bruises to her arm and thigh.
      In response to this incident, Mata left her home and went to her mother’s
house. There, she called Chief Torres and asked him to talk to Weatherford; the
chief said he would. Several hours later, Mata called Chief Torres again, and he
told her he was still talking to Weatherford.
      Following that incident, Mata alleges that she was unjustifiably stopped
on five or more occasions by police officers of the Kingsville Police Department
and that Weatherford stalked her in his patrol car. The couple’s divorce became
final in January of 2005. On September 30, 2005, Mata filed suit against the
City of Kingsville as well as Weatherford and Torres, in their official and
individual capacities (collectively “Defendants”) in the Southern District of
Texas.     She asserted, inter alia, claims of equal protection violation and
excessive force pursuant to 42 U.S.C. § 1983. Mata also asserted a number of
state law claims, including intentional infliction of emotional distress.
Defendants moved for summary judgment on all of Mata’s federal law claims as
well as the claim of intentional infliction of emotional distress against Torres.
The motion was granted by the district court on August 31, 2006. The district
court also dismissed all of Mata’s remaining state law claims. Mata filed her
notice of appeal; before this Court she is only challenging the grant of summary
judgment concerning her “class of one” equal protection claim.
                               II. DISCUSSION
A.       Standard of Review
      We review the district court’s grant of Defendants’ motion for summary
judgment de novo. See McKee v. City of Rockwall, 877 F.2d 409, 410 (5th Cir.
1989). Summary judgment is appropriate where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the

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moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
“All reasonable doubts and inferences must be resolved in the light most
favorable to the non-movant.” McKee, 877 F.2d at 410. (internal citation
omitted).
B.    Class of One Claim
      To prevail on a “class of one” equal protection claim premised on unequal
police protection, a single plaintiff must establish “that an illegitimate animus
or ill-will motivated her intentionally different treatment from others similarly
situated and that no rational basis existed for such treatment.” Shipp v.
McMahon, 234 F.3d 907, 916 (5th Cir. 2000), overruled in part on other grounds
by McClendon v. City of Columbia, 305 F.3d 314, 328-29 (5th Cir. 2002) (en
banc); see also Lindquist v. City of Pasadena, ___ F.3d ___, 2008 WL 1726173, at
*3 n.2 (5th Cir. Apr. 15, 2008). According to Mata, Defendants should not have
been granted summary judgment on her “class of one” equal protection claim
because she presented significant evidence that she was intentionally treated
differently than non-police officer wives who make domestic violence complaints.
Viewing the evidence in a light most favorable to Mata, we conclude that her
claim is without merit.
      Mata has failed to make out any of the necessary elements of her claim.
First, there is no evidence that she was intentionally treated differently from
others similarly situated. During her deposition, Mata offered the experiences
of her friend, Anna Lewis, who allegedly received more responsive treatment by
the police department when she made a 911 call concerning domestic violence.
However, a review of the record reveals that Mata’s knowledge of Lewis’s
experiences with the police department is based on hearsay, not personal
knowledge; therefore it is not admissible summary judgment evidence. See
Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (“Evidence on summary
judgment may be considered to the extent not based on hearsay . . . . ”); see also

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FED. R. CIV. P. 56(e). The rest of the summary judgment evidence neither
establishes that Mata was deprived of equal protection of the law nor that she
was intentionally treated differently than others similarly situated. If anything,
the evidence shows that police officers took steps to protect her, even over her
and Weatherford’s objections. For example, even though Weatherford told the
dispatcher that “everything was fine” after the interrupted 911 call on October
25, Barrera still went to the couple’s home. And although Mata told Barrera
that she did not want a report made of the incident, he made one anyway and
documented the lump on her head that she had received during the argument.
In light of this all, Mata has utterly failed to make out this element.
      Second, even assuming arguendo that the summary judgment record
supported an inference of disparate treatment, there is no evidence that
illegitimate animus or ill will motivated the disparity. While it is certainly
conceivable that members of the police department may have harbored ill will
towards Mata since Weatherford was employed as an officer of the department,
this Court has repeatedly acknowledged that “conclusory statements in an
affidavit do not provide facts that will counter summary judgment evidence, and
testimony based on conjecture alone is insufficient to raise an issue to defeat
summary judgment.” Roberts v. Cardinal Servs., 266 F.3d 368, 376 n.33 (5th
Cir. 2002) (internal citation omitted).
      And finally, since Mata has failed to prove disparate treatment, she cannot
make out the last element of her claim; namely, that there was no rational basis
for the difference in treatment. But, once again, even if she had raised a genuine
issue of material fact on disparate treatment, she could not prevail. The
evidence establishes that there would be a rational basis for her differentiated
treatment: she requested it. Instead of asking for the type of assistance a police
department is best equipped to provide—arresting someone and initiating
criminal charges—she continuously asked for informal measures that she

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thought would make her husband easier to live with. She made clear to Chief
Torres as well as to other members of the police department that she did not
want her husband arrested and that she did not want to press charges. Given
the considerable amount of discretion police officers are given to resolve domestic
disputes, see Shipp, 234 F.3d 914 n.5 (“Because domestic assault cases usually
involve parties in volatile intimate or familial relationships, we acknowledge
that special law enforcement tactics may be employed in these instances that
may be impracticable in other assault cases.”), we reject Mata’s assertion that
the officers here behaved irrationally by working with her, at her own request,
to resolve the situation with her husband by not arresting him or bringing
criminal charges.
      This case is distinguishable from Shipp, where Cherie Shipp made a much
stronger showing for her “class of one” claim. Shipp presented evidence which
concretely raised the possibility that her mother-in-law’s hostility towards her
influenced the level of protection she received from the police department, since
her mother-in-law was a deputy at the department who was “intimately
involved” in the situation that led to the filing of Shipp’s lawsuit. 234 F.3d at
916-17. Here, Mata’s evidence does not rise to such a level. Accordingly, she has
failed to demonstrate that Defendants “deliberately sought to deprive [her] of the
equal protection of the laws.” See id. at 916 (internal quotation marks and
citation omitted).
                              III. CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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