     Case: 17-51040      Document: 00515224075         Page: 1    Date Filed: 12/05/2019




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

                                      No. 17-51040                        FILED
                                                                   December 5, 2019
                                                                     Lyle W. Cayce
EDWARD LEE MARTINEZ,                                                      Clerk

               Plaintiff - Appellant

v.

GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS; PAROLE
COMMISSIONER RISSIE OWENS, Presiding Officer, State of Texas Board
of Pardons and Paroles; DAVID GUTIERREZ, Board-Parole Panel Member;
JAMES LAFAVERS, Board-Parole Panel Member; FEDERICO RANGEL,
Board-Parole Panel Member; FRED SOLIS, Board-Parole Panel Member;
CYNTHIA TAUSS, Board-Parole Panel Member; MICHELLE SKYRME,
Board-Parole Panel Member; CHARLES SHIPMAN, Parole Commissioners,
BPP; MARSHA MOBERLEY, Parole Commissioners, BPP; UNKNOWN
GABRIEL, Parole Officer, Texas Department of Criminal Justice-Parole
Division,

               Defendants - Appellees




                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-651


Before WIENER, HIGGINSON, and HO, Circuit Judges.
PER CURIAM:*


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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      Plaintiff-Appellant Edward Lee Martinez, Texas prisoner #1253933
proceeding pro se, appeals the grant of summary judgment for defendants,
dismissing with prejudice his claims arising from the denial of his parole. For
the reasons below, we AFFIRM the judgment of the district court.
                       I.    FACTS AND PROCEEDINGS
      Martinez was convicted in 2006 of burglary of a habitation with intent
to commit theft and sentenced to 99 years in prison. His accomplices, James
Fox and Kenneth Pace, pleaded guilty and testified against Martinez at trial.
Fox was sentenced to 20 years in prison. Although there is no evidence of the
length of Pace’s sentence in the record, Martinez stated in his motion for
reconsideration below that Pace was sentenced to 25 years. Martinez’s
complaint alleges that Fox was paroled in 2015 and Pace by 2014, although on
appeal Martinez does not point to any supporting evidence in the record.
Martinez was denied parole in 2009, with his next review deferred until 2014.
Defendants Marsha Moberley and Charles Shipman denied Martinez parole in
2014 and deferred the next review to 2018. As a result of an error in voting,
Martinez’s case received special review in 2016, and he was again denied
parole.
      Martinez filed a lawsuit under 42 U.S.C. § 1983 against Defendants-
Appellees Governor Greg Abbott; Parole Board Chairperson Rissie Owens;
Parole Board members David Gutierrez, James Lafavers, Federico Rangel,
Fred Solis, Cynthia Tauss, and Michelle Skyrme; Parole Commissioners
Charles Shipman and Marsha Moberley; and Parole Officer Linda Gabriel.
Martinez alleged that defendants violated his due process and equal protection
rights by denying him parole, implementing arbitrary parole review
procedures, failing to provide him a fair and meaningful parole hearing, and
failing to notify him of the 2014 parole denial. Martinez also alleged that he
was denied parole because he is Hispanic (and he maintained his innocence),
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in contrast to the similarly situated Fox and Pace, who are white and pleaded
guilty.
      Defendants filed a motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) which the magistrate judge converted into a
motion for summary judgment. Martinez requested and was given multiple
extensions of time in which to file evidence supporting his claims, but he
ultimately filed nothing beyond the documents that he had attached to his
complaint.
      The district court adopted the magistrate judge’s report and
recommendation, dismissing Martinez’s claims for damages against all
defendants in their official capacities on Eleventh Amendment immunity
grounds. The court also dismissed Martinez’s claims for damages against
defendants LaFavers, Moberley, and Shipman in their personal capacities on
absolute immunity grounds, and granted summary judgment for all
defendants on the substance of each of Martinez’s remaining claims. 1
      Martinez filed a motion for reconsideration pursuant to Federal Rule of
Civil Procedure 59(e) which the district court denied on October 2, 2017.
Martinez then filed two documents both dated November 1, 2017 and
postmarked November 2, 2017. One was a notice of appeal and the other was
a request that the district court clerk dismiss that notice of appeal. Reversing
course once again, Martinez asked the clerk to reinstate his appeal on
November 14, 2017.
      Martinez explicitly raises five viable, distinct issues in his appeal: (1)
whether the district court abused its discretion by ruling on the summary
judgment motion before Martinez had conducted sufficient discovery to



      1 Although defendant Abbott had not been served, the district court dismissed
Martinez’s claims against him as frivolous pursuant to 28 U.S.C. § 1915(e).
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support his allegations, (2) whether the district court reversibly erred by
granting summary judgment for the defendants on Martinez’s due process
claims, (3) whether the district court reversibly erred by granting summary
judgment for the defendants on Martinez’s equal protection claims, (4) whether
the district court reversibly erred when it held that three of the defendants had
absolute immunity, and (5) whether the district court reversibly erred when it
denied Martinez’s Rule 59(e) motion. This court requested supplemental
briefing on the issue of its jurisdiction.
       Three additional issues that Martinez attempts to raise on appeal are
not viable. First, Martinez claims that the district court abused its discretion
in dismissing his verified complaint. Second, he raises the issue “whether [he]
is entitled to recovery under 42 U.S.C. § 1983.” Both are merely restatements
of issues (2), (3), and (4) above, for all non-abandoned claims were dismissed
on those grounds. 2 Third, Martinez contends that defendants waived their
defenses in the district court by not answering timely. Martinez did not raise
the waiver issue below and does not brief it completely here, so that issue is
waived and abandoned. See Celanese Corp. v. Martin K. Eby Const. Co., 620
F.3d 529, 531 (5th Cir. 2010) (“The general rule of this court is that arguments
not raised before the district court are waived and will not be considered on
appeal.”); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we
liberally construe the briefs of pro se appellants, we also require that
arguments must be briefed to be preserved.”) (quoting Price v. Digital Equip.
Corp., 846 F.2d 1026, 1028 (5th Cir. 1988)); FED. R. APP. P. 28(a)(8)(A).




       2  Martinez abandoned any claims for money damages against defendants in their
official capacities by renouncing such claims in his opposition to defendants’ motion to
dismiss. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.5 (5th Cir. 2006) (“[F]ailure
to pursue [a] claim beyond [the] complaint constitute[s] abandonment.”).
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                                     II.    ANALYSIS
A.     Jurisdiction
       Martinez’s request to the district court clerk to dismiss his initial notice
of appeal could be construed as a motion for voluntary dismissal pursuant to
Federal Rule of Appellate Procedure 42(a). 3 Even if it were, however, the
district court never entered an order dismissing the appeal as required by Rule
42(a), so Martinez’s initial notice of appeal is still operative. 4
       That initial notice was dated November 1, 2017, the last day on which
Martinez could have timely filed a notice of appeal following the denial of his
Rule 59(e) motion, but was not postmarked until November 2, 2017. See
Richardson v. Oldham, 12 F.3d 1373, 1377 (5th Cir. 1994). An inmate files a
timely notice of appeal if he deposits the notice in the prison mail system “on
or before the last day for filing.” FED. R. APP. P. 4(c)(1). The inmate can prove
the date on which he filed the notice of appeal by submitting “a declaration in
compliance with 28 U.S.C. § 1746,” “a notarized statement,” or “evidence (such
as a postmark or date stamp) showing that the notice was so deposited and
that postage was prepaid.” FED. R. APP. P. 4(c)(1)(A). Martinez submitted
neither a compliant declaration nor a notarized statement. The other evidence
of when Martinez deposited his notice of appeal in the prison mail system is
ambiguous. The November second postmark fails to prove, but is not
inconsistent with, timely deposit. That Martinez mailed a separate letter
asking to dismiss his appeal also dated November first suggests that Martinez




       3 “Before an appeal has been docketed by the circuit clerk, the district court may
dismiss the appeal on the filing of a stipulation signed by all parties or on the appellant’s
motion with notice to all parties.” FED. R. APP. P. 42(a). Martinez’s appeal was docketed in
this court on November 22, 2017 after Martinez requested that the district court clerk
reinstate his appeal.
       4 Contrast with Williams v. United States, 553 F.2d 420, 421 (5th Cir. 1977), in which

the district court granted the appellant’s motion for voluntary dismissal.
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had already deposited the notice of appeal earlier that day. We could permit
Martinez to file a notarized statement or a § 1746 declaration at this later time.
See FED. R. APP. P. 4(c)(1)(B). We decline to do so here, however, because—
even when viewing the facts in the light most advantageous to Martinez—his
appeal lacks merit.
B.    Discovery
      The district court did not err in granting summary judgment for
defendants over Martinez’s requests to conduct additional discovery because
Martinez did not make the showing required by Federal Rule of Civil
Procedure 56(f). “Rule 56 does not require that any discovery take place before
summary judgment can be granted; if a party cannot adequately defend such
a motion, Rule 56(f) is his remedy.” Washington v. Allstate Ins. Co., 901 F.2d
1281, 1285 (5th Cir. 1990). To obtain relief under Rule 56(f), a non-movant
“must show: (1) why he needs additional discovery and (2) how that discovery
will create a genuine issue of material fact.” Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 162 (5th Cir. 2006). “We review the district court’s
decision to preclude further discovery prior to granting summary judgment for
abuse of discretion.” Krim v. BancTexas Grp., Inc., 989 F.2d 1435, 1441 (5th
Cir. 1993).
      Even construing Martinez’s many motions for extensions of time and
objections to the magistrate’s report and recommendation as Rule 56(f)
motions, Martinez failed to identify the discovery that he sought sufficiently.
Martinez made only two requests for discovery with any specificity at all. The
first was that he needed more time because he was “waiting on papers and
documents to be sent from sources on the outside, that he [would] attach to his
reply as evidence to demonstrate that summary judgment is inappropriate.”
That request failed to identify what material fact the discovery would affect.
“A party ‘cannot evade summary judgment simply by arguing that additional
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                                  No. 17-51040
discovery is needed,’ and may not ‘simply rely on vague assertions that
additional discovery will produce needed, but unspecified, facts.’” Id., 465 F.3d
at 162 (quoting Brown v. Miss. Valley State Univ., 311 F.3d 328, 333, n.5 (5th
Cir. 2002) and Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan
Gas Bumi Negara, 364 F.3d 274, 305 (5th Cir. 2004)).
      The second request claimed that Martinez had “no way of knowing” who
defendant Owens, the Presiding Chair of the Texas Board of Pardons and
Paroles, had designated to sit on the parole panel and thus could not name the
proper defendant or defendants. Although more specific, that request was
immaterial because any panel member newly identified in discovery would
have been in the same position as the panel members already named in the
suit and against whom Martinez’s claims were dismissed. The district court
did not abuse its discretion in granting summary judgment over Martinez’s
objections regarding discovery.
C.    Due Process and Equal Protection Claims
      The district court did not err in granting summary judgment for
defendants on Martinez’s equal protection and due process claims. “This court
reviews a summary judgment de novo, using the same standard as that
employed by the district court.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th
Cir. 2012). A district court properly grants a motion for summary judgment “if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
“If the moving party meets the initial burden of showing there is no genuine
issue of material fact, the burden shifts to the nonmoving party to produce
evidence or designate specific facts showing the existence of a genuine issue
for trial.” Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738
F.3d 703, 706 (5th Cir. 2013) (internal quotation marks and citation omitted).
“The evidence, including factual allegations set forth in verified complaints, is
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                                      No. 17-51040
viewed in the light most favorable to the nonmoving party, but conclusional
allegations and unsubstantiated assertions may not be relied on as evidence.”
Butts v. Martin, 877 F.3d 571, 581–82 (5th Cir. 2017) (internal quotation marks
and citation omitted).
       Defendants are entitled to judgment on Martinez’s due process claims as
a matter of law because Texas prisoners lack a liberty interest in obtaining
parole and may not assert any due process claims regarding state procedures
for parole review. See Toney v. Owens, 779 F.3d 330, 341–42 (5th Cir. 2015).
       Defendants are also entitled to summary judgment on Martinez’s equal
protection claims because he submitted no evidence showing that similarly
situated persons were treated differently than was he. To establish an equal
protection violation, a plaintiff “must prove purposeful discrimination
resulting in a discriminatory effect among persons similarly situated,”
Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992), or that he “has been
intentionally treated differently from others similarly situated and that there
is no rational basis for the difference in treatment,” Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000). Fox and Pace are the only persons that
Martinez points to as similarly situated. Martinez, however, (1) does not
dispute that Fox and Pace pleaded guilty to their crimes but that he did not;
(2) does not dispute that Fox was sentenced to 20 years but that he was
sentenced to 99; and (3) submitted no evidence contradicting other evidence
which shows that, unlike Martinez, Pace had no arrests prior to his conviction. 5
       Whether individuals are similarly situated is an issue of material fact.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Tex. by &



       5Martinez alleged in his verified complaint that he has seen “NCIC” records showing
that Pace was arrested in other states before his conviction. Statements about the content of
documents, however, are hearsay and inadmissible as summary judgment evidence. See
United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 508 (5th Cir. 2008).
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Through Bd. of Regents of Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 819 (5th
Cir. 1998). An issue of material fact is genuine, however, only “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.
If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Parrish v. Premier Directional Drilling, L.P., 917
F.3d 369, 378 (5th Cir. 2019) (internal quotation marks and citation omitted).
Based on the undisputed evidence before the district court, no reasonable jury
could find that Fox and Pace were similarly situated to Martinez. Defendants
are therefore entitled to summary judgment on Martinez’s equal protection
claims. See Smith v. Kimbhal, 421 F. App’x 377, 379 (5th Cir. 2011) (affirming
summary dismissal of a prisoner’s equal protection claim when the prisoner
failed to prove, among other information, the sentences of prisoners he alleged
were similarly situated but had been granted parole); Johnson v. Rodriguez,
110 F.3d 299, 313–15, n.20 (5th Cir. 1997) (noting that the plaintiff had not
presented evidence that prisoners with comparable or worse criminal records
received parole).
D.    Absolute Immunity
      The district court did not err in holding that defendants Moberley,
Shipman, and LaFavers were absolutely immune from Martinez’s suit. This
court reviews the district court’s grant of summary judgment de novo. McFaul,
684 F.3d at 571. “Parole officers are entitled to absolute immunity from
liability for their conduct in parole decisions and in the exercise of their
decision-making powers.” Littles v. Bd. of Pardons & Paroles Div., 68 F.3d 122,
123 (5th Cir. 1995). This is precisely the conduct on which Martinez based his
suit. Although Martinez correctly notes that the Supreme Court has not yet
decided the issue, see Bd. of Pardons v. Allen, 482 U.S. 369, 371 n.1 (1987), this
court is bound by its own precedent “[a]bsent a clear contrary statement from


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                                  No. 17-51040
the Supreme Court or en banc reconsideration,” Exelon Wind 1, L.L.C. v.
Nelson, 766 F.3d 380, 394 (5th Cir. 2014).
E.     Rule 59(e) Motion
       The district court did not err in denying Martinez’s Rule 59(e) motion. “A
Rule 59(e) motion calls into question the correctness of a judgment” and allows
“a party to correct manifest errors of law or fact or to present newly discovered
evidence.” Templet v. HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004)
(internal quotation marks and citation omitted). This court reviews a denial of
a rule 59(e) motion for abuse of discretion unless the motion raises a question
of law, in which case this court reviews the district court ruling de novo. Lamb
v. Ashford Place Apartments L.L.C., 914 F.3d 940, 943 (5th Cir. 2019).
Martinez’s motion introduced no new evidence relevant to the grounds on
which the district court dismissed his case and he advanced no new legal
arguments.
                               III.   CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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