     Case: 17-10121      Document: 00514172760         Page: 1    Date Filed: 09/27/2017




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

                                                                                 FILED
                                                                           September 27, 2017
                                      No. 17-10121
                                                                              Lyle W. Cayce
                                                                                   Clerk
THOMAS THOMPSON, doing business as Thompson Wrecker Service,

               Plaintiff - Appellant

v.

TERRY MORGAN, as Sheriff of Garza County, Texas; GARZA COUNTY,
TEXAS,

               Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No: 5:16-CV-112


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Thomas Thompson sued Garza County, Texas, and Sheriff Terry Morgan
in his official capacity under 42 U.S.C. § 1983 for violating Thompson’s equal
protection and due process rights. The defendants moved to dismiss under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, which the
district court granted. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 17-10121       Document: 00514172760         Page: 2    Date Filed: 09/27/2017



                                      No. 17-10121
                      FACTS AND PROCEDURAL HISTORY
        Since the early 2000s, Thompson operated a wrecker service that was a
part of the county tow rotation for Garza County, Texas. He responded to
towing and service calls for many years until the Sheriff of Garza County,
Terry Morgan, removed Thompson from the tow-rotation list. Thereafter,
Lubbock Wrecker Service received all of the county tow business. On June 15,
2016, Thompson filed a complaint under Section 1983, alleging that the
defendants violated his due process and equal protection rights under the
Fourteenth Amendment. The defendants filed a motion to dismiss on October
20th. Thompson responded and filed an amended complaint on November
10th.
        The defendants then filed an unopposed motion for leave to file a reply
brief to address why the amended complaint did not moot their initial motion
to dismiss. In the brief, the defendants argued that the motion to dismiss
should be granted as the amended complaint still failed to adequately state a
claim. On December 9th, the district court issued an order that (1) granted the
defendants’ motion to file a reply brief; (2) dismissed with prejudice
Thompson’s official capacity claim against Sheriff Morgan; (3) granted the
defendants’ motion to dismiss under Rule 12(b)(6) without prejudice; and (4)
gave Thompson 14 days to further amend his pleading. Thompson did not
replead, and the district court issued its final judgment dismissing the case on
December 30th. Thompson timely appealed. 1




        1In his appeal, Thompson challenges only the dismissal of his equal protection claim.
Any issue not briefed on appeal is waived. United States v. Thibodeaux, 211 F.3d 910, 912
(5th Cir. 2000). Thus, Thompson has waived any argument concerning the district court’s
dismissal of his due process claim.
                                             2
    Case: 17-10121    Document: 00514172760      Page: 3     Date Filed: 09/27/2017



                                  No. 17-10121
                                 DISCUSSION
      We review de novo “a district court’s order on a 12(b)(6) motion to dismiss
for failure to state a claim.” Hunter v. Berkshire Hathaway, Inc., 829 F.3d 357,
361 (5th Cir. 2016). In reviewing such a motion, we accept the facts alleged as
true and determine whether the complaint contains “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). What is needed is “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
at 556). “[C]onclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” Fernandez-Montes
v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993).
      To state a “class of one” claim under the Equal Protection Clause, the
plaintiff must allege that: (1) the defendant intentionally treated plaintiff
differently from others similarly situated and (2) the defendant lacked a
rational basis for the difference in treatment. Lindquist v. City of Pasadena,
669 F.3d 225, 233 (5th Cir. 2012). The complaint must allege “‘the existence of
purposeful discrimination’ motivating the state action” which caused the
alleged injury.   Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997)
(quoting McCleskey v. Kemp, 481 U.S. 279, 292–93 (1987)).
      Thompson’s live complaint generally alleges that Lubbock Wrecker
Service received more favorable treatment, but he does not make any specific
factual allegations showing that Lubbock Wrecker Service is similarly situated
in all material respects. Furthermore, Thompson has not made sufficient
factual allegations that there was no rational basis for the difference in
treatment. What Thompson does provide are conclusory allegations such as
that “there was no rational justification for the distinguishing treatment.” He
did not make a plausible claim. AFFIRMED.
                                        3
