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

                                                 FILED
                                                                            May 12, 2009

                                       No. 08-40750                    Charles R. Fulbruge III
                                                                               Clerk

MICHAEL S UNRUH

                                                   Plaintiff-Appellee
v.

KEVIN MOORE; MICHAEL SIZEMORE; ETHAN WESTFALL; G
GRAYSON

                                                   Defendants-Appellants




               Appeal from the United States District Court for the
                            Eastern District of Texas
                             USDC No. 6:06-CV-453


Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendants appeal the denial of their summary judgment motion in this
42 U.S.C. § 1983 suit filed by Michael S. Unruh (“Unruh”).                         Unruh is
incarcerated in the Coffield Unit of the Texas Prison System. He alleges that
Defendants discriminated against him in denying him a job in the Prison
Industry Enhancement (“P.I.E.”) Program. The district court held that there




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40750

was a genuine issue of material fact as to the reasons for the denial of Unruh’s
application. For the following reasons, we REVERSE.
         Unruh was convicted of sexual assault; specifically, rape in possession of
a knife. While serving his sentence, Unruh applied to the P.I.E. Program, which
allows prisoners to do paid work for private employers in a minimum-security
section of the prison.1 Unruh submitted an application for a job through the
program. The application was returned with a notation from the case manager
that it was denied due to the nature of the crime for which Unruh was
incarcerated. Despite this, Unruh was interviewed by the warden for the job two
weeks later. He was denied a second interview for the job along with one other
inmate, again due to the nature of his crime. Unruh later learned that two other
sex offenders were in the P.I.E. program. He filed the instant suit, alleging that
he was denied equal protection in being rejected for the job because he was a sex
offender.
         We review a district court’s denial of summary judgment de novo, applying
the same standard as the district court. Stotter v. University of Texas at San
Antonio, 508 F.3d 812, 820 (5th Cir. 2007). We construe the facts in the light
most favorable to the non-moving party and draw all reasonable inferences in
its favor. Id. A party is entitled to summary judgment only if the evidence in
the record shows that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law. F ED.R.C IV.P.
56(c).
         Defendants assert that qualified immunity bars Unruh’s claim. In order
to overcome the defense of qualified immunity against a government official, a
plaintiff must show (1) that his constitutional rights were violated (2) under law
that was clearly established in light of the specific context of the case. See



         1
             The paid program at the Coffield Unit is with the Atrium Glass Company.

                                               2
                                     No. 08-40750

Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v.
Callahan, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).2
      Unruh asserts a “class-of-one” Equal Protection claim, arguing that the
Defendants violated his rights by denying him a job in the P.I.E. program
because of his sex offender status even though other sex offenders were offered
entry into the program.         For a class-of-one claim to withstand summary
judgment, Unruh must show genuine questions of material fact as to whether
1) he was intentionally treated differently from others similarly situated and 2)
if different standards for entry into the program were applied, that there was no
rational basis for the difference in treatment. See Whiting v. University of
Southern Mississippi, 451 F.3d 339, 348 (5th Cir.2006); see also Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).              Crucially, rational basis
scrutiny applies because Unruh does not claim to be a member of a protected
class. Whiting, 451 F.3d at 348 n.3.
      We do not need to inquire into the intent of the prison officials, nor do we
need to address Defendants’ argument that a class-of-one Equal Protection claim
is not cognizable in the context of a prison official’s discretionary decision, as
Unruh’s claim does not survive rationality review. Under the rational basis
standard, any rational ground for the conduct in question will suffice to defeat
the class-of-one claim. See Stotter, 508 F.3d at 824. In this case, the prison
officials clearly had rational grounds for denying Unruh’s application. The P.I.E.
program places the inmates in a minimum security facility. Unruh has a history
of disciplinary problems in prison— including an attempt to escape from a police
officer as well as assaults on fellow inmates, including with a weapon—that
create concrete security concerns for the prison officials. The fact that these


      2
        Pearson modified Saucier to the extent that the sequence of the two-step inquiry is
now discretionary. Our analysis in this case is resolved by step one of the test, whether a
constitutional violation has occurred.

                                            3
                                  No. 08-40750

reasons were not communicated to Unruh when his application was rejected is
irrelevant. To pass muster under rationality review, the plaintiff must rule out
all possible reasonable justifications for disparate treatment, not merely the
justification provided by the government official.       See Lindquist v. City of
Pasadena, Tex., 525 F.3d 383, 387 (5th Cir. 2008)(“[T]o ultimately prevail on the
claim, the [plaintiffs] must carry the heavy burden of ‘negativ[ing] any
reasonably conceivable state of facts that could provide a rational basis’ for their
differential treatment.”)(quoting Whiting, 451 F.3d at 349). The district court
thus erred in holding that there is a genuine issue of fact as to why Unruh’s
application was denied; under the correct legal standard, the “actual” reason
provided by the official is immaterial.
      Because Unruh’s class-of-one claim fails under rationality review, the
district court’s denial of Defendants’ summary judgment motion was improper.
We REVERSE and render judgment for the Defendants.




                                          4
