     Case: 11-10643     Document: 00511715217         Page: 1     Date Filed: 01/05/2012




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

                                                                            FILED
                                                                          January 5, 2012

                                     No. 11-10643                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



PHIL GUILES, doing business as Mom’s Wide-A-Wake Bail Bonds,

                                                  Plaintiff-Appellant
v.

TARRANT COUNTY BAIL BOND BOARD; DEE ANDERSON, Sheriff,
Tarrant County, Texas; JOE SHANNON, Tarrant County District Attorney,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-738


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Phil Guiles, a bail bondsman, brought suit against the Tarrant County
Bail Bond Board, the sheriff, and the district attorney. The district court
converted the defendants’ motion to dismiss into one for summary judgment and
granted the motion. Guiles appeals. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 11-10643

      Collectively, the defendants are responsible for the operation of bail bonds
within Tarrant County, Texas. Guiles is one of the many bondsmen whom the
defendants regulate. The Board, under a Settlement Schedule, sets the amount
a bondsman forfeits when a criminal defendant free on bond does not appear in
court. The amount ranges between 30 percent of the bond and its face value.
Once the exact amount has been determined, judgment is entered by the local
court. At times, the Board proposes a settlement for a lesser amount than that
established in the schedule. Settlements must be approved by the court. Once
judgment is entered, the bondsman has 31 days to pay. Failure to do so can lead
to a suspension of the person’s ability to write bonds. The court, however, has
the authority to grant continuances that delay the time for payment.
      Guiles filed a Section 1983 action in the United States District Court for
the Northern District of Texas. See 42 U.S.C. § 1983. He alleged that the sheriff
and district attorney in their official capacities violated his First Amendment
rights and also the Due Process and Equal Protection Clauses of the Fourteenth
Amendment by treating bondsmen who are not attorneys differently from those
who are attorneys. On November 12, 2010, the defendants filed a motion to
dismiss to which they attached a 136-page appendix. On March 25, 2011, the
district court entered an order that converted the motion to dismiss into one for
summary judgment and also granted the motion. Guiles appealed.
      Guiles’s briefing identified four issues, then grouped them into two parts.
One broad issue is about procedure, while the other concerns substance.
                                 DISCUSSION
      We first address Guiles’s claim that the district court erred by converting
the defendants’ motion to dismiss into a motion for summary judgment. A court
has this power. See Fed. R. Civ. P. 12(d). Guiles argues reversal is needed,
though, because he did not receive adequate notice of the conversion.



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      Notice in this context is satisfied if the nonmovant knows that the court
may convert the motion. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 195 (5th
Cir. 1988). The court need not expressly warn the nonmovant that it plans to
convert the motion. Id. A non-moving party receives adequate notice when it
is aware that the movant has placed matters outside the pleadings before the
district court for its review. See id. at 196. The defendants here submitted the
bail bond settlement schedule, the Board rules, court records from the case
which caused Guiles to be suspended, a record of the Board’s disciplinary
hearing for Guiles, and a record of his license renewal proceedings.
      Guiles was required to be aware of what was in the defendants’ properly
made filing. His actual notice is clear from the fact he mentioned the filing in
his motion for extension of time to file a reply. In the reply itself, he discussed
the defendants’ arguments. The documents on which the district court relied
were on file more than four months before summary judgment was granted.
      Certain portions of the defendants’ appendix could be considered by the
district court without converting the motion to dismiss into a motion for
summary judgment, while other parts potentially required converting the
motion. There is no need to categorize the various documents, because there was
no error in considering them. Guiles received adequate notice. The district
court did not err in converting the motion into one for summary judgment.
      We now turn to the second broad issue Guiles raises on appeal. He does
not challenge all of the district court’s rulings. We conclude he is arguing error
as to the resolution of his equal protection claims against all defendants, and
also of his procedural and substantive due process claims.
      In reviewing a summary judgment, we apply the same standard as did the
district court. Kujanek v. Hous. Poly Bag I, Ltd., 658 F.3d 483, 487 (5th Cir.
2011).   A grant of summary judgment may be affirmed “on any grounds
supported by the record – including grounds different than those relied upon by

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                                  No. 11-10643

the district court.” Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th
Cir. 2010). Summary judgment is appropriate “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).
      On the equal protection issue, Guiles argues that the defendants
discriminated against him as a “class of one,” and not as a member of a group.
See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).         He alleges
attorneys are allowed to settle for an amount that is lower than mandated by the
Board. Additionally, he claims that certain attorneys are allowed multiple
continuances, while he is permitted just one.
      The only evidence as to the process about which Guiles complains is that
bond settlements involve both the district attorney and the local court. Once a
bond has been forfeited, a bondsman may pay the amount dictated by the
Settlement Schedule, enter into a settlement with the district attorney for
another amount, or contest the dispute before the court. No matter what path
the bondsman takes, the court must enter final judgment. One effect of this
scheme is that the court has the power to reject settlement agreements or depart
from the Settlement Schedule. Whether to grant a continuance is also left to the
discretion of the court.
      An equal protection claim that does not involve a suspect classification
must show that the individuals involved, some of whom are allegedly treated
preferentially compared to others, are similarly situated. Mahone v. Addicks
Util. Dist. of Harris Cnty., 836 F.2d 921, 932 (5th Cir. 1988). The Equal
Protection Clause prohibits dissimilar treatment of similar people. Id. The
district court held that Guiles’s claims of discrimination by the district attorney
and sheriff are actually complaints about decisions by state judges who
determine whether to grant continuances and approve settlements. We agree



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                                 No. 11-10643

that his claim regarding continuances is actually a challenge to trial judge
rulings and does not implicate the defendants.
      We also agree that the district court was correct to dismiss the claim
regarding settlements. Even if the defendants are treating Guiles differently
than attorney bondsmen regarding settlements, there has been no showing that
the conduct was arbitrary or vindictive and therefore impermissible. See Russell
v. Collins, 998 F.2d 1287, 1294 (5th Cir. 1993). Further, Guiles has not proven
he is similarly situated to an attorney. The entirety of his argument is this:
“Attorneys and non attorney bail bondsmen are similarly situated with regard
to executing bonds in Tarrant County and the Texas Occupation Code §1704.001
et seq.” That conclusory statement is not enough. See Andrade v. Gonzales, 459
F.3d 538, 543-44 (5th Cir. 2006). Consequently, the district court was correct
that Guiles failed to make a claim of a constitutional violation by the named
individual defendants.
      Guiles also makes a more specific procedural due process claim against the
Bail Bond Board. After a judge held Guiles to be in default on one of the bonds,
the Board was notified. It promptly disqualified him from writing future bonds.
Guiles does not dispute that such disqualification is generally appropriate. His
argument is that because he appealed with a supersedeas bond from the court’s
finding of default, he should not have been disqualified by the Board. The
parties seem to be in agreement about the effect of the supersedeas on a
bondsman’s right to avoid disqualification.      The Board states that it was
unaware of the supersedeas when it first acted. Once Guiles pointed out the
supersedeas bond, the Board removed his disqualification. When the district
court denied the due process claim, it quoted Guiles’s brief in which he
acknowledged that the Board allowed him to write bonds once it was notified of
the supersedeas.



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                                 No. 11-10643

      We agree with the district court that there is nothing on which to make a
claim of denial of procedural due process. Perhaps a fact issue exists, which we
need not decide, about whether mistakes were committed by the Board, the clerk
of the court in which Guiles had been held in default, or by someone else. This
is not enough. Lemoine v. New Horizons Ranch and Ctr., Inc., 174 F.3d 629, 634-
35 (5th Cir. 1999). There is no allegation that the defendants intentionally
ignored the supersedeas. Any dispute of fact is immaterial and judgment was
properly granted on the claims arising out of the failure immediately to
recognize the existence of a supersedeas bond.
      Guiles makes the briefest of arguments on appeal about his First
Amendment claim. Some general principles are set out, but he never identifies
conduct by a defendant that would support his claim. We do not consider the
claim. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).
      His substantive due process claim is based on unequal treatment. By
alleging that a specific constitutional provision, the Equal Protection Clause,
prohibits the defendants’ conduct, he cannot also rely on “the broad notion of
substantive due process” to challenge the same conduct. Velez v. Levy, 401 F.3d
75, 94 (2d Cir. 2005).
      AFFIRMED.




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