Brown v. Newman, et al

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 1, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60038
Summary Calendar
TROY D. BROWN, SR.,
Plaintiff-Appellant,
versus
MISSISSIPPI VALLEY STATE UNIVERSITY; ET AL,
Defendants,
LESTER C. NEWMAN, Individually and in His
Official Capacity of President of Mississippi
Valley State University; KEVIN A. ROLLE,
Individually and in His Official Capacity as
Vice President of Student Affairs of Mississippi
Valley State University,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:99-CV-168-BB
--------------------
Before GARZA, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Troy D. Brown, Sr. is appealing the district court’s order
denying his challenge made during the jury voir dire pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986). Following a jury trial,
the district court dismissed Brown’s complaint seeking relief

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No. 04-60038
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under the civil rights statutes and state law prohibiting
malicious interference with employment relations.
Brown argues that the district court erred in upholding the
appellees’ reasons for challenging two African-American members
of the venire without making a determination that the reasons
were pretextual and that the strikes were actually
discriminatory. The appellees respond that in failing to dispute
the non-discriminatory reasons for the challenges, Brown waived
his initial Batson challenge and, thus, the ruling is not subject
to appellate review.
The Equal Protection Clause forbids a prosecutor to
challenge potential jurors solely on account of their race.
Batson v. Kentucky, 476 U.S. 79, 89 (1986). In Batson, the Court
outlined a three-step process for evaluating claims that a
prosecutor used peremptory challenges in a manner violating the
Equal Protection Clause: (1) a defendant must make a prima facie
showing that the prosecutor has exercised his peremptory
challenges on the basis of race; (2) the burden then shifts to
the prosecutor to articulate a race-neutral reason for striking
the juror in question; and (3) the trial court must determine
whether the defendant has carried his burden of proving
purposeful discrimination. Hernandez v. New York, 500 U.S. 352,
358-59 (1991) (citing Batson, 476 U.S. at 96-98). The principles
announced in Batson have been applied to challenges to jurors in

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private civil litigation. Edmonson v. Leesville Concrete Co.,
943 F.2d 551, 552 (5th Cir. 1991).
A party opposing a challenge to a member of the venire under
Batson must prove purposeful discrimination in response to the
striking party’s statement of racially neutral reasons for the
strike. He cannot rely on his initial objection. See United
States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (citing
United States v. Rudas, 905 F.2d 38, 41 (2nd Cir. 1990)).
In failing to object to the district court’s determination
that the defendants presented racially neutral reasons for their
challenges to the African-American members of the venire, Brown
waived his Batson claim. Therefore, the denial of the Batson
challenge is AFFIRMED.

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