IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-60328

Summary Calendar

 

HARRY VINSON,

Plaintiff-Appellant,

versus

ELIZABETH VINSON; ET AL.,

Defendants,

ELIZABETH VINSON; CITY OF OLIVE BRANCH; SAMUEL P. RIKARD; GEORGE

COLLINS; AUBREY COLEMAN; GEORGE HARRISON; RICHARD E. DLUGACH;

STEVE DAWSON; OLIVE BRANCH POLICE DEPARTMENT; JIM HARRIS; CLEATUS

OLIVER; SCOTT GENTRY; LES SHUMAKE; BILLY W. BALDWIN; WALLACE

ANDERSON; MISSISSIPPI MUNICIPAL LIABILITY PLAN; JOHN DOES;

JENNIFER CARSON, Municipal Court Clerk,

Defendants-Appellees.

_________________________________________________________________

Consolidated with

_________________

No. 00-60398

Summary Calendar

_________________

HARRY VINSON,

 Plaintiff-Appellant,

versus

ELIZABETH VINSON; ET AL., 

 Defendants,

CITY OF OLIVE BRANCH; SAMUEL P. RIKARD; GEORGE COLLINS;

AUBREY COLEMAN; GEORGE HARRISON; RICHARD E. DLUGACH; STEVE

DAWSON; OLIVE BRANCH POLICE DEPARTMENT; JIM HARRIS; CLEATUS

OLIVER; SCOTT GENTRY; LES SHUMAKE; BILLY W. BALDWIN; WALLACE

ANDERSON; JUDY HERRINGTON; MISSISSIPPI MUNICIPAL LIABILITY

PLAN; JENNIFER CARSON, Municipal Court Clerk,

 Defendants-Appellees.
No. 00-60328 c/w No. 00-60398

-2-

* 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that this opinion should not be published and is not precedent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.

--------------------

Appeals from the United States District Court

for the Northern District of Mississippi

USDC No. 3:99-CV-54-B-A

--------------------

March 20, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellant Harry Vinson challenges the district court’s

dismissal of his 42 U.S.C. § 1983 complaint for failure to state

a claim. The appellant argues that the district court erred

because his complaint did state a claim for which relief could be

granted.

With respect to the individual defendant, Elizabeth Vinson,

the appellant’s complaint does not contain any specific facts

that would support his allegation that she acted in concert with

the remaining defendants to deny his constitutional rights. 

Accordingly, the appellant’s 42 U.S.C. § 1983 claim against

Elizabeth Vinson was properly dismissed for failure to state a

claim. See Tuchman v. DSC Communications Corp., 14 F.3d 1061,

1067 (5th Cir. 1994).

In his complaint, the appellant sued each of the remaining

defendants in their official capacities. Officials acting in

their official capacities are not “persons” within the meaning of

42 U.S.C. § 1983. Will v. Michigan Dep’t of State Police, 491

U.S. 58, 71 (1989). Therefore, the appellant’s 42 U.S.C. § 1983
No. 00-60328 c/w No. 00-60398

-3-

claims against these remaining defendants were properly dismissed

for failure to state a claim. See Tuchman, 14 F.3d at 1067.

The appellant also challenges the district court’s sua

sponte imposition of sanctions under Rule 11(c)(1)(B) of the

Federal Rules of Civil Procedure. This court reviews the

imposition of sanctions for an abuse of discretion. See Riley v.

City of Jackson, 99 F.3d 757, 759 (5th Cir. 1996). When

sanctions stem from a sua sponte Rule 11(c)(1)(B) decision, the

district court is required to afford the party notice describing

the offending conduct and allow him an opportunity to show cause

why sanctions should not be imposed. Goldin v. Bartholow, 166

F.3d 710, 722 (5th Cir. 1999).

In this instance, in ruling on the appellees’ motions to

dismiss, the district court found that the appellant’s complaint

was frivolous and intended to harass the litigants. In its order

dismissing the appellant’s complaint, the district court ordered

that Rule 11 sanctions be imposed against the appellant. The

appellant was allowed an opportunity to respond to defense

counsel’s submission of fee itemizations but was never given

advance notice of his perceived Rule 11 violations and an

opportunity to respond thereto. The imposition of Rule

11(c)(1)(B) sanctions without notice and a hearing constitutes an

abuse of discretion by the district court. See Goldin, 166 F.3d

at 722. We vacate the district court’s sanction order and remand

this case for further proceedings consistent with this opinion.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.