IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-31264

RAMIRO REYES; FLORENTINO MARTINEZ; ELIZABETH MARTINEZ

Plaintiffs-Appellees,

v.

CARL SAZAN, ETC.; ET AL

Defendants

CARL SAZAN, Trooper, Louisiana State Police; WILLIAM WHITTINGTON,

Colonel, Louisiana State Police; L M RYAN, Captain, Louisiana

State Police; KEVIN ARMSTRONG, Captain, Louisiana State Police

Defendants-Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

February 17, 1999

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This lawsuit allege s that various officials violated the

plaintiffs’ constitutional rights by conspiring to enforce

selectively the traffic laws and damaging a pickup truck in a

fruitless search for contraband . We conclude the district court

abu sed its discretion by not requiring a Rule 7 reply to the

defense of qualified immunity. We also conclude that the Eleventh

Amendment is not a bar to the state law claims.

I2

As we must, we assume the plaintiffs’ story: Florentino and

Elizabeth Martinez, brother and sister, were driv ing with

Elizabeth’s minor daughter in Ramiro Reyes’s pickup t ruck on

Interstate 12 in St. Tammany Parish, Louisiana, en route to

Alabama. The truck had Texas plates.

When they passed a marked Louisiana State Police vehicle, Carl

Sazan, a Louisiana State Trooper, pulled them over. They were

driving under the speed limit. At Sazan’s request, Florentino got

out of the truck, producing his driver’s license and proof of

registration. Sazan ordered Florentino to remain standing in the

cold rain while he returned to his vehicle, presumably to verify

that the truck was not stolen. Sazan issued a warning citation for

following too closely, although there had been no vehicle ahead.

Florentino denied that there were any drugs or weapons in the truck

but signed a consent-to-search form at Sazan’s request.

Sazan then ordered Elizabeth to leave the pic kup truck and

stand in the rain with her child while he searched it. Sazan

refused to allow Elizabeth to retrieve a jacket for her daughter.

Another trooper, a John Doe defendant, subsequently arrived with a

police dog. The dog searched inside and under the truck, but

barked only when Doe pulled the dog’s chain.

Although no drugs were found, Sazan ordered the Martinezes to

follow him to Troop L Headquarters in Mandeville, Louisiana, where

Kevin Armstrong was the commanding officer. Sazan, Doe, and

another unidentified off icer, now Richard Roe, searched the

vehicle.3

It is asserted that the search at the station exceeded the

permission given the officer; that it was conducted negligently and

maliciously; and that the police removed the gas tank and placed

the truck on a lift that slammed it to the ground. The search

lasted fo r three to four hours. It cost $2,209.20 to repair the

damage done to the truck by the search.

During the search at the station house, Florentino, Elizabeth,

and the mi nor were forced to stand under an outside porch cover

exposed to the weather. Roe left the shop during the search,

stating that drugs had been found and that the adults would be put

in jail, and the child placed in foster care. In fact, no drugs or

other contraband were found, and no criminal charges were ever

filed.

The plaintiffs sued Sazan, the arresting officer, an d the

supervisory officers, Whittington, Ryan, and Arms trong, under §§

1983 and 1985(3) for denial of their constitutional rights. They

also asserted claims under the Louisiana Constitution and the

Louisiana Civil Code. The Martinezes claimed general and special

damages of $55,000 each for their discomfort, embarrassment,

humiliation, loss of dignity, and loss of privacy. Reyes sought

$2,209.20 for the damage to his truck, plus $5,000 in punitive

damages.

Defendants moved to dismiss, alleging that they could not be

held liable under § 1983 for monetary damages and that Reyes had no

claim under § 1983 or § 1985(3) because he was not in the car. In

addition, Armstrong and codefendants L.M. Ryan and Colonel William4

Whittington, police officials assertedly members of the conspiracy,

maintained that the plaintiffs cannot show that they were liable in

a supervisory capacity and failed to overcome their defense of

qualified immunity. Sazan specifically argued that the Martinezes

failed to allege facts sufficient to defeat the defense of

qualified immunity. All defendants meanwhile argued that the §

1985(3) claim failed to state a claim and was insufficient to

overcome the defense of qualified immunity. Finally, defendants

pressed both the bar of the Eleventh Amendment to the state law

claims, and its contention that the state claims did not meet the

jurisdictional amount requirements of diversity jurisdiction.

The plaintiffs replied that their suits were against the

defendants in their individual capacities and that these defendants

were not entitled to qualified immunity. They explained that

Whittington had responsibility for guiding the discre tion of

officers and for disciplining them, that Ryan and Arms trong had

similar authority over Sazan , and that all three conspired with

Sa zan to enforce traffic laws selectively against Hispanics and

out-of-state residents.

While the district court agreed that Reyes could not maintain

his claims under §§ 1983 and 1985(3), it denied the motion to

dismiss in other respects. It also decided that it had

supplemental jurisdiction over plaintiffs’ state law claims. The

supervisory defendants, Whittington, Ryan, and Armstrong, here

challenge only the denial of their motion to dismiss and the denial

of the Eleventh Amendment defense to the state law claims.5 II

The complaint alleges specific facts detailing plaintiffs’

personal experience with Sazan. It offers no similar detail for

the claim that defendants Whittington, Ryan, and Armstrong

conspired to deny them and other Hispanic drivers their c ivil

rights. The district court concluded that the plaintiffs had

“plead with parti cularity that this was part of a policy to stop

and search those of Hispanic origin and/or that the supervisors

failed to adequately train and/or monitor the Troopers.” The court

did not dismiss the suit, suggesting that it would grant summary

judgment to the supervisors absent evidence raising a genuine issue

of material fact. As we will explain, we do not agree that the

claim was plead with particularity against the supervisory

officers, and we conclude that the district court moved too

quickly.

Faced with sparse details of claimed wrongdoing by officials,

trial courts ought routinely require plaintiffs to file a reply

under Federal Rule of Civil P rocedure 7(a) to qualified immunity

defenses. S ee Schultea v. Wood

, 47 F.3d 1427, 1430, 1432 (5th Cir.

1995) (en banc). The S chultea court held that “the [district]

court may, in its discretion, insist that a plaintiff file a reply

tailored to an answer pleading the defense of qualified immunity.”

Id. at 1433-44. The district court need not allow any discovery at

this point unless the “plaintiff has supported his claim with

sufficien t precision and factual specificity to raise a genuine6

issue as to the illegality of defendant’s conduct at the time of

the alleged acts.” Id. at 1434.

Plaintiffs did not allege their claims against the supervisory

defendants with particularity. Their pleading was little more than

a bare conclusion, and the district court erred in finding the

complaint to be sufficient. Rather, it should first have ordered

a reply, and if the required detail was not forthcoming, dismiss

the complaint. The S chultea rule governing the Rule 7(a) reply is

an instantiation of the more general principle that “heightened

pleading” is needed in qualified immunity cases. S ee id. at 1430.

Heightened pleading requires allegations of fact focusing

specifically on the conduct of the individual who cau sed the

plaintiffs’ injury. S ee Wicks v. M ississippi State Employment

Servs. , 41 F.3d 991, 995 (5th Cir. 1995).

The district court abused its discretion in failing to require

a Rule 7 reply. As the S chultea court made clear, “Vindicating the

immunity doctrine will ordinarily req uire such a reply, and a

district court’s discretion not to do so is narrow indeed when

greater detail might assist.” Id. at 1434.

The Supreme Court since Schultea has attempted to clarify the

the jurisdiction of the court s of appeal to review a denial of

qualified immunity. At present, the rule of jurisdiction comes to

this: Legal conclusions are immediately appealable, but not the

sufficiency of the evidence to support the denial. S ee Behrens v.

Pelletier

, 516 U.S. 299, 313 (1996); Johnson v. Jones

, 515 U.S.

304, 313 (1995). The appellate court can consider the materiality7

of disputed issues of fact, but not contentions that there are

factual disputes. S ee Colston v. Barnhart

, 146 F.3d 282, 284 (5th

Cir. 1998).

The Supreme Court’s refinement of qualified immunity

jurisdiction has only made the more important Schultea ’s emphasis

upon the repl y as a tool of the trial court insisting on

particularity in pleading. Indeed, the Court’s vigorous adherence

to the distinction between fact and law--or genuine issues and

material issues--underscores the strength of the Schultea approach.

Whether the complaint is insufficiently parti cular, and thus a

reply to the defense of qualified immunity is needed, is a question

o f law. Similarly, we can examine afresh whether a reply is

“tai lored to the assertion of qualified immunity and fairly

engage[s] its allegations,” Schultea

, 47 F.3d at 1433, a look that

does not require reviewing the record to determine if the reply’s

factual assertions are true.

III

We also have jurisdiction over the appeal of the denial of

Eleventh Amendment immunity on the state law claims. S ee Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139

(1993). Such appeals are within the collateral order doctrine’s

ambit because the denial of immunity “ ‘[1] conclusively

determine[s] the disputed question, [2] resolve[s] an important

issue completely separate from the merits of the action, and [3]

[is] effectively unreview able on appeal from a final judgment.’"

Id. at 144 (quoting Coopers & Lybrand v. Livesay

, 437 U.S. 463, 4681 In Woods v. Smith , 60 F.3d 1161, 1167 (5th Cir. 1996), the

court concluded that it lacked jurisdiction to consider an

interlocutory Eleventh Amendment defense, but only because it found

“no such denial [of Eleventh Amendment immunity] here in the trial

court's refusal to dismiss the state law claims.” While the court

did not elaborate on why it found no such d enial, its language

imp lies that the trial court had not considered the Eleventh

Amendment issue. In this case, by contrast, the district court

expressly considered and rejected the Eleventh Amendment defense,

and this court thus has jurisdiction over the interlocutory appeal

on Eleventh Amendment grounds. If the Eleventh Amendment does

apply, we would need to reverse rather than remand for further

pleading.

8 (1978)) (alterations adding numbers in original). “[T]he value to

the States of their Eleventh Amendment immunity, like the benefit

conferred by qualified immunity to individual officials, is for the

most part lost as litigation proceeds past motion practice.” Id. at

145. 1

The defendan ts’ Eleventh Amendment defense to the state law

claims arises from the Supreme Court ’s decision in P ennsylvania

State School and Hospital v. Halderman

, 465 U.S. 89 ( 1984). The

Court held that the fiction of Ex parte Young

, 209 U.S. 123 (1908),

w ill not save efforts to enforce prospectively state law agai nst

state officials and that the Eleventh Amendment is a bar, if it is

otherwise applicable. But the Eleventh Amendment is not otherwise

applicable here because the officers are sued personally, and

plaintiffs have no need of the Young fiction. S ee id. at 101

(“‘The general rule is that relief sought nominally against an

officer is in fact against the sovereign if the decree would

operate against the latter.’") (quoting Hawaii v. Gordon, 373 U.S.

57, 58 (1963) (per curiam)); see also Hafer v. Melo

, 502 U.S. 21

(1991).2 The defendants do not challenge the federal claim on Eleventh

Amendment grounds. See Flowers v. Phelps , 964 F.2d 400, 401 (5th

Cir. 1992) (citing Scheuer v. Rhodes

, 416 U.S. 232, 237-38 (1974))

(finding no Eleventh Amendment bar to a § 1983 claim); Hafer , 502

U.S. at 29-31.

9 Our question then is whether a claim against these defendants

individually will nonetheless run to the state treasury under

Louisiana law. We treated the issue in H ughes v. Savell

, 902 F.2d

376 (5th Cir. 1990). 2 In H ughes

, the court reversed an award of

damages against a Louisiana prison guard on a state law negligence

claim, findi ng that claim barred by the Eleventh Amendment.

Although the plaintiff in Hughes purported to sue the guard in his

individual capacity, the court recited that the Amendment bars

suits against state officials when “the s tate is the real,

substantial party in interest.” Id. at 377 (quoting Ford Motor Co.

v. Department of Treasury , 323 U.S. 459, 464 (1945)). Construing

Louisiana law, the court found t hat a prison guard could not be

ind ividually liable for such an attack, and that state prison

employee negl igence would be imputed to the state when liability

was assigned. See id. at 379.

Applying Hughes , the question is whether the state officials

here could be personally liable for the state law violations. The

district court rejected the argument from Hughes on the basis that

the “plaintiffs here assert no such claim,” i.e. did not maintain

that personal liability would be imputed to the employer. In the

motion to dismiss, defendants requested only that the claims be

dismissed “insofar as they are sued in their official capacities.”

T hey thus could be seen as not asserting that the state law10

indemnifies them from personal liability. We read the defendants’

r e ference to “official capacities” broadly as including suits

against the defendants personally but indemnified by the state.

We find no bar. The Louisiana provisions sued upon are

statutes of general applicability, not provisions specifically

concerning conduct of government officers. S ee, e.g.

, La. Civ

.

Code art. 2315 (“ Every act whatever of man that causes damage to

another obliges him by whose fault it happened to repair it.”).

While Louisiana law offer s indemnification of state employees in

some circumstances, such indemnification extends only to an

employee acti ng “within the scope of his office, employment,

contract, or assignment and such damages did not result from the

intentional wrongful act or gross negligence of the official,

officer, or employee.” La. Rev. Stat. § 13:5108.2(B).

Because there is at least a fact issue concerning whether the

officers here acted intentionally or with gross neglig ence, the

officials might not receive indemnification. Moreover, while we

need not consider the issue here, other circuits have held that a

state’s decision to indemnify an officer does not turn the suit

into one in the officer’s official capacity. S ee Blaylock v.

Schwinden

, 862 F.2d 1352, 1354 (9th Cir. 1988); Wilson v. Beebe

,

770 F.2d 878 (7th Cir. 1985) (en banc).

IV

We VACATE the district court’s denial of qualified immunity to

Whittington, Ryan, and Armstrong, and REMAND with instructions to

require that the plaintiffs file a reply to the defense. We AFFIRM11

the district court’s ruling that the Eleventh Amendment affords no

d efense to the state law claims asserted against the officers

personally.

VACATED and REMANDED in part; AFFIRMED in part.