* Pursuant to Local Rule 47.5, the C o urt has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 95-20719

Summary Calendar

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EDWARD TOLIVER and Myrtle Toliver,

Plaintiffs-Appellants,

VERSUS

ROBERT CONNER, Individually and is his Official Capacity as Police Officer of Columbus,

Texas; Russell Urban, Individually and in his Official Capacity as Police Officer of Columbus,

Texas; Colorado County Texas; Bill Easterling, Individually and in his Official Capacity as Sheriff

of Colorado County, Texas; Elton Adcock, Individually and in his Official Capacity as Jail

Administrator of the Colorado County Jail,

Defendants-Appellees.

_____________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-H-92-2947)

_____________________________________________________

August 5, 1996

Before WISDOM, HIGGINBOTHAM, and PARKER, Circuit Judges.

PER CURIAM: *1 The district court subs equently awarded summary judgment to Conner on this claim. The

plaintiffs have not appealed this ruling and, therefore, abandon all claims against Conner on appeal. S ee Yohey

v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993).

2 507 U.S. 163, 166 (1993).

2 June 14, 1992, Officer Robert Conner arrested Marshall Toliver (Toliver), son of Edward and

Myrtle Toliver, the plaintiffs-appellants, and charged him with resisting arrest. The plaint iffs allege

that during this arrest, Conner severely beat Toliver, causing internal injuries. On July 19, 1992,

following a domestic dispute between Toliver and his girlfrie nd, Officer Robert Urban arrested

Toliver for disorderly conduct and public intoxication. Toliver was placed in the Colorado County,

Texas jail, where he committed suicide by hanging himself with his belt.

Toliver’s death prompted the plaint iffs to bring this suit to seek redress from the defendantappellees under 42 U.S.C. § 1983 and the Texas Wrongful Death statute. The defendants responded

to the plaint iffs’ complaint with a motion to dismiss under Federal Rule of Civil Procedure (FRCP)

12(b)(6), in which they assert the defense o f qualified immunity. The district court granted this

mot io n, except with respect to the pendent state-law claims and an excessive force claim against

Conner arising from Toliver’s first arrest. 1 The plaintiffs appeal this ruling. Finding no reversible

error, we AFFIRM.

The plaint iffs first contend that the district court erroneously applied the “heightened

pleading” standard to their claims against defendant Urban. According to the plaintiffs, the Supreme

Court overruled this standard in Leatherman v. Tarrant County Narcotics Unit

, 2 so that their

complaint needed only to satisfy the notice pleading requirements of FRCP 8. Though it addressed

the heightened pleading requirement, the Le atherman decision extends only to suits against3 See Schultea v. Wood

, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc); see also Baker v. Putnal

,

75 F.3d 190, 195 (5th Cir. 1996).

4 Schultea , 47 F.3d at 1433-34 (emphasis added).

5 Id.

3 municipalit

ies and does not affect the application of the heightened pleading standard to suits against

individual government officers, which includes police officers. 3 Thus, even assuming that the district

court did apply the heightened pleading standard to the plaint iffs’ claims against Urban, this argument

must fail.

Next, the plaint iffs contend that even if Schultea is the controlling case law, then the district

c o urt st ill erred by failing to give the plaintiffs the opportunity to file a reply to Urban’s claim of

qualified immuni ty. In S chultea

, this Court clarified the responsibilities of the parties and district

courts in § 1983 suits:

First, the district court must insist that a plaint iff suing a public official under § 1983

file a short and plain statement of his complaint, a statement that rests on more than

conclusions alone. Second, the court may, in its discretion, i nsist that a plaintiff file

a reply tailored to an answ er pleading the defense of qualified immunity

. Vindicating the immunity doctrine will ordinarily require such a reply, and a district

court’s discretion to do so is narrow indeed when greater detail might assist. 4

Relying on this language, the plaint iffs argue that the district court abused its discretion by failing to

give them an opportuni ty to file “a reply tailored to [the defendants’] answer pleading the defense of

qualified immunit

y”. 5 In making this argument, however, the plaintiffs overlook the fact that they

filed two responses to the defendants’ motion to dismiss. The situation, then, is not one in which

the plaint iffs had no oppo rt unit y t o reply to Urban’s assertion of qualified immunity; rather, the

district court concluded that the plaint iffs’ complaint as augmented by t heir responses could not6 See Todd v. Hawk , 72 F.3d 443, 446 (5th Cir. 1995).

7 Washington v. Allstate Ins. Co. , 901 F.2d 1281, 1284 (5th Cir. 1990) (emphasis added)

(quoting Clark v. Tarrant County , 798 F.2d 736, 746 (5th Cir. 1986)).

8 Id. (“At least from the date that the [plaintiff] himself submitted to the court matters outside

the pleadings,

. . . [the plaintiff] was on notice that the trial court could treat the motion to dismiss as a motion

for summary judgment.”)

4 survive the motion to dismiss. 6 In these circumstances, the dist rict co urt satisfied the S chultea

requirements.

Finally, the plaint iffs complain that the district cour t co nverted the remaining defendants’

motion to dismiss into a FRCP 56 motion for summary judgment by considering evidence outside of

the pleadings. The plaintiffs contend that while the district court may sua sponte make such a

conversion, it must first provide adequate notice as required by FRCP 56(c). The plaintiffs argue that

this notice was not given.

Assuming that the district court did consider evi dence beyond the pleadings, no error was

committed. The only record evidence available for the court’s consideration consists of documents

that the plaintiffs attached to their first response to the defendants’ motion to dismiss. FRCP 56©

only requires that parties have at least ten days notice before final judgment “that the court c ould

properly treat such a motion as one for summary judgment because it has accepted for consideration”

evidence outside the pleadings. 7 In the instant case, the plaint iffs had such notice at least from the

date when the court accepted their initial response with attached exhibits for consideration, 8 which

occurred three years before the district court granted the defendants’ motion. This span of time was

more than sufficient for the plaint iffs to come forward with additional evidence to support their claim.5

Thus, even assuming that the district court did convert the defendants’ motion to dismiss to one for

summary judgment, the plaintiffs had adequate notice.

AFFIRMED.