*

Pursuant to Local Rule 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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

_______________________________

No. 95-20719

Summary Calendar

_______________________________

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 subsequently awarded summary judgment to Conner on this claim. The

plaintiffs have not appealed thisruling and, therefore, abandon all claims against Conner on appeal. SeeYohey

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 MarshallToliver (Toliver), son ofEdward and

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

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

following a domestic dispute between Toliver and his girlfriend, 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 plaintiffs 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 plaintiffs’ complaint with a motion to dismiss under Federal Rule of Civil Procedure (FRCP)

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

motion, 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 plaintiffs 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 Leatherman decision extends only to suits against
3

See Schultea v. Wood, 47 F.3d 1427, 1434 (5thCir. 1995)(en banc);see alsoBaker v. Putnal,

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

4

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

5

Id.

3

municipalities 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 applythe heightened pleading standard to the plaintiffs’ claims against Urban, this argument

must fail.

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

court still erred by failing to give the plaintiffs the opportunity to file a reply to Urban’s claim of

qualified immunity. In Schultea, this Court clarified the responsibilities of the parties and district

courts in § 1983 suits:

First, the district court must insist that a plaintiffsuing 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, insist that a plaintiff file

a reply tailored to an answer 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 plaintiffs argue that the district court abused its discretion by failing to

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

qualified immunity”.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 plaintiffs had no opportunity to reply to Urban’s assertion of qualified immunity; rather, the

district court concluded that the plaintiffs’ complaint as augmented by their responses could not
6

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 district court satisfied the Schultea

requirements.

Finally, the plaintiffs complain that the district court converted 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 asrequired by FRCP 56(c). The plaintiffs argue that

this notice was not given.

Assuming that the district court did consider evidence 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 could

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

evidence outside the pleadings.7 In the instant case, the plaintiffs 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 plaintiffsto 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.