UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20662 Summary Calendar

DONALD WAYNE CYIARK, Plaintiff-Appellee,

versus

CITY OF HOUSTON; CHARLES E.

KENNEDY; WAYNE HANKINS,

Defendants,

and

E.T. BICE, Defendant-Appellant.

ASSOCIATED WITH

___________________________________

No. 95-20732 Summary Calendar

____________________________________

DONALD WAYNE CYIARK, Plaintiff-Appellee

versus

THE CITY OF HOUSTON, ET AL.,

Defendants,

and

WAYNE HANKINS, Defendant-Appellant.

Appeals from the United States District Court

For the Southern District of Texas
(CA-H-94-3192 & H-94-CV-3192)

March 6, 1996* 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.

1 _____ U.S. _____, 115 S.Ct. 2151 (1995).

2 Johnson; Jackson v. City of Atlanta, Tx. , 73 F.3d 60 (5th Cir. 1996).

3 Johnson; Schultea v. Wood

, 47 F.3d 1427 (5th Cir. 1995) ( en banc )

. The district

court’s order, insofar as we construe it to find contested issues of fact, implicitly rejects the defendants’ claim that Cyiark’s allegations are legally insufficient.

2 Before POLITZ, Chief Judge, GARWOOD and STEWART, Circuit Judges.

PER CURIAM: *

Donald Wayne Cyiark, a stable manager with the Houst on Police Department,

allegi ng that he was subjected to physical and emotional mistreatment by Houston police

officers because of his race, filed a 42 U.S.C. § 1983 action against these officers and the

Cit y of Houston. Defendants Bice, Hankins, and the City of Houston filed motions to

dismiss and/or for summary judgment based upon qualified immunity. The district court

denied these motions, assigning no reasons but citing the recent Supreme Court decision in

Johnson v. Jones

. 1 Defendants Bice and Hankins timely appeal. They also move for

expedited consideration of their appeal. Today’s resolution moots that motion and it is

therefore denied.

W e do not have appellate jurisdiction over the instant district court ruling on the

defendants’ qualified immunity defense. 2 Our review of the record, considering the trial

court’s reference to Johnson v. Jones

, persuades that the district court found genuine issues

of material fact yet to be resolved. In that setting summary judgment is inappropriate.

We do have appellate jurisdiction over the defendants’ claim that the allegations in

Cyiark’s amended complaint are, as a matter of law, insufficient to defeat their defense of

qualified immunity. 3 This challenge requires that we examine Cyiark’s factual allegations4 Hale v. Townley

, 45 F.3d 914, 918 (5th Cir. 1995) (citing Lampkin v. Ci ty of

Nacogdoches

, 7 F.3d 430 (5th Cir. 1993), cert

. d enied , 114 S.Ct. 1400 (1994). S ee also

Johnson (citing Mitchell v. Forsyth , 472 U.S. 511 (1985)).

5 Jackson v. City of Beaumont Police Dept. , 958 F.2d 616 (5th Cir. 1992).

6 Schultea ; Fed.R.Civ.P. 7(a).

3 “to determine whether they would be sufficient, if proven, to establish a violation of clearly

established law.” 4 Our review of the complaint is de novo

. 5

Defendants contend that Cyiark’s allegations are not sufficiently particularized and

theref ore fail the “heightened pleading requirement” they assert is applicable in cases

inv olving claims of qualified immunity. The amended complaint, however, alleges numerous

instances of unprovoked and racially-motivated threats, harassment, and injury at the hands

of Houston police officers. This suffices to state a cause of action under section 1983

sufficient to overcome defendants’ claim of qualified immunity at this stage of the litigation.

As recently explained, the purported “heightened pleading requirement” is based on the trial

court’s discretionary autho rity to order a reply to a defendant’s proffer of a qualified

immunity defense. 6 In the case at bar the district court, obviously satisfied with the

complaint as written, opted not to demand more detailed pleadings from Cyiark. In this we

perceive the district court did not err.

DISMISSED in part, AFFIRMED in part, and REMANDED.