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this opinion should not be published and is not precedent except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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10987

Summary Calendar

_____________________

J. CHRISTOPHER TARANTINO,

Plaintiff-Appellant,

versus

DARR D. PIERCE, Individually and in his

capacity as a City of Dallas Fireman,

Defendant,

CITY OF DALLAS,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Northern District of Texas

(3:97-CV-426-D)

_______________________________________________________

June 15, 1998

Before REAVLEY, KING and DAVIS, Circuit Judges.

PER CURIAM:*

Appellant J. Christopher Tarantino sued Darr Pierce, a

firefighter for the City of Dallas, and the City of Dallas (City)

for injuries allegedly sustained during an altercation between

Tarantino and Pierce. The district court granted summary
1 In his motion for leave to amend, Tarantino explained

that “pressed” in the original complaint should have read

“oppressed.”

2 TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West 1997). The

Act applies to political subdivisions of the state, including

cities. Id. § 101.001(2)(B).

2

judgment for the City, certifying the partial judgment as final

and appealable under Fed. R. Civ. P. 54(b). Tarantino appeals

the judgment in favor of the City, arguing that he raised fact

issues precluding summary judgment on his federal and state

claims. He also argues that the district court erred in denying

his motions for leave to amend and to continue the summary

judgment proceedings to allow for further discovery. We affirm.

Summary judgment was properly granted on the state law

negligence and gross negligence claims. The complaint alleged

that on May 5, 1995, Pierce “physically assaulted, battered and

officially pressed”1 Tarantino. Tarantino asserted in an

affidavit that he was attacked by Pierce, “who appeared to be in

a violent rage for no provocation after asking for assistance for

disabled motorists.” This incident occurred at a fire station. 

Under the Texas Tort Claims Act, sovereign immunity is not

waived on any claim “arising out of assault, battery, false

imprisonment, or any other intentional tort . . . .”2 Even if

the claim can be characterized as one for negligence or gross

negligence, sovereign immunity is only waived if the injury

arises from the operation or use of a motor-driven vehicle or
3 Id. § 101.021.

4 Dallas County Mental Health & Mental Re Ctr. v. Bossley,

1998 WL 169715, at *3 (Tex. Apr. 14, 1998).

5 Id. at *4.

6 Id.

3

equipment, or was caused “by a condition or use of tangible

personal or real property.”3 Tarantino’s alleged injury does not

fall within these categories. 

While Tarantino argues that he was injured when Pierce threw

him to the ground, this “use” of real estate was so incidental to

the alleged physical assault that we do not believe Texas has

waived sovereign immunity from such a claim. The Texas Supreme

Court recently emphasized that “the waiver of immunity in the

Tort Claims Act is not, and was not intended to be, complete.”4

It rejected the notion that the mere involvement of property in

the injury is sufficient to waive sovereign immunity. 

If only involvement were required, the waiver of

immunity would be virtually unlimited, since few

injuries do not somehow involve tangible personal or

real property. Requiring only that a condition or use

of property be involved would conflict with the Act’s

basic purpose of waiving immunity only to a limited

degree.5

Instead, the court held that “[p]roperty does not cause injury if

it does no more than furnish the condition that makes the injury

possible.”6 The plaintiffs had alleged that their son escaped

from a mental institution and committed suicide because a

technician had unlocked an outer door and an inner door was left
7 Id.

8 City of Canton v. Harris, 489 U.S. 378, 385 (1989).

9 Daniels v. Williams, 474 U.S. 327, 328 (1986); Davidson

v. Cannon, 474 U.S. 344, 349 (1986).

4

unlocked. The plaintiffs alleged that unlocking the outer door

was a “use” of property, and that the unlocked inner door was a

“condition” of the property. The court held that although the

son’s “escape through the unlocked doors was part of a sequence

of events that ended in his suicide, the use and condition of the

doors were too attenuated from [the son’s] death to be said to

have caused it.”7 In the pending case, the “use” of property was

even more incidental to the injury.

As to Tarantino’s federal claim under 42 U.S.C. § 1983, the

complaint did not assert a federal cause of action against the

City. It alleged that “[t]he City is vicariously liable for any

negligence of Darr D. Pierce in this regard.” Municipalities

cannot be held liable under § 1983 under a respondeat superior or

vicarious liability theory.8 Further, § 1983 liability does not

extend to conduct that is merely negligent.9

Tarantino complains that the district court erred in denying

his motion to amend his complaint and his motion to continue the

summary judgment motion to allow additional discovery. The

substantive law of municipal liability is relevant to both

issues. Under § 1983, “Congress did not intend municipalities to
10 Monell v. Department of Soc. Servs., 436 U.S. 658, 691

(1978).

11 Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.

1984)(en banc). 

12 Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th

Cir. 1994) (en banc) (discussing Canton, supra n.8).

5

be held liable unless action pursuant to official municipal

policy of some nature caused a constitutional tort.”10 An

official policy is:

1. A policy statement, ordinance, regulation, or

decision that is officially adopted and promulgated by

the municipality’s lawmaking officers or by an official

to whom the lawmakers have delegated policy-making 

authority; or 

2. A persistent, widespread practice of city officials

or employees, which, although not authorized by

officially adopted and promulgated policy, is so common

and well settled as to constitute a custom that fairly

represents municipal policy. Actual or constructive

knowledge of such custom must be attributable to the

governing body of the municipality or to an official to

whom that body had delegated policy-making authority.11

In the case of a municipality’s alleged failure to train its

employees, the Supreme Court has rejected a gross negligence

standard in favor of a deliberate indifference standard. The

plaintiff must show a deliberately indifferent policy of training

that was the “closely related” cause of the constitutional

violation.12

“Whether leave to amend should be granted is entrusted to

the sound discretion of the district court, and that court’s
13 Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.

1993).

14 Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539,

546 (5th Cir. 1980).

15 Louisiana v. Litton Mortgage Co., 50 F.3d 1298, 1303

(5th Cir. 1995).

16 Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th

Cir. 1990).

6

ruling is reversible only for an abuse of discretion.”13 Leave

to amend need not be given if the complaint as amended would be

subject to dismissal.14 In ruling on a motion for leave to

amend, the court may consider whether granting leave to amend

would impose undue prejudice on the opposing party.15

Fed. R. Civ. P. 56(f) provides that the court may continue a

summary judgment motion to allow additional discovery, “[s]hould

it appear from the affidavits of a party opposing the motion that

the party cannot for reasons stated present by affidavit facts

essential to justify the party’s opposition.” Rule 56(f) is only

applicable to situations where a party shows that the additional

discovery will aid it in presenting a viable opposition to the

summary judgment motion.16 A party seeking continuance of a

motion for summary judgment in order to obtain further discovery

must show “why he needs additional discovery and how the

additional discovery will create a genuine issue of material

fact. The nonmoving party ‘may not simply rely on vague

assertions that additional discovery will produce needed, but
17 Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th

Cir. 1993)(citations omitted; emphasis in original).

18 Id. at 1441.

19 Overseas Inns S.A. P.A. v. United States, 911 F.2d 1146,

1151 (5th Cir. 1990) (quoting district court below).

7

unspecified facts.’”17 We review the district court’s denial of

a Rule 56(f) motion for abuse of discretion.18

We conclude that the district court did not abuse its

discretion in the denying the motions to amend and for a Rule

56(f) continuance. First, granting the motions would have

prejudiced the City, which had already moved for summary judgment

in reliance on the claims alleged in the original complaint. The

original complaint did not include a federal claim against the

City. We have noted as a general proposition that “[a] party

should not, without adequate grounds, be permitted to avoid

summary judgment by the expedient of amending its complaint.”19 

Second, Tarantino did not show that he even understood the

burden he faced in making a showing of municipality liability

under § 1983, much less that he was capable of making such a

showing with further discovery. The proposed amended complaint

added an allegation that “[t]he City is alternatively liable

because of a pattern, practice or policy of constitutional

violations or grossly inadequate training that was likely to

result in constitutional violations.” The Rule 56(f) motion

states that plaintiff and his attorney “are aware of police and
8

fire department employees who have committed violent acts due to

job-related stress and who feel that the City’s response to jobrelated stress is grossly inappropriate.” The references to

“grossly inadequate” or “grossly inappropriate” training suggest

a gross negligence standard. As explained above, municipal

liability for failure to train cannot be based on a gross

negligence; the more stringent deliberate indifference standard

applies. The motion for leave to amend states that plaintiff

“seeks to add an allegation to make it clear that the City of

Dallas is alleged to be liable vicariously for the constitutional

deprivation of its employee.” As explained above, municipalities

cannot be held vicariously liable under § 1983. Tarantino’s

affidavit states that he has heard City firemen admit that jobrelated stress has brought them to the verge of violence, that

City supervisors discouraged them from getting appropriate help,

and that “I also have the sense that these problems may have been

widespread.” However, Tarantino did not indicate that he

understood, intended to prove, or was capable of proving that the

City’s practice of discouraging firemen from getting appropriate

psychological help was so common and well settled as to

constitute a custom that fairly represents municipal policy, or

that actual or constructive knowledge of such custom is

attributable to the governing body of the municipality or to an

official to whom that body has delegated policy-making authority. 
9

As explained above, the plaintiff must make such showings to

prevail against a municipality under § 1983.

Finally, we note that the proposed amended complaint did not

state a claim against the City under state law. Insofar as it

can be read to assert a negligent training claim under state law,

the waiver of sovereign immunity under state law only extends to

the operation of motorized vehicles or equipment, and injuries

caused by the operation or use of tangible personal or real

property, as explained above. A negligent training claim does

not fall under these exceptions to sovereign immunity.

AFFIRMED.