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this opinion should not be published and is not precedent except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

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-10527

ENRIQUE MANZANO BORROTO,

Plaintiff-Appellant,

VERSUS

JAMES R. WILSON, JR., ET AL,

Defendants,

JAMES R. WILSON, JR., KEVIN CAMPBELL,

CITY OF DALLAS,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas,

Dallas Division

(3:92-CV-2102-X)

February 18, 1998

Before REYNALDO G. GARZA, DUHE, and STEWART, CIRCUIT JUDGES.

PER CURIAM:*

The case before us is an appeal from a decision of the

United States District Court for the Northern District of Texas,

Dallas Division, the Honorable Joe Kendall, presiding. In this

case, the Plaintiff-Appellant, Enrique Manzano Borroto

(“Borroto”), Texas state prisoner number 611806, filed a civil
2

rights complaint against the Dallas Police Department (the City

of Dallas later replaced the Dallas Police Department as a

defendant), James R. Wilson, Jr. (“Wilson”), and Kevin Campbell

(“Campbell”)(collectively, “the Defendants”). At the time of the

incident in question, Wilson and Campbell were police officers in

Dallas. The Defendants prevailed at the district court level,

and Borroto now appeals.

Background

Borroto filed this lawsuit in the United States District

Court for the Northern District of Texas, Dallas Division, on

October 9, 1992, as a result of allegations Borroto made

regarding his arrest by the Dallas Police Department on October

14, 1991. Borroto alleges that his civil rights were violated

because officers Wilson and Campbell lacked probable cause to

arrest him and used excessive force to effect the arrest.

Borroto filed suit against Wilson, Campbell, and the Dallas

Police Department under 42 U.S.C. §1983. This pro se civil

rights complaint was filed on October 9, 1992. On November 4,

1992, the district court adopted the findings and conclusions of

the magistrate judge, ordered that Borroto’s complaint be

construed as a writ of habeas corpus, and entered judgment

dismissing the case for failure to exhaust state remedies. 

Borroto appealed, and this circuit vacated the district court’s
 

1Borroto v. Wilson, et al, 988 F.2d 1213 (5th Cir.

1993)(unpublished opinion)(hereinafter Borroto I).

3

judgment on March 18, 1993.1 Borroto’s case was remanded for

further proceedings regarding only Borroto’s excessive force

claims.

On December 21, 1993, the district court issued summons for

Wilson, Campbell, and the Dallas Police Department. Campbell and

the Dallas Police Department, after some legal maneuvering, 

answered in this action. Wilson did not answer and was dismissed

from this case because he moved out of state.

On June 7, 1994, Borroto moved for leave to amend his

complaint and add the City of Dallas a defendant in this case

(replacing the Dallas Police Department), and this motion was

granted. The amended complaint was filed on September 9, 1994. 

In April of 1995, the district court ordered the US Marshal’s

Service to serve the summons and the amended complaint upon all

Defendants. The City of Dallas was served, and the summons for

Wilson and Campbell were returned unexecuted. During this time,

Borroto moved for appointment of counsel, and was denied. He

also filed various discovery requests and requests for issuance

of subpoenas, which were also denied. The district court

subsequently dismissed Wilson and Campbell as defendants, and

entered summary judgment in favor of the City of Dallas on May

21, 1996. Borroto timely appealed, and the matter now lies

before this panel.
4

Standard of Review

The appropriate standard of review for the dismissal of

Wilson and Campbell as parties is for abuse of discretion. 

Fed.R.Civ.P. 4; see also Rochon v. Dawson, 828 F.2d 1107, 1109

(5th Cir. 1987).

This court reviews the grant of summary judgment de novo. 

Texas Medical Ass’n. v. Aetna Life Ins. Co., 80 F.3d 153, 156

(5th Cir. 1996). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.” 

Fed.R.Civ.P. 56(c). We examine the evidence in the light most

favorable to the non-movant. Abbott v. Equity Group, Inc., 2

F.3d 613, 619 (5th Cir. 1993).

Analysis

First of all, it should be noted that this circuit has

jurisdiction over this case. The Defendants claimed that this

court did not have jurisdiction because Borroto filed his appeal

before the final judgment was filed. The prematurity of the

notices of appeal does not deprive this court of jurisdiction. 

The defect was cured by the entry of a final order by the

district court, and Borroto adequately identified the order which
5

he wished to appeal. See Simmons v. Willcox, 911 F.2d 1077, 1080

(5th Cir. 1990).

Borroto claims that Judge Kendall erred in denying his

request for assistance of counsel. There is no absolute right to

appointment of counsel in a civil rights case. Ulmer v.

Chancellor, 691 F.2d 209, 212 (5th Cir. 1992). The district

court should consider whether the indigent is capable of

adequately presenting and investigating the case, whether the

evidence was of such complexity as to require skill in presenting

evidence and cross-examination, whether appointment of counsel

would assist in sharpening the issues of the case, and the

general size and complexity of the case. Id. at 213. 

Apparently, Judge Kendall believed that Borroto could handle

himself quite well in this case, and that Borroto competently

presented documents, filed motions, and submitted briefs. We

find no reversible error in this decision, and affirm on this

point.

The next issue is whether Campbell was properly served. We

already ordered that this case go forward on the excessive force

claims in Borroto I. Campbell and the Dallas Police Department

were appropriately served with the original summons and

complaint. Borroto amended his complaint to include the City of

Dallas rather than the Dallas Police Department, and the US

Marshal’s Office was ordered to serve the amended complaints. 
 

2"...every pleading subsequent to the original complaint ...

shall be served upon each of the parties.” (emphasis added).

 

3See, e.g., George v. United States Dept. of Labor, O.S.H.A.,

788 F.2d 1115, 1116 (5th Cir. 1986).

6

The amended summons for the officers were returned unserved, and

the case against the two officers was dismissed. We hold that

this was reversible error with regard to Campbell. Although

Campbell had been properly served with the original complaint,

failure to serve him with the amended complaint was a violation

of F.R.Civ.P. 5(a). The language of Rule 5 is mandatory;2 the

Rule, however, does not speak of a remedy. While recognizing a

district court’s broad discretion in determining whether to

dismiss an action for failure of service,3 we find that the

district court here abused its discretion by imposing the harsh

sanction of Campbell’s dismissal. 

Here, Borroto, a pro se plaintiff, amended his original

complaint to change one defendant, but added no new claims

against the other defendant, Campbell. Given service on him of

the original complaint, Campbell was fully aware that he was a

party to the suit. Finally, Campbell can show no prejudice

resulting from Borroto’s failure to serve him with the amended

complaint. A basic theory of Rule 5 is that service of

subsequent pleadings will expedite the proceedings while at the

same time “constitut[ing] sufficient notice to the party to
 

4Wright & Miller, Federal Practice and Procedure §1146, at

424-425 (1987).

7

comply with the requirements of due process.”4 That, together

with the specific facts presented, convinces us that the district

judge abused his discretion by dismissing Campbell. We reverse

and remand on this issue, and hold that trial should proceed

against Campbell on Borroto’s excessive force claim.

The last issue is whether summary judgment was appropriate

in favor of the City of Dallas. The general rule is that a local

government can be liable under §1983 for the unconstitutional

acts of its employees. Monell v. Dept. of Soc. Servs. of the

City of New York, 436 U.S. 658, 690-691 (1978); see also Flores

v. Cameron County, 92 F.3d 258, 263 (5th Cir. 1996). A city can

be liable under §1983 if its official policy or custom deprives a

person of a federally protected right, though it cannot be held

liable under respondeat superior. Monell, 436 U.S. at 694. A

persistent and widespread custom of employees which is common and

well-settled, even if not explicitly authorized, can constitute a

city policy for the purposes of liability. Webster v. City of

Houston, 735 F.2d 838, 841 (5th Cir. 1984). The burden of proof

is upon the plaintiff to identify the policy, connect the policy

to the city, and show how he was harmed by the policy. Bennett

v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). 

We hold that the district court erred in granting summary
8

judgment for the City of Dallas. We are not stating that bare

allegations are enough to survive summary judgment, or that

restrictions on the breadth of a plaintiff’s discovery requests

(such as those which occurred in this case) can create a general

basis for overcoming summary judgment. This case should not be

cited for any such proposition. We merely hold that in this

case, Borroto should have his day in court. It would be both

unfair and illogical to limit his case merely to a cause of

action against Campbell, and to state that Borroto did not have

enough evidence to survive summary judgment when the court’s

rulings, coupled with his status as a prisoner, made it rather

difficult for him to conduct an investigation. This conclusion

is based on the specific facts of this case, and should not be

cited as precedent otherwise.

Conclusion

We hold that Campbell was appropriately served and that

Borroto proved enough to survive summary judgment. Accordingly,

we REVERSE AND REMAND for trial on the issue of excessive force

against these two defendants. However, we AFFIRM the decision of

the district court to dismiss Wilson as a party and its decision

not to appoint counsel for Borroto.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.