UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-4709

Summary Calendar

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HARRY LEE JACKSON,

Plaintiff-Appellee,

VERSUS

CITY OF BEAUMONT POLICE DEPARTMENT,

ET AL.,

Defendants,

DON GORDON, Officer, and

E. R. PACHALL, Officer,

Defendants-Appellants.

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Appeal from the United States District Court

for the Eastern District of Texas

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(April 3, 1992)

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Asserting qualified immunity, police officers Don Gordon and

E. R. Pachall appeal the denial of their Rule 12(b)(6) motion to

dismiss Harry Lee Jackson's § 1983 claim that he was subjected to

excessive force during an arrest, Jackson having earlier survived

a 28 U.S.C. § 1915(d) Spears hearing. This appeal brings to the

fore the differences in the functions of § 1915(d) and Spears

hearings on the one hand and Rule 12(b)(6) on the other. We

REVERSE and REMAND.

I.
1 Issues related to the 1987 arrest (which include an excessive

force claim) are not included in this appeal. This opinion

pertains only to the arrest in 1985.

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In November 1987, Jackson, pro se and in forma pauperis, filed

an action under 42 U.S.C. § 1983 against the "Beaumont [Texas]

Police Department", asserting several claims concerning his June

1987 arrest for aggravated robbery. Although not included within

the "statement of claim", the complaint also referenced, without

providing any detail, an earlier arrest in 1985, involving Jackson

and officers Gordon and "Pascal".1 A Spears hearing was held in

April 1988, by the magistrate judge. That same day, Jackson filed

a "motion for summary judgment", contending that he was entitled to

judgment because of the Police Department's failure to defend. He

included several documents, which asserted that officers Gordon and

"Pahaw" used excessive force during the 1985 arrest. The

magistrate judge, in July 1988, denied the motion (construed as a

request for default judgment), because the Department had not been

ordered to answer. 

Later that month, the magistrate judge recommended that the

excessive force claim be dismissed as frivolous under § 1915(d),

finding that it was time barred. In December 1988, the district

court adopted the recommendation and dismissed the claim. Jackson

appealed. This court reversed and remanded, in January 1990,

finding that "the district court failed to consider whether Texas

tolling provisions for the disability of imprisonment applied ...."

Jackson v. City of Beaumont Police, 894 F.2d 404 (5th Cir. 1990)

(unpublished opinion).
2 In May 1991, the court entered an order correcting the record

to reflect that "Officer Pawhaw" is Officer E. R. Pachall. 

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Following remand, Jackson moved, in March 1990, for permission

to amend his complaint to include, for the first time, officers

Gordon and "Pawhaw" as defendants. Later that month, the district

court, noting that a responsive pleading had not been filed,

granted the motion, but ordered that process not issue pending

review under § 1915(d). A pro se amended complaint was filed in

May 1990, and the magistrate judge held a second Spears hearing

that July. 

In January 1991, the magistrate judge issued a report (adopted

by the district judge in April 1991), which noted that the

excessive force claim was "stated in [the] motion for summary

judgment submitted [in 1988] after [Jackson's first] Spears

hearing", and recommended that the claim not be dismissed as

frivolous. Accordingly, the amended complaint was ordered served

on officers Gordon and Pachall.2 They moved, in March 1991, for

dismissal under Fed. R. Civ. P. 12(b)(6), contending, inter alia,

that Jackson had not plead facts sufficient to overcome their

qualified immunity defense. In early April 1991, Jackson obtained

counsel. The magistrate judge, in May 1991, recommended that the

Rule 12(b)(6) motion be denied, stating that he had already found

in his January 1991 report that Jackson "had sufficiently alleged

facts for each of the elements of a Fourth Amendment excessive

force claim." In July 1991, noting that Jackson had counsel, the
3 "[T]he district court's denial of an immunity defense is an

appealable `final decision' under 28 U.S.C. § 1291, notwithstanding

the absence of a final judgment." Geter v. Fortenberry, 849 F.2d

1550, 1552 (5th Cir. 1988) (citing Mitchell v. Forsyth, 472 U.S.

511 (1985)). "The reason underlying immediate appealability ... is

that `immunity' in this instance means immunity from suit, not

simply immunity from liability." Id.

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district court adopted the report and denied the officers' motion

to dismiss. Gordon and Pachall timely appealed.3 

II.

A.

A district court's ruling on a Rule 12(b)(6) motion is subject

to de novo review. E.g., Barrientos v. Reliance Standard Life Ins.

Co., 911 F.2d 1115, 1116 (5th Cir. 1990), cert. denied, ___ U.S.

___, 111 S. Ct. 795 (1991). The motion may be granted "`only if it

appears that no relief could be granted under any set of facts that

could be proven consistent with the allegations.'" Id. (quoting

Baton Rouge Bldg. & Constr. Trades Council v. Jacobs Constructors,

Inc., 804 F.2d 879, 881 (5th Cir. 1986)). Our review is limited

solely to an evaluation of Jackson's amended complaint. E.g.,

Mahone v. Addicks Util. Dist. of Harris County, 836 F.2d 921, 935

(5th Cir. 1988); Jackson v. Procunier, 789 F.2d 307, 309 (5th Cir.

1986).

However, it appears that the magistrate judge, in considering

the motion to dismiss, determined that an excessive force claim was

stated in Jackson's "motion for summary judgment". (Of course,

Gordon and Pachall were not served with this motion, which was

submitted in April 1988, over two years prior to their being made

defendants in May 1990.) "While it is ... appropriate to look
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beyond the pleadings to decide whether summary judgment should be

granted, the converse is true when the question is whether the

pleadings state a claim. It is black-letter law that `[a] motion

to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6) is to be evaluated only on the pleadings.'"

Mahone, 836 F.2d at 935 (quoting O'Quinn v. Manuel, 773 F.2d 605,

608 (5th Cir. 1985)). Accordingly, consideration of the Rule

12(b)(6) motion should have been confined to an evaluation of the

amended complaint, which, of course, "supersede[d] the original

[complaint] and render[ed] it of no legal effect". Boelens v.

Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985); see also

Clark v. Tarrant County, Texas, 798 F.2d 736, 740 (5th Cir. 1986).

The district court's consideration of information outside Jackson's

amended complaint, however, does not affect our de novo review.

Furthermore, in recommending denial of the defendants' motion,

the magistrate judge stated that the argument raised "ha[d] already

been decided" in his January 1991 report. That report, however,

had reviewed Jackson's amended complaint under § 1915(d), after a

second Spears hearing, to determine whether it should be dismissed

as frivolous. The Rule 12(b)(6) motion, on the other hand, raised

the issue of qualified immunity and asserted that Jackson had not

met this circuit's heightened pleading requirements for § 1983

claims where such a defense can be raised. See, e.g., Brown v.

Glossip, 878 F.2d 871, 874 (5th Cir. 1989).

It is well settled that ruling under § 1915(d) is separate and

distinct from that under Rule 12(b)(6). In Neitzke v. Williams,
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490 U.S. 319, 326 (1989), the Court stated that "the failure to

state a claim standard of Rule 12(b)(6) and the frivolousness

standard of § 1915(d) were devised to serve distinctive goals, and

... while the overlap between these two standards is considerable,

it does not follow that a complaint which falls afoul of the former

standard will invariably fall afoul of the latter." Accord Wilson

v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493 U.S.

969 (1989); Pugh v. Parish of St. Tammany, 875 F.2d 436, 438 (5th

Cir. 1989).

The primary function of § 1915(d) is to deter the filing of

baseless lawsuits by in forma pauperis litigants who "would [not

otherwise] be deterred by either the actual cost of litigation or

the imminence of Rule 11 sanctions." Wilson, 878 F.2d at 850.

Therefore,

[t]o the extent that a complaint filed in forma

pauperis which fails to state a claim lacks even an

arguable basis in law, Rule 12(b)(6) and § 1915(d)

both counsel dismissal. But the considerable

common ground between these standards does not mean

that the one invariably encompasses the other.

When a complaint raises an arguable question of law

which the district court ultimately finds is

correctly resolved against the plaintiff, dismissal

on Rule 12(b)(6) grounds is appropriate, but

dismissal on the basis of frivolousness is not.

Neitzke, 490 U.S. at 328 (footnote omitted). Accordingly,

"frivolousness in the § 1915(d) context refers to a more limited

set of claims than does Rule 12(b)(6)[;] ... not all unsuccessful

claims are frivolous." Id.

On the other hand,

[u]nder Rule 12(b)(6), a plaintiff with an arguable

claim is ordinarily accorded notice of a pending
4 In adopting, in 1991, the magistrate judge's report

recommending denial of the Rule 12(b)(6) motion, the district court

noted that "[t]he magistrate judge explained in detail how

[Jackson's] allegations overcome defendants' qualified immunity

defense." However, as noted, the magistrate judge erroneously

considered the April 1988, "motion for summary judgment" in this

regard; the sufficiency vel non of Jackson's amended complaint in

light of this circuit's heightened pleading requirements for claims

of this type was never considered.

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motion to dismiss for failure to state a claim and

an opportunity to amend the complaint before the

motion is ruled upon. These procedures alert him

to the legal theory underlying the defendant's

challenge, and enable him meaningfully to respond

by opposing the motion to dismiss on legal grounds

or by clarifying his factual allegations so as to

conform with the requirements of a valid legal

cause of action.

Id. at 329-30 (footnote omitted). Section 1915(d) dismissals

involve no such procedural protections; indeed, they "are often

made sua sponte prior to the issuance of process, so as to spare

prospective defendants the inconvenience and expense of answering

such complaints." Id. at 324, 330.

Accordingly, the district court could not deny the officers'

qualified immunity defense simply on the basis that a § 1915(d)

review had determined that Jackson had raised an arguable claim.4

The officers were served with the amended complaint only after §

1915(d) review, and were not present at the Spears hearings which

are generally held in conjunction with review under § 1915(d).

See, e.g., Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir.

1985), abrogated in part by Neitzke v. Williams, 490 U.S. 319

(1989). As such, the qualified immunity issue raised by their Rule

12(b)(6) motion, and the corresponding question of whether Jackson

had met the requisite heightened pleading standard discussed infra,
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were not considered during, and, indeed, were separate and distinct

from, consideration of the frivolousness vel non of Jackson's

amended complaint. Nevertheless, our de novo review is, again,

unaffected by the district court's failure to consider the Rule

12(b)(6) motion separate and apart from the review of Jackson's

amended complaint under § 1915(d). We now turn to that review.

B.

"Qualified immunity cloaks a police officer from liability if

a reasonably competent law enforcement agent would not have known

that his actions violated clearly established law." James v.

Sadler, 909 F.2d 834, 838 (5th Cir. 1990). "A constitutional right

must be implicated, and `the contours of the right must be

sufficiently clear that a reasonable official would understand that

what [he is] doing violates that right.'" Id. (footnote omitted)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Qualified immunity is a defense to an excessive use of force claim

under the Fourth Amendment. Brown, 878 F.2d at 873-74.

One of the principal purposes of the qualified immunity

doctrine is to shield officers not only from liability, but also

from defending against a lawsuit. Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, No. 91-1215, slip. op.

2933, 2936 (5th Cir. Feb. 28, 1992); see note 3, supra. And,

"questions regarding qualified immunity are resolved on the face of

the pleadings and with limited resort to pre-trial discovery."

James, 909 F.2d at 838. Accordingly, this circuit requires that §
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1983 plaintiffs meet heightened pleading requirements in cases,

such as this, in which an immunity defense can be raised.

We have consistently held that plaintiffs who

invoke § 1983 must plead specific facts that, if

proved, would overcome the individual defendant's

immunity defense; complaints containing conclusory

allegations, absent reference to material facts,

will not survive motions to dismiss. In cases

where government officials assert absolute or

qualified immunity, we have concluded that

"allowing broadly worded complaints ... which

leaves to traditional pretrial depositions,

interrogatories, and requests for admission the

development of the real facts underlying the claim,

effectively eviscerates important functions and

protections of official immunity."

Further, plaintiffs must demonstrate prior to

discovery that their allegations are sufficiently

fact-specific to remove the cloak of protection

afforded by an immunity defense.

Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988) (footnote

omitted) (citing and quoting Elliott v. Perez, 751 F.2d 1472, 1476,

1479 and n.20 (5th Cir. 1985)).

"Mere conclusory allegations and bold assertions are

insufficient to meet this heightened standard." Streetman v.

Jordan, 918 F.2d 555, 557 (5th Cir. 1990). Examples of facts

relevant to a qualified immunity defense to an excessive force

claim include "`evidence that the officer harbored ill-will toward

the citizen'[,] ... whether a warrant was employed, whether the

plaintiff resisted arrest or was armed, whether more than one

arrestee or officer was involved, whether the plaintiff was sober,

whether other dangerous or exigent circumstances existed at the

time of arrest, and on what charges plaintiff was arrested".

Brown, 878 F.2d at 874 (citation omitted).
5 Although the standard for establishing a § 1983 excessive

force claim was changed by this court's decision in Johnson v.

Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en banc), "the objective

reasonableness of an official's conduct must be measured with

reference to the law as it existed at the time of the conduct in

question." Pfannstiel v. City of Marion, 918 F.2d 1178, 1185 (5th

Cir. 1990).

6 The Supreme Court's recent decision in Hudson v. McMillian,

___ U.S. ___, 112 S. Ct. 995 (1992), overruled the "significant

injury" prong of the Huguet v. Barnett, 900 F.2d 838, 841 (5th Cir.

1990), standard applied in excessive force claims made by prisoners

under the Eighth Amendment, which had evolved from Johnson v.

Morel, a Fourth Amendment excessive force case. As discussed in

note 5, supra, Johnson v. Morel changed the standard for Fourth

Amendment excessive force claims, and, among other things,

reformulated Shillingford's "severe injury" prong to "significant

injury". 876 F.2d at 480. Jackson presents a Fourth Amendment

excessive force claim, not a claim by a prisoner arising under the

Eighth Amendment. We are not presented with, nor do we intimate

any view concerning, the question of the effect of Hudson, if any,

on the requirement of a "severe injury" under Shillingford, or a

"significant injury" under Johnson v. Morel, in the Fourth

Amendment excessive force context. Under any circumstance, Jackson

has failed to satisfy the requisite heightened pleading

requirement.

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At the time of the 1985 arrest, Shillingford v. Holmes, 634

F.2d 263 (5th Cir. Unit A 1981), stated the clearly established law

in this circuit for use of excessive force by a police officer.5

The conduct must have: (1) caused a severe injury, (2) been

grossly disproportionate to the need for action under the

circumstances, and (3) been inspired by malice rather than mere

carelessness or an unwise excess of zeal. Id. at 265.6

Accordingly, Gordon and Pachall would be "entitled to qualified

immunity if a reasonable peace officer could conclude that the

defendants did not violate [Jackson's] right to be free from

excessive force as that right was understood [at the time of the
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arrest] in 1985." Pfannstiel v. City of Marion, 918 F.2d 1178,

1185 (5th Cir. 1990).

Jackson's pro se amended complaint alleges:

Plaintiff asserts that on May 7, 1985, he was

arrested by Officers Gordon and [Pachall] in

Beaumont For Resisting Arrest and Assulting [sic]

Officer Gordon. Which are False Charges. [sic]

Whereupon Gordon and [Pachall], before and after

handcuffing plaintiff, without justification

brutally assulted [sic] him by repeatly [sic]

stricking [sic] him with nightstick and Flashlight

to his head with such force that plaintiff is still

suffering with severe headaches and ugly scares

[sic] today.

Plaintiff further asserts also that he was

diagnose [sic] as having Sculp [sic] contusions.

And as a result of plaintiff being kicked, and

stumped [sic] by Gordon and [Pachall]. He Suffered

Fractured ribi [sic] from being choked - not being

able to eat nor swallow solid foods because of

severe throat painning, [sic] which lasted a week.

Plaintiff suffered the above injuries as a result

of Gordon and [Pachall's] actions, which were in

bad faith.

Although Jackson's complaint contains some factual detail

concerning injuries allegedly suffered as a result of the arrest,

it contains virtually no facts which would allow determining

whether the officers' conduct was unreasonable in light of

Shillingford. Jackson's only contentions in this regard are that

the assault was "without justification" and in "bad faith" --

conclusory allegations insufficient to overcome the immunity

defense. E.g., Streetman, 918 F.2d at 557. In his amended

complaint, Jackson does not plead any facts regarding his own

conduct during the incident, the reasons given, if any, by the

officers for being called to the scene, or any other factors

relating to the circumstances leading to, and surrounding, his
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arrest and the other alleged actions by the officers. Especially

in light of the heightened pleading requirement, Jackson failed to

plead specific facts sufficient to overcome the officers' qualified

immunity defense.

In Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986),

this court noted that "[o]rdinarily, when a complaint does not

establish a cause of action in a case raising the issue of

immunity, a district court should provide the plaintiff an

opportunity to satisfy the heightened pleading requirements."

However, such a complaint may be dismissed even where only one

opportunity has been afforded, if circumstances demonstrate that

the plaintiff's best case has already been pleaded. Id. at 792-93.

This holds true even for pro se complaints because, despite the

latitude they generally receive, "once given adequate opportunity,

even a pro se complaint must contain specific facts supporting its

conclusions." Id. at 793.

As noted, Jackson's pro se amended complaint was filed in May

1990; the defendants' Rule 12(b)(6) motion in March 1991. Jackson

obtained counsel the following month. Although this circuit's

heightened pleading requirements were well known (and were, in any

event, brought to the forefront by the motion to dismiss), the

magistrate judge's recommendation to deny the motion came shortly

after Jackson's counsel filed his appearance. In this light,

therefore, we do not find that Jackson has had the opportunity to

plead his "best case", nor do we find that allowing him to replead
7 In their motion, the defendants also raised a limitations

defense, which the district court did not address. In remanding to

allow Jackson to replead, we express no view on the merits of that

issue.

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simply "prolong[s] the inevitable". Id. As such, we reverse and

remand with instructions to permit Jackson to plead further.7

III.

For the foregoing reasons, we REVERSE and REMAND for further

proceedings consistent with this opinion.