*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. 98-50265

Summary Calendar

_____________________

ROBERT KEIM,

Plaintiff-Appellant,

versus

CITY OF EL PASO; YSLETA INDEPENDENT

SCHOOL DISTRICT; LAURA MENA; ORLANDO DIAZ,

Defendants-Appellees..

_______________________________________________________

Appeal from the United States District Court 

for the Western District of Texas

(EP-97-CV-31-F)

_______________________________________________________

November 2, 1998

Before REAVLEY, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Robert Keim sued the City of El Paso, the Ysleta Independent School District

("YISD"), and their respective employees, police officer Orlando Diaz and security officer Laura

Mena, alleging civil rights violations under 42 U.S.C. §1983 and various tort claims under the

Texas Tort Claims Act stemming from the alleged assault and use of excessive force by

defendants Diaz and Mena to unlawfully arrest plaintiff while he was a student at Hanks High

School. Plaintiff appeals from the following portions of the district court's order dismissing

plaintiff's complaint: (1) the grant of summary judgment in favor of defendants Diaz and Mena on
2

the § 1983 claims for actions taken in their official capacities; (2) the sua sponte grant of summary

judgment to defendants Diaz and Mena on plaintiff's state claims brought under the Texas Tort

Claims Act; and (3) the finding that plaintiff's amended complaint did not allege § 1983 violations

against defendants Diaz and Mena for actions taken in their individual capacities. We affirm in

part and reverse in part. 

We agree that the district court’s grant of summary judgment for defendants Diaz and

Mena on the § 1983 claims for actions taken in their official capacities and the sua sponte grant of

summary judgment on the state tort claims was proper. As to the § 1983 individual-capacity

claims, we decide that plaintiff has sued defendants Diaz and Mena in their individual capacities

for constitutional violations under § 1983; and although the claim did not satisfy the heightened

pleading standard to overcome defendants’ qualified immunity defense, the district court’s implicit

sua sponte dismissal was improper as the plaintiff was given no notice or opportunity to satisfy

the heightened pleading standard.

Plaintiff alleges that on January 17, 1996, defendants Orlando Diaz and Laura Mena

assaulted him at Hanks High School. Diaz is a police officer for the City of El Paso and a part

time security guard at the high school. At the time of the alleged assault, Diaz was working as a

security guard but was wearing his police uniform. Mena is also a security guard at the high

school. Specifically, plaintiff alleges that as he was walking toward the attendance office, Mena

grabbed his arm and tried to confine him in the security officer’s room with the help of Diaz and

another security guard. Plaintiff admits he “resisted” this assault in some fashion, but does not

specify the extent of that resistence. Diaz then allegedly beat plaintiff about the face, chest, and

abdomen, using his fists and a hand-held police radio. Plaintiff was then handcuffed, arrested, and

detained at the Pebble Hills Police Station, where he was charged with assault.

Plaintiff filed his original complaint on February 6, 1997, against the City of El Paso and

YISD alleging constitutional violations under § 1983 and state tort claims under the Texas Tort

Claims Act. On December 15, 1997, the plaintiff filed an amended complaint adding Diaz and
3

Mena as defendants. Plaintiff’s amended complaint alleged that the arrest was groundless and

unlawful, was effected with excessive force, violated his right to free speech, and constituted cruel

and unusual punishment. On February 4, 1998, the district court, in response to separate motions

by the City of El Paso and YISD, granted summary judgment in favor of the city and the school

district as to all of plaintiff’s claims and dismissed those claims with prejudice. The district court

concluded that plaintiff had not sued Diaz and Mena in their individual capacity on the § 1983

claims. Additionally, on its own motion, the district court granted summary judgment to Diaz and

Mena on the § 1983 claims for actions taken in their official capacity, and on the state tort claims

for actions taken in both their official and individual capacities. Plaintiff then brought this appeal

challenging the propriety of the district court’s disposition of the claims against Diaz and Mena.

I. DISCUSSION

A. § 1983 Claims Against Defendants Acting in their Official Capacities

We review a grant of summary judgment de novo, applying the same standard as that used

by the trial court. See Melton v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th

Cir. 1997). Under Rule 56, 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 as to any material fact and that the moving party is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(c). On appeal, we view the pleadings and summary

judgment evidence in the light most favorable to the non-moving party. See Melton, 114 F.3d at

559. Under Rule 56, “the moving party is entitled to judgment as a matter of law if the

nonmoving party fails to make a sufficient showing of an essential element of the case to which

the nonmoving party has the burden of proof.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). “The non-moving party must set forth

specific facts to establish that there is a genuine issue for trial, but where the evidential

submissions lack probative value as to a genuine issue, summary judgment is appropriate.” Id.

The substantive law determines what facts are material. See Anderson v. Liberty Lobby, Inc., 477
4

U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A “genuine” issue of material

fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id.; see Capital Concepts Properties 85-1 v. Mutual First, Inc., 35 F.3d 170, 174 (5th

Cir. 1994).

As to plaintiff’s claims pursuant to 42 U.S.C. § 1983, the district court granted summary

judgment for the City of El Paso and Officer Diaz acting in his official capacity only. Similarly,

the district court granted summary judgment to Ysleta and its employees Diaz and Mena for

actions taken in their official capacities only. The district court held that the City of El Paso and

Ysleta were both entitled to summary judgment on plaintiff’s § 1983 claims because the summary

judgment record was devoid of any evidence that the alleged constitutional violations resulted

from the “implementation or execution of a policy or custom which was officially adopted by that

[municipality’s] officers.” Meadowbriar Home for Children, Inc., v. Gunn, 81 F.3d 521, 532 (5th

Cir. 1996). Consequently, the district court also granted summary judgment to Diaz and Mena

for actions taken in their official capacity. 

Plaintiff does not challenge the district court's grounds for granting summary judgment to

the City of El Paso or YISD and we need not disturb that aspect of the decision. Rather, plaintiff

argues that summary judgment for Diaz and Mena was improper because there was a genuine

issue of material fact as to whether these defendants waived the "defense of official immunity." 

Plaintiff seems to have confused the separate concepts of “official-capacity” and “qualified

immunity” by combining them into this so-called defense of official immunity. Plaintiff argues that

there is a genuine issue of material fact as to whether defendants Diaz and Mena waived their

defense of official immunity because (1) neither the City of El Paso nor Ysleta offered any proof

that their employees were “entitled to the defense of official immunity as a matter of law;" (2)

neither Diaz nor Mena raised the defense of "official immunity;" and (3) no defendant offered any

evidence that Diaz or Mena were entitled to qualified immunity. 
5

Plaintiff fails to recognize, however, that there is a distinction between official-capacity

suits and individual- or personal-capacity suits. See Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct.

358, 361-62, 116 L. Ed. 2d 301 (1991); Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S. Ct.

3099, 3105-06, 87 L. Ed. 2d 114 (1985). A § 1983 claim against Diaz and Mena for actions

taken in their official capacity is not the same as a suit against these defendants in their individual

capacities. See Graham, 473 U.S. at 166, 105 S. Ct. at 3105. Any claims against these

defendants for actions taken in their respective official capacities as employees of the city and the

school district are treated as claims against the governmental entity itself. See Hafer, 502 U.S. at

24, 112 S. Ct. at 361; Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996). Consequently, the

individual defense of qualified immunity does not apply to an official-capacity claim. See

Graham, 473 U.S. at 167, 105 S. Ct. at 3106. 

The district court did not, as plaintiff suggests in his brief, grant summary judgment for

defendants Diaz and Mena for actions taken in their individual capacity. The district court

expressly stated that it granted summary judgment to Diaz and Mena on the § 1983 claims only

for actions taken in their official capacities. Therefore, the qualified immunity defense applicable

to individual-capacity claims was wholly inapplicable to a claim against Diaz and Mena for actions

taken in their official capacities and plaintiff's grounds for appeal on this issue based on waiver of

qualified immunity are without merit.

B. § 1983 Claims Against Defendants Acting in their Individual Capacities

1. Standard of Review

The district court's determination that plaintiff had not stated a § 1983 claim against

defendants Diaz and Mena in their individual capacities was effectively an implicit dismissal on the

pleadings under Rule 12(b)(6), even though the district court did not expressly cast it as such. 

We review a dismissal on the pleadings under Rule 12(b)(6) de novo, accepting all well-pleaded

allegations as true. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The

district court should not dismiss a complaint “unless it appears beyond doubt that the plaintiff can
 

1

 The district court focused specifically on language in the complaint alleging that defendants

were acting within the course and scope of their employment during the incident giving rise to the

lawsuit. For example, the jurisdictional allegations of the amended complaint state:

3. That at all time pertinent to this Complaint, the defendants, CITY OF EL

PASO, TEXAS and YSLETA INDEPENDENT SCHOOL DISTRICT, were

6

prove no set of facts in support of his claim which would entitle him to relief.” Id. But, if a

complaint fails to allege a required element of plaintiff’s claim for relief, dismissal is proper. See

id. Conclusory factual allegations or legal conclusions will not survive a motion to dismiss. See

id. Further, § 1983 individual-capacity complaints must be pleaded with “factual detail and

particularity.” Schultea v. Wood, 47 F.3d 1427, 1429-30 (5th Cir. 1995). 

“The district court may dismiss an action on its own motion under Rule 12(b)(6) ‘as long

as the procedure employed is fair.’” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)

(quoting 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1357, at 301 (2d ed. 1990)). This requires the district court to give the adverse

party “both notice of the court’s intention and an opportunity to respond” before sua sponte

dismissal. See id. at 1054 n.5 (quoting Ricketts v. Midwest Nat’l Bank, 874 F.2d 1177, 1185 (7th

Cir. 1989)). Dismissal of a § 1983 claim for failure to satisfy the heightened pleading standard

necessary to overcome a qualified immunity defense is ordinarily unjustified where the plaintiff has

had only one opportunity to plead his case. See Jacquez v. Procunier, 801 F.2d 789, 792 (5th

Cir. 1986).

2. Interpretation of the Pleadings

Rule 8(f) of the Federal Rules of Civil Procedure requires that the court construe all

pleadings to do substantial justice. See FED. R. CIV. P. 8(f). This means that federal courts

should construe the pleadings in favor of the pleader. See Jenkins v. McKeithen, 395 U.S. 411,

421, 89 S. Ct. 1843, 1849, 23 L. Ed. 2d 404 (1969). Under this standard, we find that the

amended complaint alleges a § 1983 claim against defendants Diaz and Mena in their individual

capacities. Here, the district court found that much of the language in the amended complaint

was consistent with an official-capacity claim,1 but recognized that some language could be
employers of Defendant Diaz, who was at all times acting within the scope of his

employment with defendants CITY OF EL PASO, TEXAS and YSLETA

INDEPENDENT SCHOOL DISTRICT.

4. That at all times pertinent to this Complaint, the defendant, YSLETA

INDEPENDENT SCHOOL DISTRICT, was employer of Defendant Mena and

Security Officer Moreno, who were at all times acting within the scope of their

employment with defendant YSLETA INDEPENDENT SCHOOL DISTRICT.

 

2

 The district court found two instances of language in the amended complaint, alleging that

defendants acted arbitrarily, capriciously, without good faith, and in ignorance or disregard of the

settled principles of law, that suggested an intent to sue the defendants in their individual

capacities. The district court noted that these allegations were likely intended to overcome the

defendants' qualified immunity defense applicable only to individual-capacity claims. See

Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S. Ct. 3034, 3038-39, 97 L. Ed. 2d 523

(1987).

 

3

 In his Motion For Leave To File Amended Complaint, plaintiff states: “The above

amendment is sought to include an additional two Defendants in this case, Laura Mena and

Orlando Diaz. . . . Through this amended complaint Plaintiff alleges that Defendant Mena may be

individually liable to Plaintiff for the same acts alleged against her employer. . . . Through this

amended complaint Plaintiff alleges that Defendant Diaz may be individually liable to Plaintiff for

the same acts alleged against his employer.” Although plaintiff did not specifically state whether

defendants could be individually liable with respect to the § 1983 claims, the state tort claims, or

both, this language can be construed to indicate plaintiff's intent to allege § 1983 claims against

Diaz and Mena in their individual capacities.

 

4

 Although plaintiff alleges violations of the First, Fourth, Fifth and Eighth Amendments, at

most the amended complaint alleges Fourth Amendment excessive force and unlawful arrest

claims. Plaintiff’s amended complaint makes the following factual allegations: (1) Defendant

Mena grabbed plaintiff’s arm as he was walking toward the attendance office at Hanks High

School; (2) defendants Mena and Diaz, together with security officer Moreno attempted to

confine plaintiff in the security office; (3) plaintiff resisted the alleged assault; (4) defendant Diaz,

7

construed to suggest that plaintiff had intended to sue Diaz and Mena in their individual capacities

as well.2 Plaintiff's Motion For Leave To File Amended Complaint also indicates plaintiff's

intention to sue these defendants in their individual capacities.3 Construing the pleadings in favor

of the pleader, as required by Rule 8(f), plaintiff did in fact sue defendants Diaz and Mena in their

individual capacities.

We further hold that the district court’s contrary conclusion was reversible error. First,

upon de novo review, we agree with the district court that the amended complaint fails to satisfy

the heightened pleading standard for alleging a § 1983 excessive force or unlawful arrest claim

against Diaz and Mena in their individual capacities.4 See Jackson v. City of Beaumont Police
using his fists and a blunt object, beat plaintiff about the face, abdomen, and chest. Based on

these facts, plaintiff alleges that defendants’ conduct violated “his first amendment right to

freedom of expression, his fourth amendment right to be free from unlawful seizure of his person,

his fifth and fourteenth amendment rights to be free from unjustified and excessive force utilized

by defendants, and his eighth amendment right to be free from cruel and unusual punishment.” 

These factual allegations are properly analyzed under the Fourth Amendment as claims of

excessive force and unlawful arrest. See Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865,

1871, 104 L. Ed. 2d 443 (1989) (“Where, as here, the excessive force claim arises in the context

of an arrest or investigatory stop of a free citizen, it is most properly characterized as one

invoking the protections of the Fourth Amendment,” rather than implicating the cruel and unusual

punishment clause of the Eighth Amendment.); Duckett v. City of Cedar Park, 950 F.2d 272,

278-79 (5th Cir. 1992) (violation of an individual’s Fourth Amendment right to be free from

unlawful arrest and detention can serve as the basis for a civil rights claim under § 1983 where the

arrest was made without probable cause).

8

Dept., 958 F.2d 616, 621 (5th Cir. 1992) (holding that amended complaint against individual

officers alleging § 1983 excessive force claim failed to plead sufficient facts to overcome the

officers’ qualified immunity defenses, where the amended complaint did not “plead any facts

regarding [plaintiff’s] 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 arrest”); Babb v. Dorman, 33 F.3d 472, 477-78 (5th Cir. 1994) (to satisfy

heightened pleading requirement of Elliott, § 1983 unlawful arrest claim must allege sufficient

facts for a district court to discern whether a reasonable officer could have believed that probable

cause to arrest existed).

However, the district court’s implicit sua sponte dismissal for failure to state a claim was

improper because plaintiff did not receive any notice of the impending dismissal and had no

meaningful opportunity to satisfy the heightened pleading standard. As we stated in Jacquez v.

Procunier, “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” of Elliott and its progeny. 801 F.2d at 792. While it is true that plaintiff

has already had one opportunity to amend his complaint, the amended complaint is the first

pleading against these individual defendants. Moreover, plaintiff had no notice that his pleading

as to the § 1983 claims against Diaz and Mena was in any way deficient and in jeopardy of
 

5

 Section 101.106 provides: “A judgment in an action or a settlement of a claim under this

[governmental liability] chapter bars any action involving the same subject matter by the claimant

against the employee of the governmental unit whose act or omission gave rise to the claim.” 

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West 1997).

9

dismissal prior to the district court’s order dismissing the entire complaint. Thus, it cannot be said

that plaintiff has had a meaningful opportunity to respond and attempt to correct the deficiency. 

Cf. Procunier, 801 F.2d at 792-93 (dismissal for failure to satisfy heightened pleading standard

was warranted without opportunity to amend where plaintiff filed an extensive response to

defendant’s motion to dismiss specifically addressing the insufficiency of the complaint). Where

as here, the plaintiff has not had an adequate opportunity to plead his “best case” against these

individual defendants, he should be allowed a chance to cure the defect to satisfy the heightened

pleading requirements. See Jackson, 958 F.2d at 621-22. The district court has several tools at

its disposal to accomplish this goal, such as a request for a more definite statement, the use of

interrogatories, granting plaintiff leave to file a second amended complaint, or allowing plaintiff to

respond to a motion to dismiss by the individual defendants.

C. Sua Sponte Grant of Summary Judgment on State Claims

After concluding that the City of El Paso and YISD were entitled to summary judgment

on all of plaintiff’s claims brought under the Texas Tort Claims Act (“TTCA”), the district court,

on its own motion, also granted summary judgment in favor of defendants Diaz and Mena in their

official and individual capacities because section 101.106 of the TTCA bars any action against

employees of a governmental unit if there is a TTCA judgment for or against the governmental

unit that concerns the same subject matter as the claim against the individual employees.5 See

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West 1997); Thomas v. Oldham, 895 S.W.2d

352, 355 (Tex. 1995); Gonzales v. El Paso Hosp. Dist., 940 S.W.2d 793, 795 (Tex. App.—El

Paso 1997, n.w.h.).

The district court certainly has the authority to grant summary judgment sua sponte. See

Celotex Corp., 477 U.S. at 326, 106 S. Ct. at 2554; NL Indus., Inc. v. GHR Energy Corp., 940
10

F.2d 957, 965 (5th Cir. 1991). But, sua sponte summary judgment should not be granted unless

the district court provides ten days notice to the adverse party as required by rule 56(c) of the

Federal Rules of Civil Procedure. See id.; FED. R. CIV. P. 56(c). Here, the district court did not

provide any notice to plaintiff prior to granting summary judgment in favor of Mena and Diaz on

the state tort claims.

Plaintiff argues that the district court’s failure to give ten days notice of its intent to grant

sua sponte summary judgment constituted harmful error. Although the notice requirement for sua

sponte summary judgment is strictly enforced in this circuit, the failure to provide such notice is

subject to harmless error review. See Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994). As plaintiff acknowledges in his brief, 

failure to provide proper notice is harmless error “if the nonmovant has no additional evidence or

if all of the nonmovant’s additional evidence is reviewed by the appellate court and none of the

evidence presents a genuine issue of material fact.” Id. (emphasis omitted) (quoting Resolution

Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403 n.7 (5th Cir. 1993)). 

Even where a nonmovant has not admitted that he has no additional evidence, an appellate court

may find harmless error where the nonmovant fails to offer any additional evidence on appeal. 

See id.

Here, plaintiff has offered no additional evidence on appeal that would raise a genuine

issue of material fact regarding the defendants’ individual liability for plaintiff’s claims brought

under the TTCA following entry of judgment on those claims for the city and school district. Nor

has plaintiff identified what that genuine issue of material fact might be to preclude summary

judgment for defendants based on section 101.106. Consequently, the district court’s failure to

give plaintiff ten days notice of its intent to grant sua sponte summary judgment to defendants

Mena and Diaz on the TTCA claims was harmless error. See Leatherman, 28 F.3d at 1398-99

(finding harmless error where plaintiff failed to present any additional evidence on appeal and

where no additional evidence was apparent from the record).
11

II. CONCLUSION

We affirm the summary judgment on the § 1983 claims against the city and school district

in all respects. We also affirm the summary judgment for defendants Diaz and Mena on plaintiff’s

claims under the Texas Tort Claims Act. Finally, we reverse the portion of the district court’s

judgment on the § 1983 claims against Diaz and Mena in their individual capacities. The case is

remanded for further proceedings on the latter claim.

Affirmed in part and reversed in part. Remanded.