Unknown

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                            No. 97-31264



RAMIRO REYES; FLORENTINO MARTINEZ; ELIZABETH MARTINEZ
                                        Plaintiffs-Appellees,

v.

CARL SAZAN, ETC.; ET AL
                                             Defendants

CARL SAZAN, Trooper, Louisiana State Police; WILLIAM WHITTINGTON,
Colonel, Louisiana State Police; L M RYAN, Captain, Louisiana
State Police; KEVIN ARMSTRONG, Captain, Louisiana State Police
                                        Defendants-Appellants



          Appeal from the United States District Court
              for the Eastern District of Louisiana


                          February 17, 1999


Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     This lawsuit alleges that various officials violated the

plaintiffs’   constitutional   rights   by    conspiring   to   enforce

selectively the traffic laws and damaging a pickup truck in a

fruitless search for contraband.      We conclude the district court

abused its discretion by not requiring a Rule 7 reply to the

defense of qualified immunity.   We also conclude that the Eleventh

Amendment is not a bar to the state law claims.

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     As we must, we assume the plaintiffs’ story:                 Florentino and

Elizabeth    Martinez,         brother    and    sister,   were   driving     with

Elizabeth’s minor daughter in Ramiro Reyes’s pickup truck on

Interstate    12    in   St.    Tammany    Parish,   Louisiana,    en   route    to

Alabama.    The truck had Texas plates.

     When they passed a marked Louisiana State Police vehicle, Carl

Sazan, a Louisiana State Trooper, pulled them over.                     They were

driving under the speed limit.            At Sazan’s request, Florentino got

out of the truck, producing his driver’s license and proof of

registration.      Sazan ordered Florentino to remain standing in the

cold rain while he returned to his vehicle, presumably to verify

that the truck was not stolen.            Sazan issued a warning citation for

following too closely, although there had been no vehicle ahead.

Florentino denied that there were any drugs or weapons in the truck

but signed a consent-to-search form at Sazan’s request.

     Sazan then ordered Elizabeth to leave the pickup truck and

stand in the rain with her child while he searched it.                      Sazan

refused to allow Elizabeth to retrieve a jacket for her daughter.

Another trooper, a John Doe defendant, subsequently arrived with a

police dog.        The dog searched inside and under the truck, but

barked only when Doe pulled the dog’s chain.

     Although no drugs were found, Sazan ordered the Martinezes to

follow him to Troop L Headquarters in Mandeville, Louisiana, where

Kevin Armstrong was the commanding officer.                   Sazan, Doe, and

another    unidentified        officer,    now   Richard   Roe,    searched     the

vehicle.


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     It is asserted that the search at the station exceeded the

permission given the officer; that it was conducted negligently and

maliciously; and that the police removed the gas tank and placed

the truck on a lift that slammed it to the ground.              The search

lasted for three to four hours.            It cost $2,209.20 to repair the

damage done to the truck by the search.

     During the search at the station house, Florentino, Elizabeth,

and the minor were forced to stand under an outside porch cover

exposed to the weather.          Roe left the shop during the search,

stating that drugs had been found and that the adults would be put

in jail, and the child placed in foster care.         In fact, no drugs or

other contraband were found, and no criminal charges were ever

filed.

     The plaintiffs sued Sazan, the arresting officer, and the

supervisory officers, Whittington, Ryan, and Armstrong, under §§

1983 and 1985(3) for denial of their constitutional rights.            They

also asserted claims under the Louisiana Constitution and the

Louisiana Civil Code.      The Martinezes claimed general and special

damages    of   $55,000   each   for   their   discomfort,   embarrassment,

humiliation, loss of dignity, and loss of privacy.            Reyes sought

$2,209.20 for the damage to his truck, plus $5,000 in punitive

damages.

     Defendants moved to dismiss, alleging that they could not be

held liable under § 1983 for monetary damages and that Reyes had no

claim under § 1983 or § 1985(3) because he was not in the car.           In

addition, Armstrong and codefendants L.M. Ryan and Colonel William


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Whittington, police officials assertedly members of the conspiracy,

maintained that the plaintiffs cannot show that they were liable in

a supervisory capacity and failed to overcome their defense of

qualified immunity.       Sazan specifically argued that the Martinezes

failed    to    allege   facts   sufficient       to     defeat   the   defense   of

qualified immunity.        All defendants meanwhile argued that the §

1985(3) claim failed to state a claim and was insufficient to

overcome the defense of qualified immunity.                  Finally, defendants

pressed both the bar of the Eleventh Amendment to the state law

claims, and its contention that the state claims did not meet the

jurisdictional amount requirements of diversity jurisdiction.

     The plaintiffs replied that their suits were against the

defendants in their individual capacities and that these defendants

were not entitled to qualified immunity.                    They explained that

Whittington      had   responsibility       for   guiding    the    discretion    of

officers and for disciplining them, that Ryan and Armstrong had

similar authority over Sazan, and that all three conspired with

Sazan to enforce traffic laws selectively against Hispanics and

out-of-state residents.

     While the district court agreed that Reyes could not maintain

his claims under §§ 1983 and 1985(3), it denied the motion to

dismiss    in    other   respects.       It       also    decided   that   it     had

supplemental jurisdiction over plaintiffs’ state law claims.                      The

supervisory defendants, Whittington, Ryan, and Armstrong, here

challenge only the denial of their motion to dismiss and the denial

of the Eleventh Amendment defense to the state law claims.


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                                        II

      The complaint alleges specific facts detailing plaintiffs’

personal experience with Sazan.              It offers no similar detail for

the   claim    that      defendants    Whittington,     Ryan,     and    Armstrong

conspired to deny them and other Hispanic drivers their civil

rights.     The district court concluded that the plaintiffs had

“plead with particularity that this was part of a policy to stop

and search those of Hispanic origin and/or that the supervisors

failed to adequately train and/or monitor the Troopers.” The court

did not dismiss the suit, suggesting that it would grant summary

judgment to the supervisors absent evidence raising a genuine issue

of material fact.         As we will explain, we do not agree that the

claim   was    plead      with   particularity      against     the     supervisory

officers,     and   we    conclude    that   the   district   court      moved   too

quickly.

      Faced with sparse details of claimed wrongdoing by officials,

trial courts ought routinely require plaintiffs to file a reply

under Federal Rule of Civil Procedure 7(a) to qualified immunity

defenses.     See Schultea v. Wood, 47 F.3d 1427, 1430, 1432 (5th Cir.

1995) (en banc).          The Schultea court held that “the [district]

court may, in its discretion, insist that a plaintiff file a reply

tailored to an answer pleading the defense of qualified immunity.”

Id. at 1433-44.       The district court need not allow any discovery at

this point unless the “plaintiff has supported his claim with

sufficient precision and factual specificity to raise a genuine




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issue as to the illegality of defendant’s conduct at the time of

the alleged acts.” Id. at 1434.

     Plaintiffs did not allege their claims against the supervisory

defendants with particularity. Their pleading was little more than

a bare conclusion, and the district court erred in finding the

complaint to be sufficient.     Rather, it should first have ordered

a reply, and if the required detail was not forthcoming, dismiss

the complaint.    The Schultea rule governing the Rule 7(a) reply is

an instantiation of the more general principle that “heightened

pleading” is needed in qualified immunity cases.           See id. at 1430.

Heightened   pleading    requires       allegations   of    fact   focusing

specifically on the conduct of the individual who caused the

plaintiffs’ injury.      See Wicks v. Mississippi State Employment

Servs., 41 F.3d 991, 995 (5th Cir. 1995).

     The district court abused its discretion in failing to require

a Rule 7 reply.    As the Schultea court made clear, “Vindicating the

immunity doctrine will ordinarily require such a reply, and a

district court’s discretion not to do so is narrow indeed when

greater detail might assist.” Id. at 1434.

     The Supreme Court since Schultea has attempted to clarify the

the jurisdiction of the courts of appeal to review a denial of

qualified immunity.     At present, the rule of jurisdiction comes to

this: Legal conclusions are immediately appealable, but not the

sufficiency of the evidence to support the denial.          See Behrens v.

Pelletier, 516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S.

304, 313 (1995).    The appellate court can consider the materiality


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of disputed issues of fact, but not contentions that there are

factual disputes.         See Colston v. Barnhart, 146 F.3d 282, 284 (5th

Cir. 1998).

       The     Supreme        Court’s     refinement       of     qualified     immunity

jurisdiction has only made the more important Schultea’s emphasis

upon    the    reply     as    a   tool   of       the   trial   court   insisting     on

particularity in pleading.              Indeed, the Court’s vigorous adherence

to the distinction between fact and law--or genuine issues and

material issues--underscores the strength of the Schultea approach.

Whether the complaint is insufficiently particular, and thus a

reply to the defense of qualified immunity is needed, is a question

of law.        Similarly, we can examine afresh whether a reply is

“tailored      to   the   assertion       of       qualified     immunity    and   fairly

engage[s] its allegations,” Schultea, 47 F.3d at 1433, a look that

does not require reviewing the record to determine if the reply’s

factual assertions are true.

                                            III

       We also have jurisdiction over the appeal of the denial of

Eleventh Amendment immunity on the state law claims.                          See Puerto

Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139

(1993).       Such appeals are within the collateral order doctrine’s

ambit     because      the      denial     of       immunity     “‘[1]      conclusively

determine[s] the disputed question, [2] resolve[s] an important

issue completely separate from the merits of the action, and [3]

[is] effectively unreviewable on appeal from a final judgment.’"

Id. at 144 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468


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(1978)) (alterations adding numbers in original). “[T]he value to

the States of their Eleventh Amendment immunity, like the benefit

conferred by qualified immunity to individual officials, is for the

most part lost as litigation proceeds past motion practice.” Id. at

145.1

        The defendants’ Eleventh Amendment defense to the state law

claims arises from the Supreme Court’s decision in Pennsylvania

State School and Hospital v. Halderman, 465 U.S. 89 (1984).     The

Court held that the fiction of Ex parte Young, 209 U.S. 123 (1908),

will not save efforts to enforce prospectively state law against

state officials and that the Eleventh Amendment is a bar, if it is

otherwise applicable.    But the Eleventh Amendment is not otherwise

applicable here because the officers are sued personally, and

plaintiffs have no need of the Young fiction.       See id. at 101

(“‘The general rule is that relief sought nominally against an

officer is in fact against the sovereign if the decree would

operate against the latter.’") (quoting Hawaii v. Gordon, 373 U.S.

57, 58 (1963) (per curiam)); see also Hafer v. Melo, 502 U.S. 21

(1991).

        1
      In Woods v. Smith, 60 F.3d 1161, 1167 (5th Cir. 1996), the
court concluded that it lacked jurisdiction to consider an
interlocutory Eleventh Amendment defense, but only because it found
“no such denial [of Eleventh Amendment immunity] here in the trial
court's refusal to dismiss the state law claims.” While the court
did not elaborate on why it found no such denial, its language
implies that the trial court had not considered the Eleventh
Amendment issue. In this case, by contrast, the district court
expressly considered and rejected the Eleventh Amendment defense,
and this court thus has jurisdiction over the interlocutory appeal
on Eleventh Amendment grounds.    If the Eleventh Amendment does
apply, we would need to reverse rather than remand for further
pleading.

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        Our question then is whether a claim against these defendants

individually will nonetheless run to the state treasury under

Louisiana law.      We treated the issue in Hughes v. Savell, 902 F.2d

376 (5th Cir. 1990).2       In Hughes, the court reversed an award of

damages against a Louisiana prison guard on a state law negligence

claim,    finding    that   claim   barred     by    the   Eleventh     Amendment.

Although the plaintiff in Hughes purported to sue the guard in his

individual capacity, the court recited that the Amendment bars

suits    against    state   officials       when    “the   state   is   the   real,

substantial party in interest.” Id. at 377 (quoting Ford Motor Co.

v. Department of Treasury, 323 U.S. 459, 464 (1945)).                   Construing

Louisiana law, the court found that a prison guard could not be

individually liable for such an attack, and that state prison

employee negligence would be imputed to the state when liability

was assigned.       See id. at 379.

        Applying Hughes, the question is whether the state officials

here could be personally liable for the state law violations.                    The

district court rejected the argument from Hughes on the basis that

the “plaintiffs here assert no such claim,” i.e. did not maintain

that personal liability would be imputed to the employer.                     In the

motion to dismiss, defendants requested only that the claims be

dismissed “insofar as they are sued in their official capacities.”

They thus could be seen as not asserting that the state law

    2
     The defendants do not challenge the federal claim on Eleventh
Amendment grounds. See Flowers v. Phelps, 964 F.2d 400, 401 (5th
Cir. 1992) (citing Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974))
(finding no Eleventh Amendment bar to a § 1983 claim); Hafer, 502
U.S. at 29-31.

                                        9
indemnifies them from personal liability.     We read the defendants’

reference to “official capacities” broadly as including suits

against the defendants personally but indemnified by the state.

       We find no bar.     The Louisiana provisions sued upon are

statutes of general applicability, not provisions specifically

concerning conduct of government officers.        See, e.g., La. Civ.

Code art. 2315 (“Every act whatever of man that causes damage to

another obliges him by whose fault it happened to repair it.”).

While Louisiana law offers indemnification of state employees in

some   circumstances,    such   indemnification   extends   only   to   an

employee acting “within the scope of his office, employment,

contract, or assignment and such damages did not result from the

intentional wrongful act or gross negligence of the official,

officer, or employee.” La. Rev. Stat. § 13:5108.2(B).

       Because there is at least a fact issue concerning whether the

officers here acted intentionally or with gross negligence, the

officials might not receive indemnification.        Moreover, while we

need not consider the issue here, other circuits have held that a

state’s decision to indemnify an officer does not turn the suit

into one in the officer’s official capacity.          See Blaylock v.

Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988); Wilson v. Beebe,

770 F.2d 878 (7th Cir. 1985) (en banc).

                                   IV

       We VACATE the district court’s denial of qualified immunity to

Whittington, Ryan, and Armstrong, and REMAND with instructions to

require that the plaintiffs file a reply to the defense.      We AFFIRM


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the district court’s ruling that the Eleventh Amendment affords no

defense to the state law claims asserted against the officers

personally.

     VACATED and REMANDED in part; AFFIRMED in part.




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