Truvia v. Julien

United States Court of Appeals

Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FILED

FOR THE FIFTH CIRCUIT June 12, 2006

_____________________ Charles R. Fulbruge III

Clerk

No. 05-30451

____________________

EARL TRUVIA,

Plaintiff-Appellant,

v.

HENRY P. JULIEN JR., Etc.; ET AL.,

Defendants,

KURT SINS, Individually and in his capacity as Assistant District

Attorney,

Defendant-Appellee,

__________________

GREGORY BRIGHT,

Plaintiff-Appellant,

V.

HENRY P. JULIEN JR., Etc.; ET AL.,

Defendants,

KURT SINS, Individually and in his capacity as Assistant District

Attorney,

Defendant-Appellee

__________________

Appeals from the United States District Court

for the Eastern District of Louisiana

2:04-CV-682

__________________

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Before GARWOOD, DAVIS and GARZA, Circuit Judges.

PER CURIAM:*

Earl Truvia and Gregory Bright were tried and convicted in

1976 for a murder committed in New Orleans. In the 1990s, Truvia

and Bright were able to obtain the State’s files and establish

that the state had withheld Brady evidence. Their convictions

were eventually reversed. Truvia and Bright subsequently brought

suit against the City of New Orleans, the New Orleans Police

Department, the District Attorney’s Office, and several

individuals in their official and individual capacities,

asserting violations of 42 U.S.C. § 1983 and various Louisiana

causes of action related to the failure to disclose Brady

evidence. Included among the individuals named as defendants was

Kurt Sins, who at the time of Appellants’ prosecution was an

Assistant District Attorney under District Attorney Harry

Connick.

Sins moved to dismiss Appellants claims against him, arguing

that he enjoyed prosecutorial immunity from suit in his

individual capacity, that he was not a proper defendant to be

sued in his official capacity, and that in any event, the claims

against him did not meet the requisite heightened pleading

*

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opinion should not be published and is not precedent except under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.

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standard. The district court agreed and dismissed the claims.

For the reasons stated below, we now affirm.1

1. Appellants’ Amended Complaint first alleges as a basis

for their individual capacity claims against Sins that he

participated directly in the suppression of Brady evidence in the

course of prosecuting the case against them. This court,

however, has specifically held that the suppression of

exculpatory evidence—as alleged by Appellants—is shielded by

absolute immunity. See Cousin v. Small, 325 F.3d 627, 635 & n.

11 (5th Cir. 2003). The claims asserted against Sins in his

individual capacity by Appellants that stem from his direct

participation in the suppression of Brady evidence are barred by

absolute immunity and were properly dismissed by the district

court.

2. Appellants’ Amended Complaint next alleges as a basis

for their individual capacity claims against Sins that he failed

to properly train and/or supervise those Assistant District

Attorney’s working beneath him. Appellants must satisfy a

heightened pleading standard to state a § 1983 claim against Sins

1

Sins also argued, and the district court found, that any claims

against Sins accruing prior to March 9, 2003, are barred by

prescription. Although the district court’s order dismisses any

such claims, it does not specify which claims might fall into that

category. Because we conclude that Appellants’ claims against Sins

fail for the reasons discussed, we need not address the issue of

prescription.

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in his individual capacity by alleging “specific conduct and

actions giving rise to constitutional violations.” See Oliver v.

Scott, 276 F.3d 736, 741 (5th Cir. 2003). Moreover, § 1983 does

not create supervisory liability based on respondeat superior or

any other theory of vicarious liability. See id. at 742 & n.6;

Alton v. Texas A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999)

(“Only the direct acts or omissions of government officials, not

the acts of subordinates, will give rise to individual liability

under § 1983.”). Instead, an individual official may be liable

only for participation in the implementation of a policy that is

“itself ... a repudiation of constitutional rights” and “the

moving force of the constitutional violation.” Oliver, 276 F.3d

at 742. More specifically, in the context of a claim of failure

to train and/or supervise, Appellants must demonstrate that “1)

[Sins] failed to train or supervise the [officials] involved; 2)

there is a causal connection between the alleged failure to

supervise or train and the alleged violation of the plaintiff's

rights; and 3) the failure to train or supervise constituted

deliberate indifference to the plaintiff's constitutional

rights.” Cousin, 325 F.3d at 637; Thompson v. Upshur County, 245

F.3d 447, 459 (5th Cir. 2001). “[T]he misconduct of the

subordinate must be affirmatively linked to the action or

inaction of the supervisor.” Southard v. Texas Bd. of Criminal

Justice, 114 F.3d 539, 550 (5th Cir. 1997).

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Appellants’ Amended Complaint fails to meet any of these

requirements. Instead, Truvia and Bright allege in the most

conclusory terms that Sins failed to supervise and/or train other

ADAs in the DA’s office. Appellants fail to identify these other

ADAs, or make any connection whatsoever between Sins’ alleged

failure to supervise and/or train them and the suppression of

Brady evidence in Appellants’ case. This failure is particularly

troubling in light of Appellants’ allegations that Sins himself

participated directly in the suppression of evidence. There is

no reason on the face of the complaint to infer that any of the

unidentified ADAs Sins allegedly supervised were involved at all

in Appellants’ prosecution. The claims asserted against Sins in

his individual capacity that stem from his alleged failure to

supervise and/or train his subordinates therefore fail to meet

the heightened pleading standard and were properly dismissed.2

3. Appellants also allege that Sins participated in a

conspiracy to block their release or parole by continuing to

suppress evidence following their prosecution and conviction.

The district court dismissed these claims for failure to meet the

heightened pleading requirement. Appellants implicitly concede

that their allegations fail to meet that requirement, but argue

2

Because we conclude that Appellants’ claims fail to meet the

requisite heightened pleading standard, we need not address the

question of whether absolute prosecutorial immunity is applicable

to a claim alleging failure to supervise and/or train where the

underlying violation would be covered by such immunity.

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on appeal that they should have been given the opportunity to

file a reply under Rule 7(a). Appellants are incorrect.

The 5th Circuit set out its approach to Rule 7(a) replies in

Schultea v. Wood:

When a public official pleads the affirmative defense

of qualified immunity in his answer, the district court

may, on the official's motion or on its own, require

the plaintiff to reply to that defense in detail. By

definition, the reply must be tailored to the assertion

of qualified immunity and fairly engage its

allegations. A defendant has an incentive to plead his

defense with some particularity because it has the

practical effect of requiring particularity in the

reply. The Federal Rules of Civil Procedure permit the

use of Rule 7 in this manner.

47 F.3d 1427, 1433 (5th Cir. 1995). The purpose of the device is

to require the plaintiff to satisfy the heightened pleading

standards applicable to claims implicating immunity defenses.

Although a plaintiff need not anticipate such a defense, id. at

1430, the district court in its discretion may require the

plaintiff to submit a Rule 7 reply in response to an immunity

defense before embarking on potentially costly discovery and

litigation. By requiring a Rule 7(a) reply, the district court

can be assured that plaintiff has adequately alleged facts in

support of claims sufficient to pass the pleading stage.

In this case, by contrast, the immunity defense was

presented not in an answer to Appellants’ Amended Complaint, but

instead in a Rule 12(b)(6) motion to dismiss. In such a context

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the Appellants were afforded ample opportunity to respond, and

not only submitted complete briefing on the immunity issue, but

after the motion was granted in favor of Appellee, filed a

motion to reconsider with concomitant briefing. Requiring a Rule

7(a) reply in addition to the completed briefing would be

redundant. The district court’s failure to require a Rule 7(a)

reply is reviewed for abuse of discretion, Reyes v. Sazan, 168

F.3d 158, 161 (5th Cir. 1999), and failing to require a 7(a)

reply under the circumstances presented here was not such an

abuse.

4. Appellants also assert official capacity claims against

Sins. Appellants argue that an ADA can be a “permitted

policymaker” and subject to an official capacity claim. “A

court’s task is to identify those officials or governmental

bodies who speak with final policymaking authority for the local

government actor concerning the action alleged to have caused the

particular constitutional or statutory violation.” Burgess v.

Parish of St. Tammamy, 187 F.3d 452, 468 (5th Cir. 1999)

(emphasis added). In Burgess, this court concluded that “a

district attorney is the independent and final official

policymaker for all of the administrative and prosecutorial

functions of his office.” Id. at 469. An assistant district

attorney, therefore, is not a policymaker and not the proper

defendant for an official capacity claim against the District

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Attorney’s Office. We therefore affirm the dismissal of the

official capacity claims against Sins on that basis.

AFFIRMED.

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