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
*
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this opinion should not be published and is not precedent except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.
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
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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.
1
Borroto v. Wilson, et al, 988 F.2d 1213 (5th Cir.
1993)(unpublished opinion)(hereinafter Borroto I).
3
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
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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.
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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
2
"...every pleading subsequent to the original complaint ...
shall be served upon each of the parties.” (emphasis added).
3
See, e.g., George v. United States Dept. of Labor, O.S.H.A.,
788 F.2d 1115, 1116 (5th Cir. 1986).
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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
4
Wright & Miller, Federal Practice and Procedure §1146, at
424-425 (1987).
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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.
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