UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20662
Summary Calendar
DONALD WAYNE CYIARK,
Plaintiff-Appellee,
versus
CITY OF HOUSTON; CHARLES E.
KENNEDY; WAYNE HANKINS,
Defendants,
and
E.T. BICE,
Defendant-Appellant.
ASSOCIATED WITH
___________________________________
No. 95-20732
Summary Calendar
____________________________________
DONALD WAYNE CYIARK,
Plaintiff-Appellee
versus
THE CITY OF HOUSTON, ET AL.,
Defendants,
and
WAYNE HANKINS,
Defendant-Appellant.
Appeals from the United States District Court
For the Southern District of Texas
(CA-H-94-3192 & H-94-CV-3192)
March 6, 1996
Before POLITZ, Chief Judge, GARWOOD and STEWART, Circuit Judges.
PER CURIAM:*
Donald Wayne Cyiark, a stable manager with the Houston Police Department,
alleging that he was subjected to physical and emotional mistreatment by Houston police
officers because of his race, filed a 42 U.S.C. § 1983 action against these officers and the
City of Houston. Defendants Bice, Hankins, and the City of Houston filed motions to
dismiss and/or for summary judgment based upon qualified immunity. The district court
denied these motions, assigning no reasons but citing the recent Supreme Court decision in
Johnson v. Jones.1 Defendants Bice and Hankins timely appeal. They also move for
expedited consideration of their appeal. Today’s resolution moots that motion and it is
therefore denied.
We do not have appellate jurisdiction over the instant district court ruling on the
defendants’ qualified immunity defense.2 Our review of the record, considering the trial
court’s reference to Johnson v. Jones, persuades that the district court found genuine issues
of material fact yet to be resolved. In that setting summary judgment is inappropriate.
We do have appellate jurisdiction over the defendants’ claim that the allegations in
Cyiark’s amended complaint are, as a matter of law, insufficient to defeat their defense of
qualified immunity.3 This challenge requires that we examine Cyiark’s factual allegations
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in Local Rule
47.5.4.
1
_____ U.S. _____, 115 S.Ct. 2151 (1995).
2
Johnson; Jackson v. City of Atlanta, Tx., 73 F.3d 60 (5th Cir. 1996).
3
Johnson; Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc). The district
court’s order, insofar as we construe it to find contested issues of fact, implicitly rejects the
defendants’ claim that Cyiark’s allegations are legally insufficient.
2
“to determine whether they would be sufficient, if proven, to establish a violation of clearly
established law.”4 Our review of the complaint is de novo.5
Defendants contend that Cyiark’s allegations are not sufficiently particularized and
therefore fail the “heightened pleading requirement” they assert is applicable in cases
involving claims of qualified immunity. The amended complaint, however, alleges numerous
instances of unprovoked and racially-motivated threats, harassment, and injury at the hands
of Houston police officers. This suffices to state a cause of action under section 1983
sufficient to overcome defendants’ claim of qualified immunity at this stage of the litigation.
As recently explained, the purported “heightened pleading requirement” is based on the trial
court’s discretionary authority to order a reply to a defendant’s proffer of a qualified
immunity defense.6 In the case at bar the district court, obviously satisfied with the
complaint as written, opted not to demand more detailed pleadings from Cyiark. In this we
perceive the district court did not err.
DISMISSED in part, AFFIRMED in part, and REMANDED.
4
Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995) (citing Lampkin v. City of
Nacogdoches, 7 F.3d 430 (5th Cir. 1993), cert. denied, 114 S.Ct. 1400 (1994). See also
Johnson (citing Mitchell v. Forsyth, 472 U.S. 511 (1985)).
5
Jackson v. City of Beaumont Police Dept., 958 F.2d 616 (5th Cir. 1992).
6
Schultea; Fed.R.Civ.P. 7(a).
3