Fox v. Wardy

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-50970
Summary Calendar
JOHN FOX,
Plaintiff-Appellant,
versus
JOE WARDY, Mayor; SUSAN AUSTIN; JOSE A. LOZANO;
JOHN F. COOK; DANIEL S. POWER; PAUL J. ESCOBAR;
VIVIAN ROJAS; ANTHONY W. COBOS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CV-18
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant John Fox, pro se, appeals the district
court’s dismissal of his complaint, pursuant to FED. R. CIV. P.
12(b)(6), for failure to state a claim, in part on qualified
immunity grounds. Fox argues that the district court erred in
dismissing his complaint without giving him an opportunity to
respond to the motion to dismiss. Dismissal after allowing the
plaintiff only one opportunity to state his case is ordinarily
unjustified. Jones v. Greninger, 188 F.3d 322, 326-27 (5th Cir.
*
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this opinion should not be published and is not precedent except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.
1999); Schultea v. Wood, 27 F.3d 1112, 1118 (5th Cir. 1994);
Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). Such a
dismissal is appropriate only when the plaintiff has pleaded his
best case, so that allowing him to amend his complaint or elaborate
on his claims would still not produce a viable 42 U.S.C. § 1983
claim. As our review reflects that Fox’s complaint alleged his
best case, it is not necessary to remand for a further factual
statement. See Schultea, 27 F.3d at 1118.
We review the district court’s dismissal for failure to state
a claim de novo, taking the factual allegations of the complaint as
true, and resolving any doubts regarding the sufficiency of the
claim in the plaintiff’s favor. Jones v. Alcoa, Inc., 339 F.3d
359, 362 (5th Cir. 2003). The district court did not err in
dismissing Fox’s claims against the defendants in their official
capacities, because Fox did not allege an official policy, practice
or custom that was linked to a constitutional violation. See
Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir. 2002).
Neither did the district court err in dismissing Fox’s claims
against the defendants in their individual capacities on grounds of
qualified immunity, because Fox’s allegations, although couched in
terms of due process and equal protection, did not allege the
violation of a constitutional right. See Siegert v. Gilley, 500
U.S. 226, 231-33 (1991).
The judgment of the district court is
AFFIRMED.
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