Earl Truvia v. HENRY P. JULIEN JR., Etc.;

1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
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
__________________
United States Court of Appeals
Fifth Circuit
F I L E D
June 12, 2006
Charles R. Fulbruge III
Clerk

-- 1 of 8 --

* 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opinion should not be published and is not precedent except under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.
2
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

-- 2 of 8 --

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.
3
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

-- 3 of 8 --

4
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).

-- 4 of 8 --

2Because 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.
5
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

-- 5 of 8 --

6
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

-- 6 of 8 --

7
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

-- 7 of 8 --

8
Attorney’s Office. We therefore affirm the dismissal of the
official capacity claims against Sins on that basis.
AFFIRMED.

-- 8 of 8 --