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 2001-03

Vinson v. Vinson ( 2001 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60328
Summary Calendar
HARRY VINSON,
Plaintiff-Appellant,
versus
ELIZABETH VINSON; ET AL.,
Defendants,
ELIZABETH VINSON; CITY OF OLIVE BRANCH; SAMUEL P. RIKARD; GEORGE
COLLINS; AUBREY COLEMAN; GEORGE HARRISON; RICHARD E. DLUGACH;
STEVE DAWSON; OLIVE BRANCH POLICE DEPARTMENT; JIM HARRIS; CLEATUS
OLIVER; SCOTT GENTRY; LES SHUMAKE; BILLY W. BALDWIN; WALLACE
ANDERSON; MISSISSIPPI MUNICIPAL LIABILITY PLAN; JOHN DOES;
JENNIFER CARSON, Municipal Court Clerk,
Defendants-Appellees.
_________________________________________________________________
Consolidated with
_________________
No. 00-60398
Summary Calendar
_________________
HARRY VINSON,
Plaintiff-Appellant,
versus
ELIZABETH VINSON; ET AL.,
Defendants,
CITY OF OLIVE BRANCH; SAMUEL P. RIKARD; GEORGE COLLINS;
AUBREY COLEMAN; GEORGE HARRISON; RICHARD E. DLUGACH; STEVE
DAWSON; OLIVE BRANCH POLICE DEPARTMENT; JIM HARRIS; CLEATUS
OLIVER; SCOTT GENTRY; LES SHUMAKE; BILLY W. BALDWIN; WALLACE
ANDERSON; JUDY HERRINGTON; MISSISSIPPI MUNICIPAL LIABILITY
PLAN; JENNIFER CARSON, Municipal Court Clerk,
Defendants-Appellees.
No. 00-60328 c/w No. 00-60398
-2-
--------------------
Appeals from the United States District Court
for the Northern District of Mississippi
USDC No. 3:99-CV-54-B-A
--------------------
March 20, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellant Harry Vinson challenges the district court’s
dismissal of his
    42 U.S.C. § 1983
     complaint for failure to state
a claim.   The appellant argues that the district court erred
because his complaint did state a claim for which relief could be
granted.
With respect to the individual defendant, Elizabeth Vinson,
the appellant’s complaint does not contain any specific facts
that would support his allegation that she acted in concert with
the remaining defendants to deny his constitutional rights.
Accordingly, the appellant’s
    42 U.S.C. § 1983
     claim against
Elizabeth Vinson was properly dismissed for failure to state a
claim.   See Tuchman v. DSC Communications Corp.,
    14 F.3d 1061
    ,
1067 (5th Cir. 1994).
In his complaint, the appellant sued each of the remaining
defendants in their official capacities.    Officials acting in
their official capacities are not “persons” within the meaning of
    42 U.S.C. § 1983
    .     Will v. Michigan Dep’t of State Police,
    491 U.S. 58
    , 71 (1989).    Therefore, the appellant’s
    42 U.S.C. § 1983
    *
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.
No. 00-60328 c/w No. 00-60398
-3-
claims against these remaining defendants were properly dismissed
for failure to state a claim.     See Tuchman,
    14 F.3d at 1067
    .
The appellant also challenges the district court’s sua
sponte imposition of sanctions under Rule 11(c)(1)(B) of the
Federal Rules of Civil Procedure.    This court reviews the
imposition of sanctions for an abuse of discretion.     See Riley v.
City of Jackson,
    99 F.3d 757
    , 759 (5th Cir. 1996).     When
sanctions stem from a sua sponte Rule 11(c)(1)(B) decision, the
district court is required to afford the party notice describing
the offending conduct and allow him an opportunity to show cause
why sanctions should not be imposed.     Goldin v. Bartholow,
    166 F.3d 710
    , 722 (5th Cir. 1999).
In this instance, in ruling on the appellees’ motions to
dismiss, the district court found that the appellant’s complaint
was frivolous and intended to harass the litigants.    In its order
dismissing the appellant’s complaint, the district court ordered
that Rule 11 sanctions be imposed against the appellant.      The
appellant was allowed an opportunity to respond to defense
counsel’s submission of fee itemizations but was never given
advance notice of his perceived Rule 11 violations and an
opportunity to respond thereto.    The imposition of Rule
11(c)(1)(B) sanctions without notice and a hearing constitutes an
abuse of discretion by the district court.     See Goldin,
    166 F.3d at 722
    .   We vacate the district court’s sanction order and remand
this case for further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.