                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                      _______________________

                            No. 95-50222
                          Summary Calendar
                      _______________________


                    ARMANDO SANCHEZ RODRIGUEZ,

                                                 Plaintiff-Appellant,

                               versus
                       UNKNOWN SAPD OFFICER,
                       UNKNOWN DEA AGENT #1,
                    TOM WADE and DAVID AMBROSE,

                                                 Defendant-Appellees,

                  UNKNOWN DEA AGENT #1, TOM WADE
                        AND DAVID AMBROSE,

                                                  Defendants.

_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                           (CA-SA-93-649)
_________________________________________________________________
                          January 4, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM:*

          Appellant Rodriguez filed a civil rights action against an

unknown officer of the San Antonio Police Department and several DEA

agents, alleging that the unknown SAPD officer kicked him in the head

as he was restrained face-down following a high-speed chase.     The



   *
      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opinion should not be published and is not precedent except under the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.
district court appointed Rodriguez counsel, and after ample time for

discovery, the San Antonio City Attorney’s office moved for summary

judgment.      The city contended that because Rodriguez could not

identify the unknown police officer, the case against that person must

be dismissed. The magistrate judge agreed, as did the district court,

and summary judgment was granted dismissing the action.1

            On appeal, appellant admits that although discovery revealed

the names of the four San Antonio police officers involved in

arresting him, it did not permit him to identify which one of them
allegedly approached and kicked him in the head just after he was

restrained.       Why discovery failed to identify the officer who

perpetrated the alleged assault is not clear. What we do know is that

Rodriguez had 16 months after filing suit to identify that individual

and he did not do so.        The City has no responsibility or burden to

identify the unknown officer -- the City was not even sued. Further,

it would not be fair to require the officers to defend this case

before a jury, not knowing exactly what charges are brought against

them.2

            This is no longer a case concerning the sufficiency of
Rodriguez's pleading under Fed. R. 8(a), because summary judgment has

been granted.     Because Rodriguez did not meet his burden to create a




      1
            Appellant has not     appealed   the dismissal of the other individual
defendants on summary judgment.
      2
             Rodriguez did not sue the officers on the alternative theory that they
had a duty to intervene and prevent brutality by one of their number. Inasmuch as
he alleges a sudden, unforeseen and very brief assault, consisting of one kick to the
head Rodriguez would have a difficult time establishing this theory.

                                         2
genuine factual issue over the identity of the single assailant,

summary judgment was proper.

          AFFIRMED.




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