                                                         United States Court of Appeals
                                                                  Fifth Circuit

              IN THE UNITED STATES COURT OF APPEALS            FILED
                      FOR THE FIFTH CIRCUIT                  June 12, 2006

                      _____________________          Charles R. Fulbruge III
                                                             Clerk
                          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
                        __________________


                                1
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


*
  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
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


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
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
     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

2
 Because 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
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
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
Attorney’s Office.   We therefore affirm the dismissal of the

official capacity claims against Sins on that basis.

     AFFIRMED.




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