               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-20059
                          Summary Calendar



KEVIN VON ESCHEN,

                                         Plaintiff-Appellant,

versus

LEAGUE CITY TEXAS; CITY OF WEBSTER,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-99-CV-2133
                       --------------------
                         September 8, 2000

Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

     Kevin Von Eschen (Von Eschen) appeals the dismissal of his

42 U.S.C. § 1983 claim against the City of Webster and the City

of League City (defendants) pursuant to Fed. R. Civ. P. 12(b)(6).

Von Eschen alleged that officers employed by the defendants used

excessive force in arresting him.   He additionally asserted that

the use of excessive force was a customary practice by officers

employed by defendants.

     Von Eschen correctly argues that the district court erred in

refusing to consider the allegations in his amended complaint. "A

     *
        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that this opinion should not be published and is not precedent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. 00-20059
                                    -2-

party may amend the party's pleading once as a matter of course

at any time before a responsive pleading is served . . . ."      Fed.

R. Civ. P. 15(a).   The district court refused to consider Von

Eschen's amended complaint because defendants had filed their

motions to dismiss, which the court characterized as responsive

pleadings, and Von Eschen had not obtained permission from the

court to file his amended complaint as required by Fed. R. Civ.

P. 15(a).   A motion to dismiss, however, is not a responsive

pleading that "extinguishes a plaintiff's right to amend a

complaint."    Zaidi v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir.

1984).   Accordingly, because Von Eschen could exercise his right

to amend automatically, the district court should have considered

his amended complaint when reviewing defendants' motions to

dismiss.    See id. at 1220.

     We need not remand this case to the district court, however,

because, even considering the allegations of the amended

complaint, Von Eschen failed to establish that his alleged

deprivation of rights was caused by a custom or policy of the

defendants.

     "To establish county/municipality liability under § 1983

. . . a plaintiff must demonstrate a policy or custom which

caused the constitutional deprivation."       Colle v. Brazos County,

Tex., 981 F.2d 237, 244 (5th Cir. 1993); Monell v. Department of

Soc. Servs. of the City of New York, 436 U.S. 658, 690 (1978).

A policy may be "a persistent, widespread practice of city

officials or employees that, although not authorized by

officially adopted policy, is so common and well settled as to
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                                 -3-

constitute a custom that fairly represents official municipal

policy."   McConney v. City of Houston, 863 F.2d 1180, 1184 (5th

Cir. 1989).    However, isolated instances of police misconduct are

inadequate to prove knowledge and acquiescence by policy makers.

Id. at 1184.    Moreover, the allegations of a policy or custom and

its relationship to the constitutional violation cannot be

conclusory but must contain specific facts.     Spiller v. City of

Texas City, 130 F.3d 162, 167 (5th Cir. 1997).

     Von Eschen argued that defendants had a custom or practice

of condoning the use of excessive force.     He maintains that

because defendants failed to address the officers' use of

excessive force, such excessive force became the unwritten policy

of defendants.   Von Eschen's conclusional allegations of “policy"

were not sufficient to establish county/municipality liability

under § 1983.    Spiller, 130 F.3d at 167.   Accordingly, the

district court did not err in dismissing his § 1983 action for

failure to state a claim under Rule 12(b)(6).

     Von Eschen's amended complaint also alleged a violation of

42 U.S.C. § 1986.   Liability under § 1986 requires a finding of a

§ 1985 violation.   42 U.S.C. § 1986.   Von Eschen did not allege

sufficient information to establish a claim under § 1985.        Bryan

v. City of Madison, 213 F.3d 267, 276 (5th Cir. 2000).

Accordingly, the failure of the district court to address this

claim was harmless error.

     Finally, we find no error in the district court's dismissal

of Von Eschen's state law claim of false arrest based upon the

immunity given defendants by the Texas Tort Claims Act.     The
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                               -4-

district court correctly concluded that defendants are immune

from Von Eschen's claim of false arrest.   See City of San Antonio

v. Dunn, 796 S.W.2d 258, 261 (Tex. Ct. App. 1990) (municipality

immune from claim arising out of intentional tort of false

arrest).

     AFFIRMED.
