                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                       _______________________

                             No. 98-31418
                       _______________________

SHERIF K. SAKLA, M.D.,
                                                   Plaintiff-Appellant,

                                versus

THE CITY OF NEW ORLEANS, ET. AL.
                                                  Defendants-Appellees.

           _____________________________________________

            Appeal from the United States District Court
                for the Eastern District of Louisiana
                            (98-CV-2026-T)
           _____________________________________________
                             May 12, 2000

Before DUHÉ, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     In this discrimination case grounded in national origin,

Plaintiff-Appellant Sherif K. Sakla, M.D., appeals the district

court’s   dismissal,   with   prejudice,   of   his   complaint   against

Defendants-Appellees the City of New Orleans and the individual

members of the New Orleans City Council.        The district court ruled

that Sakla’s complaint fails to state a claim on which relief can

be granted.    We affirm.


                                   I
                         Facts and Proceedings

     Plaintiff-Appellant Sherif Sakla brought suit against the

    *
      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this opinion should not be published and is not precedent except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.
members        of   the   New   Orleans   City   Council    in   1998   after   his

application for a liquor license for his restaurant was denied.

The essence of his complaint is that (1) his restaurant was denied

a liquor license; (2) a similarly situated restaurant only two

blocks away was granted a liquor license; and (3) the only material

difference between the two restaurants is the national origin of

their owners, Sakla being an Egyptian.

     Asserting no other relevant facts, Sakla brought a §1983

lawsuit against the members of the City Council, alleging that he

was discriminated against on the basis of his national origin and

that his        property    was   taken   without   just    compensation.       The

defendants          answered    Sakla’s    complaint,      asserting    qualified

immunity, and simultaneously filed a Rule 12(b)(6) motion to

dismiss the complaint for failure to state a claim.                 The district

court dismissed all of Sakla’s claims with prejudice, and this

appeal followed.


                                        II
                          Dismissal of Sakla’s Complaint

     Sakla contends that his complaint meets the notice pleading

requirements of Rule 8(a)(2). In the alternative, he contends that

he has alleged facts sufficient to meet the heightened pleading

requirements of Elliot v. Perez1 and Schultea v. Wood.2                 We review

de novo a district court’s dismissal of a complaint for failure to

         1
       751 F.2d 1472, 1482 (5th Cir. 1985), overruled in part by
Leatherman   v.  Tarrant   County   Narcotics  Intelligence  and
Coordination Unit, 507 U.S. 163 (1993).
     2
             47 F.3d 1427 (5th Cir. 1995).

                                           2
state a claim.

      As an initial matter, we must determine whether Sakla’s

complaint was brought against the defendants in their official or

in their individual capacities, as different pleading burdens are

applicable to the two types of claims.         Sakla contends on appeal

that his complaint states claims against the defendants in both

their individual and their official capacities.            The complaint

itself, however, is ambiguous.           It declares that each of the

defendants is “domiciled in the State of Louisiana” and “a member

of the City Council of New Orleans.”       By way of relief, it requests

(1) an order directing the defendants to issue Sakla an alcoholic

beverage permit, (2) compensatory and punitive damages, and (3)

attorney’s fees.

      The district court treated the case as though it were brought

against the defendants in their individual capacities only.         There

is   some support    for   this   position:    Suits   against   municipal

officers in their official capacities are treated as suits against

the municipality itself,3 and, in his response to the defendants’

motion to dismiss, Sakla explicitly disclaimed any intent to sue

the City of New Orleans.     On the other hand, Sakla does not appear

to be aware of the implications of his declaration that he is not

suing the City.      Moreover, the relief for which he prays —— an

order directing that he be issued a liquor license —— can only be

granted in a suit brought against the defendants in their official

capacities.

      3
          Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996).

                                     3
     We conclude that Sakla has not met the pleading burden that is

applicable to either type of suit.         Therefore, in affirming the

district court’s dismissal of his complaint, we need not determine

the precise capacity or capacities in which the defendants have

been sued.

     No heightened pleading burden is applicable to claims against

municipal officers in their official capacities.4         A suit against

municipal    officers   in   their   official   capacities,   however,   is

treated as a suit against the municipality itself.             To recover

against a municipality under §1983, a plaintiff must demonstrate

that his injury was caused by a governmental “policy or custom.”5

Sakla’s complaint does not allege that he was denied a liquor

license pursuant to a governmental policy or custom. Indeed, Sakla

all but concedes in his appellate brief that he has no evidence

that such a policy or custom exists.      Thus, if Sakla’s complaint is

viewed as having been brought against the defendants in their

official capacities, he has failed to plead an essential element of

his lawsuit and the dismissal of his complaint must be affirmed.

     If, on the other hand, Sakla’s complaint is viewed as having

been brought against the defendants in their individual capacities,

they are entitled to qualified immunity.6            Qualified immunity

     4
         Baker, 75 F.3d at 195.
     5
       Monell v. Department of Social Services of the City of New
York, 436 U.S. 658, 694 (1978).
    6
       Jacquez v. Procunier, 801 F.2d 789, 791 (1986). It is true
that Sakla’s legal conclusion that he was discriminated against on
the basis of his national origin would, if proven, be sufficient to
overcome the defendants’ qualified immunity.        The fact that

                                      4
encompasses an immunity not only from liability, but also from

having      to   participate   in   defending   civil   litigation.7       In

recognition of this fact, we impose a heightened pleading burden on

plaintiffs bringing suits against municipal officers in their

individual capacities.8        This pleading standard requires §1983

plaintiffs to state “more than conclusory [sic] assertions.                It

requires claims of specific conduct and actions giving rise to a

constitutional violation.”9         “[T]he plaintiff must show that the

defendant’s conduct was not objectively reasonable and, further,

that the defendants violated clearly established law.              Moreover,

the   plaintiff      must   plead   specific    facts   with   a   level   of

particularity so that they would, if proved, warrant the relief she

seeks.”10

      The district court ruled that Sakla’s complaint failed to meet

the heightened pleading standards applicable to his individual

capacity claims.      We agree.     As earlier noted, the only facts that

Sakla alleged in his complaint were that (1) his restaurant was

denied a liquor license; (2) a similarly situated restaurant only

two blocks away was granted a liquor license; and (3) the only

material difference between the two restaurants is the national


defendants may not ultimately be found immune from liability,
however, does not relieve Sakla of the heightened pleading burden
that is applicable to all individual capacity lawsuits.
      7
           Id.
      8
           Schultea, 47 F.3d at 1433.
      9
           Baker, 75 F.3d at 195.
      10
           Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994).

                                       5
origin of their owners. Sakla’s complaint also baldly alleges that

the defendants discriminated against him on the basis of his

national origin.         It is not enough, however, for a plaintiff to

allege “mere conclusionary statements evidencing only a personal

belief that the defendants were motivated by an impermissible

animus.”11      Rather, a plaintiff “must plead specific facts with a

level of particularity so that they would, if proved, warrant the

relief [he] seeks.”12        This Sakla has failed to do.                    The mere

allegation      that    similarly     situated         individuals   were     treated

differently by the City Council is not the type of “particularized

pleading” that can satisfy the heightened pleading standard. As we

stated in Wicks, “[the plaintiff] makes only broad and wholly

conclusional      allegations       that       [the    defendants]   discriminated

against him on the basis of race.                     While [the plaintiff] does

allege racial animus,... he fails to allege any conduct of [the

defendants]      that    could   be    considered         to   violate   a    clearly

established statutory right.”13            Sakla’s complaint clearly does not

meet the heightened pleading requirements, and its dismissal is

therefore affirmed.

     In a related vein, we reject Sakla’s contention that he was

entitled to amend his complaint. Sakla never sought leave from the

district court to amend his complaint.                  His filing of a response


     11
          Id.
     12
          Id; see also Baker, 75 F.3d at 195.
    13
      Wicks v. Mississippi State Employment Services, 41 F.3d 991,
996 (5th Cir. 1995).

                                           6
defending the sufficiency of his complaint provided him with ample

“opportunity to make his case”,14 yet he failed to do so.

     Finally, we reject Sakla’s contention that he was entitled to

engage in limited discovery.      Sakla has offered no explanation of

what information he would hope to procure through discovery.       We

have recognized that “qualified immunity is an immunity from suit,

and extends beyond just a defense to liability to include all

aspects of civil litigation.”15    “The district court need not allow

any discovery unless it finds that plaintiff has supported his

claim with sufficient precision and factual specificity to raise a

genuine issue as to the illegality of defendant’s conduct at the

time of the alleged acts.”16   Absent a more specific justification

for limited discovery, we cannot say that the district court erred

reversibly in refusing to subject the defendants to the burdens of

the discovery process.


                                 III
                          Regulatory Taking

     Sakla contends that the City Council’s refusal to issue him a

liquor license constituted a regulatory taking.        This claim is

without merit, and was properly dismissed.     A regulation does not

effect a taking within the meaning of the Takings Clause if it

“substantially advances legitimate state interests” and does not



     14
          Id.
     15
          Jacquez, 801 F.2d at 791.
     16
          Schultea, 47 F.3d at 1434.

                                    7
“deny an owner economically viable use of his land.”17         Sakla’s

complaint makes no factual assertions indicating that the City

Council’s denial of his application for a liquor license has

deprived his property of all economically viable uses.         Indeed,

Sakla’s complaint notes that he currently runs a restaurant on his

property and that one of the City Council members had lunch there.

Thr district court’s dismissal of Sakla’s takings claim under Rule

12(b)(6) was not improper; there is simply no set of facts under

which Sakla could conceivably make out a cause of action for a

regulatory taking.18


                                  IV
                       Dismissal with Prejudice

     We review an involuntary dismissal with prejudice for abuse of

discretion.19 Ordinarily, a dismissal with prejudice is proper only

when there is “(a) a clear record of delay or contumacious conduct

by the plaintiff, and (b) where lesser sanctions would not serve

the best interests of justice.”20      As the district court noted,

however, there are competing concerns to be considered in the

context of a lawsuit against public officials.       The purpose of

qualified immunity is to protect officials from the burdens of

voluminous litigation. Thus, when it is clear that a plaintiff has


     17
          Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).
     18
          See In re Burzynski, 929 F.2d 733, 740 (5th Cir. 1993).
     19
          Moris v. Ocean Systems, Inc., 730 F.2d 248, 251 (5th Cir.
1984).
     20
          Id at 252.

                                   8
made out his best case against a government official, and that the

case is nevertheless legally insufficient to state claim on which

relief can be granted, a dismissal with prejudice may be proper.21

In light of these considerations, we cannot say that the district

court abused its discretion in dismissing the complaint with

prejudice.    The judgment and all rulings of the district court are

affirmed.

AFFIRMED.




     21
          See In re Burzynski, 989 F.2d at 740.

                                  9
