                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 UNITED STATES COURT OF APPEALS                October 27, 2003
                          FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No.    02-21091


                             DAVID CROOKS,

                                                  Plaintiff-Appellant,
                                   versus


         TOMMY THOMAS; GIRARD FINCH; KENNETH LARRAMORE,

                                                 Defendants-Appellees.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (H-01-CV-3725)


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     David Crooks, proceeding pro se, appeals the summary judgment

against his 42 U.S.C. § 1983 civil rights action, maintaining he

did not receive the underlying motion.         Any notice inadequacies

constitute harmless error.     AFFIRMED.

                                     I.

     Crooks’ complaint claimed: Defendants (sheriff and two deputy

sheriffs for Harris County, Texas) violated his civil rights by

failing to move him from a cell he shared with Hispanics; despite



     *
      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this opinion should not be published and is not precedent except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.
Crooks’ repeated complaints to guards that the Hispanics were

harassing him because he was the only black inmate in the cell,

Defendants refused to intervene; Crooks was severely beaten by his

Hispanic cellmates; and Defendants tried to hide the beating by

reporting it as a riot Crooks instigated.

     Crooks filed this action on 30 October 2001, listing his

address as “9223 Clearway, Houston, TX, 77033 but is incarsarated

[sic]    in    701   N.   San     Jacinto,     7K1,   Houston,      TX,     77002”.

Approximately three weeks later, by letter to the district court,

Crooks    advised    he   had    been   “transferred     to    an   [sic]    T.D.C.

Facility, specifically Garza West.              Send All Notices and letter

[sic] (ETC) to Garza West, TF, HCO2, Box 995, Beeville TX 78102”.

     On 1 February 2002, the district court ordered that summonses

issue    for   Defendants.       The    summonses     listed   Crooks’      earlier

provided alternative address as 701 N. San Jacinto, despite the

district court’s receipt of Crooks’ change of address letter.

     On 7 March 2002, Defendants filed a motion to dismiss and

served it on Crooks at the N. San Jacinto and Clearway addresses.

The service was returned not delivered from the N. San Jacinto

address; on the other hand, it appears that Crooks’ mother, Mary

Crooks, signed for receipt of the motion at the Clearway address.

(Defendants have provided the form signed by Mary Crooks only in

their record excerpts.          Restated, the form is not included in the

record on appeal, as required.               As discussed infra, because the


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disposition of this appeal does not turn on whether Crooks received

the motion, we need not address whether it was served on him

through his mother.)

     More than five months later, not having received from Crooks

a response to the motion, the district court dismissed this action.

Although Defendants had moved to dismiss, their motion was treated

as one for summary judgment.

                                 II.

     Crooks maintains:     he never received Defendants’ motion;

therefore, summary judgment was improper.    As noted, we need not

address whether Crooks was served.      Assuming he was not, this

failure constitutes harmless error.

     As described, although Defendants filed a motion to dismiss,

the district court referred to it as one for summary judgment and

considered evidence outside the complaint (a grievance resolution

form Defendants submitted).    Of course, district courts have such

authority, see FED. R. CIV. P. 12(b); but, in doing so, the court

must consider the motion under Rule 56, including application of

its notice requirement.    See FED. R. CIV. P. 12(b) & 56(c); e.g.,

Washington v. Allstate Ins. Co., 901 F.2d 1281, 1283-84 (5th Cir.

1990).   “Whenever   a motion to dismiss is treated as a motion for

summary judgment, the nonmovant is entitled to the procedural

safeguards of Rule 56.”    Washington, 901 F.2d at 1284.




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     Although our court enforces this notice requirement, “the

harmless error doctrine applies to lack of notice as required by

Rule 56(c)”.   Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994).               “When

there is no notice to the nonmovant, summary judgment will be

considered harmless if the nonmovant has no additional evidence or

if all of the nonmovant’s additional evidence is reviewed by the

appellate court and none of the evidence presents a genuine issue

of material fact.” Id.     (quoting Resolution Trust Corp. v. Sharif-

Munif-Davidson Dev. Corp., 992 F.2d 1398, 1403 n.7 (5th Cir.

1993)).

     Along this line, Crooks submitted the following with his

notice of appeal:    statements by prisoners Esquivel and Andrews; a

sheriff’s department disciplinary committee report; a district

court order on service of process highlighted by Crooks to show

Defendants were required to serve on him a copy of every paper

submitted to the court; and a district court order stating Crooks

could proceed IFP.

     Esquivel states:      he witnessed racist behavior from other

Hispanics toward Crooks; the Hispanic cellmates threatened to fight

Crooks, refused to let Crooks watch television in English, and

stole Crooks’ belongings; he remembers Crooks complaining to the

Officers   about   the   Hispanics;       and   the   Officers   knew   of   the

situation, but were indifferent to it.


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     Andrews states:      he witnessed Crooks’ beating, including a

“gang of     Hispanics   jumping   on       [Crooks]”;   it   could    have   been

avoided; everyone knew there was a problem in Crooks’ cell over the

television; he saw Crooks talking to Officers about being moved

from that cell; and, after Crooks’ beating, the cell was changed to

house only English-as-a-Second-Language inmates.

     The   disciplinary     committee        report    reflects     that   Crooks

reported his attack and claimed that he had complained previously

in seeking to be moved.        (A handwritten note by Crooks on the

report asserts that he said more to the Officers that was not

incorporated in the report.)        The report states the incident was

treated as a riot for which Crooks was sanctioned with a 20-day

loss of privileges, probated for 30 days.                (Crooks asserts this

shows Defendants’ attempt to hide their conduct, because if he had

instigated a riot, his punishment would have been more severe than

probation.)

                                     A.

     The summary judgment ruling was premised on the fact that

Defendants’ conduct could not give rise to liability in their

official capacities.      Such liability, pursuant to claims under §

1983, can attach only when the claimed unconstitutional conduct

implements    or   executes   a    policy       or    when    a   constitutional

deprivation results from governmental custom.                Monell v. New York

Dep’t of Social Serv., 436 U.S. 658, 690-91 (1978).                   An isolated


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incident is not sufficient to show such a custom.              Palmer v. City

of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (holding that

official policy is either a statement officially adopted by a

municipality or a persistent widespread practice of municipality

employees which is common and well established), overruled in part

by   Leatherman    v.   Tarrant    County    Narcotics      Intelligence    and

Coordination Unit, 507 U.S. 163 (1993).

      Three of the above-described documents submitted with Crooks’

notice of appeal relate to Defendants’ refusal to move him to a

different   cell.        That     conduct,    even     if    assumed   to   be

unconstitutional, does not reflect a policy or custom sufficient to

establish liability through Defendants’ official capacities.

                                     B.

      Defendants’ motion also claimed qualified immunity (individual

capacities).      The summary judgment ruling does not address that

claim, other than to state:         Defendants “could not have legally

done what [Crooks] would have preferred”; and Crooks did not claim

Defendants “instigated the assault on him or that they failed to

intervene to stop it and the riot”.

      In deciding whether a defendant is entitled to such immunity,

the court first determines whether the plaintiff alleged violation

of a clearly established constitutional right.              E.g., Williams v.

Bramer, 180 F.3d 699, 702 (5th Cir. 1999).           If the court rules such




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a violation is alleged, it next determines whether the defendant’s

conduct was then objectively unreasonable.           Id.

     Documents    provided    with    Crooks’    notice    of   appeal   are

insufficient     to   show   violation      of   a   clearly    established

constitutional right by Defendants’ not moving him from a cell in

which he was a racial minority.           Therefore, we need not address

whether Defendants’ conduct was objectively unreasonable.

                                     III.

     For the foregoing reasons, the summary judgment is

                                                                AFFIRMED.




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