IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-20059 _____________________

ANTHONY R. MAGDALENO, II,

Plaintiff-Appellant,

versus

HOUSTON INDEPENDENT SCHOOL DISTRICT; ROD PAIGE, Dr.,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-96-CV-2492) _________________________________________________________________ December 16, 1997 Before JOLLY, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

Anthony R. Magdaleno appeals the dismissal of his racial

discrimination claim and other claims against the Houston

Independent School District (“HISD”) and Dr. Rod Paige, its

superintendent. We affirm.

In April 1996, Magdaleno brought claims against Paige and the

HISD pursuant to

, alleging that he had been

unlawfully discharged on the basis of race. He also claimed that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. he was discharged in retaliation for filing a grievance and

opposing Paige’s appointment as superintendent in violation of his

rights under the First Amendment. Paige responded with a defense

of qualified immunity, and moved for a Rule 7 reply or, in the

alternative, dismissal pursuant to Rule 12(b)(6).

The district court took up the question at a Rule 16 pretrial

conference, after specifically informing the parties that it would

deal with all pending motions at that time. At the hearing, the

district court pressed Magdaleno for any additional facts he could

allege to overcome the heightened pleading requirement invoked by

Paige’s assertion of qualified immunity. Magdaleno could not point

to any facts that tended to establish that anyone had acted

unlawfully with respect to his discharge, and the court concluded

that ordering a Rule 7 reply would be futile. It therefore

dismissed the claims against Paige. This was a perfectly

acceptable application of the heightened pleading rule as laid down

in Shultea v. Wood,

(5th Cir. 1995), and we

affirm this part of the district court’s judgment without further

comment.

Seeing that Magdaleno truly lacked any evidence of wrongful

action or motives on the part of anyone at the HISD with respect to

his discharge, the district court then proceeded to dismiss the

remainder of his claims against the HISD sua sponte. It is

-2- 2 somewhat unclear from the record whether this dismissal was for

failure to state a claim under Rule 12(b)(6) or as a summary

judgment under Rule 56. As Magdaleno’s claims were manifestly

sufficient to survive 12(b)(6) dismissal, we construe the district

court’s action as a sua sponte grant of summary judgment. Because

this grant failed to conform to the notice and other requirements

of Rule 56, it was a procedural error. Nonetheless, this error was

harmless.

In Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit,

(5th Cir. 1994), we held that

the sua sponte grant of summary judgment without benefit of notice

was a procedural error subject to harmless error review. In this

case, it is clear that Magdaleno simply could not point to any

facts that tended to prove wrongful action or motives on the part

of anyone at HISD with respect to his discharge. Because neither

of his claims against HISD could have succeeded without such a

showing, Magdaleno could not have survived summary judgment in any

event. The sua sponte grant of summary judgment was therefore not

prejudicial, and any procedural irregularities were harmless under

Leatherman. Accordingly, the judgment of the district court is

A F F I R M E D.

-3- 3