IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40765 Summary Calendar

RODNEY JAMES DILWORTH,

Plaintiff-Appellant,

versus

FIRST NAME UNKNOWN VANCE, Officer; S. SIMON, Officer; P. JOHNSON, Officer; T. BOOTHER, Officer; FIRST NAME UNKNOWN CUNDIFF, Officer; JERRY BALLARD, Officer; ROBERT RHODES, Officer; JOHN DOES, Officers,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas (94-CV-275) --------------------

September 2, 1999

Before POLITZ, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Rodney James Dilworth, Texas prisoner #

632515, is appealing the district court’s dismissal of Defendant-

Appellants Page Johnson, Parrish Cundiff, and Jerry Ballard on

summary judgment grounds and Robert Rhodes under FED. R. CIV. P.

12(b)(6). As the district court relied on evidence presented to

the court in reaching its conclusion that Dilworth’s claims were

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. without merit, we treat Rhodes’s dismissal as a summary judgment.

FED. R. CIV. P. 12(b); Washington v. Allstate Ins. Co.,

(5th Cir. 1990). In an appeal from summary judgment,

we review the record de novo, “examining the evidence in the light

most favorable to [Dilworth], the nonmovant below.” Duckett v.

City of Cedar Park, Tex.,

(5th Cir.

1992)(citation omitted). Summary judgment is proper when, viewing

the evidence in the light most favorable to the nonmovant, “there

is no genuine issue as to any material fact and . . . the moving

part is entitled to judgment as a matter of law.” Amburgey v.

Corhart Refractories Corp.,

(5th Cir. 1991); FED.

R. CIV. P. 56(c).

The district court’s dismissal of Dilworth’s claims against

Johnson, Ballard, Cundiff, and Rhodes was based on conclusions that

these persons did not use excessive force but only attempted to

restrain Dilworth, and that Dilworth had not shown that a physical

injury resulted from the encounter. With respect to both these

grounds, however, the evidence presented to the court reveals the

existence of genuine issues of material fact that cannot be

resolved on a motion for summary judgment. Amburgey,

. The dismissal of the defendants is therefore VACATED and the

case REMANDED FOR FURTHER PROCEEDINGS.

Dilworth has also challenged the district court’s denial of

his motion to amend his complaint. Leave to amend is “by no means

automatic.” Wimm v. Jack Eckerd Corp.,

(5th Cir.

1993). To deny Dilworth’s motion to amend, the district court

2 could rely on the Defendants-Appellees’ argument that Dilworth’s

motion was untimely. See, e.g. Avatar Exploration, Inc. v.

Chevron, U.S.A., Inc.,

(5th Cir. 1991). The

district court’s denial of Dilworth’s motion to amend filed 27

months after the commencement of the suit and six months after we

remanded the case was not an abuse of discretion.

Dilworth’s final argument is that the district court failed to

rule on his motion for service by publication on the three named

but unserved defendants, Todd Boother, Doug Vance, and Chris Simon,

as permitted under TEX. R. CIV. P. 109 (West 1999). This rule does

not require the court to take any action before service is

accomplished; rather, it is the duty of the clerk of court to issue

citation. Moreover, Dilworth has not shown that he made a diligent

attempt to locate these defendants by other means. The district

court’s denial of this motion was not reversible error.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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