No. 99-30881 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30881 Summary Calendar

JOYCE MOORE, individually and on behalf of Joshua Moore,

Plaintiff-Appellee,

versus

STATE OF LOUISIANA, Etc., et al.,

Defendants,

RICHARD L. STALDER, individually and in his capacity as Secretary of the Department of Public Safety and Corrections; BENNY HARRIS, individually and in his capacity as warden, Louisiana Training Institute,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CV-1108-B -------------------- February 25, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Richard L. Stalder and Benny Harris appeal the district

court’s denial of their motion to dismiss Joyce Moore’s

complaint on the basis of qualified immunity. We have

jurisdiction to review the district court’s denial to the extent

it turned on matters of law, including whether any issues of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30881 -2-

disputed fact are material. Colston v. Barnhart,

,

284 (5th Cir.), cert. denied,

(1998). Our review

is de novo. Lemoine v. New Horizons Ranch and Ctr., Inc.,

(5th Cir. 1999). “To survive a motion to dismiss

in cases [in which] the qualified immunity defense is raised, a

plaintiff must state facts, which if proven, would defeat the

defense.” Babb v. Dorman,

, 475 n.5 (5th Cir. 1994).

Whether a public official is qualifiedly immune depends on

two inquiries. Harris v. Victoria Indep. Sch. Dist.,

, 223 (5th Cir.), cert. denied,

(1999). First,

a defendant is entitled to qualified immunity when a plaintiff

has failed to allege the violation of a clearly established

constitutional right by the defendant. Id. Second, a defense of

qualified immunity will succeed if the defendant’s conduct was

objectively reasonable at the time in light of clearly

established law. Id.

Moore’s complaint alleged that her son Joshua was subjected

to excessive force by an officer while Joshua was an inmate at

Louisiana Training Institute (LTI). Harris was the warden at LTI

when the incident occurred, and Stalder was the Secretary of

Louisiana’s Department of Public Safety and Corrections.

However, “[o]nly the direct acts or omissions of government

officials, not the acts of subordinates, will give rise to

individual liability under § 1983.” Alton v. Texas A&M Univ.,

(5th Cir. 1999). To hold supervisory officials

liable, a plaintiff must show that they “affirmatively

participate[d] in acts that cause[d] constitutional deprivation” No. 99-30881 -3-

or “implement[ed] unconstitutional policies that causally

result[ed] in plaintiff’s injury.” Baker v. Putnal,

(5th Cir. 1996).

Moore’s complaint did not sufficiently allege personal

participation by either Stalder or Harris in any constitutional

violation. The allegation that they may have imposed inadequate

discipline on the officer after the incident is not an allegation

that they participated in the constitutional violation argued in

the complaint, the use of force on Joshua. Although Moore’s

complaint states that Stalder had a policy of inadequately

training and supervising officers, there is no allegation that he

had any duty or opportunity to personally supervise or direct the

officer alleged to have used force on Joshua. Indeed, there is

no allegation at all of any policy, let alone one that was

constitutionally defective and “the moving force of the

constitutional violation” alleged in Moore’s complaint.

Thompkins v. Belt,

(5th Cir. 1987). Moore’s

conclusional allegations of supervisory involvement in the use of

excessive force on Joshua are insufficient to state any claim

against Stalder and Harris under § 1983. See, e.g., Morrison v.

City of Baton Rouge,

(5th Cir. 1985).

Accordingly, the district court erred in declining to find the

two supervisors immune.

On appeal, Moore argues that additional discovery might

allow her to make better claims against Stalder or Harris.

However, qualified immunity protects defendants from discovery

unless “the plaintiff’s pleadings assert facts which, if true, No. 99-30881 -4-

would overcome the defense of qualified immunity.” Wicks v.

Mississippi State Employment Servs.,

(5th Cir.

1995). Because Moore’s complaint did not contain facts that

would overcome the defense of qualified immunity, exposing

Stalder and Harris to the burdens of discovery would be improper.

See

.

For the foregoing reasons, we REVERSE the district court’s

denial of qualified immunity to Stalder and Harris, and we REMAND

with direction that the district court enter its order dismissing

the § 1983 claims against the appellants herein.