(caption unavailable)

* District Judge of the Western District of Texas, sitting by
designation.
**Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
______________________________
No. 93-7407
_______________________________
TYLENA LAW,
Plaintiff-Appellant,
VERSUS
BOBBIE HOUSTON, et al.,
Defendants,
CITY OF JACKSON, MISSISSIPPI,
Defendant-Appellee.
________________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi
(CA-J91-714(W)(N))
________________________________________________
(December 6, 1994)
Before JONES, DeMOSS, Circuit Judges, and BUNTON*, District Judge.
PER CURIAM:**
On December 7, 1990, Tylena Law was arrested for an alleged simple trespass in the City of
Flowood, Mississippi and taken to the Jackson Detention Center. Upon arrival, Law was booked into
the Det ention Center; however, it was discovered the booking officer failed to remove a gold
necklace from Law.
Two female detention officers, Bobbie Houston and Rosemary Harper, transported Law from

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her holding cell into the booking area and attempted to remove the gold necklace from around Law's
neck. A struggle ensued between Law and the officers during which Houston drew out and began
striking Law with a Monadnock PR-24 police baton or "billy club." Houston struck Law
approximately nine times in the presence of other detention officers. The incident was video taped
by a security camera in the booking area of the Detention Center.
On December 4, 1991, Law filed suit in the United States District Court for the Southern
District of Mississippi, Jackson Division, against Bobbie Houston, Rosemary Harper and the City of
Jackson, Mississippi. The suit alleged violations of 42 U.S.C. § 1983 and state law claims of assault
and battery. Following an extended period of discovery, the City of Jackson filed a motion to dismiss,
or in the alternative, for summary judgment. The District Court held a hearing on the motion,
considered briefs, testimony, and arguments of counsel. Ultimately, the District Court granted
summary judgment in favor of the City of Jackson based upon the lack of evidence of "a widespread
practice of any alleged beatings that should have placed the City on notice of such practices."
Further, the District Court found "no evidence of a policy or custom in the City of Jackson or its
Police Department which would deprive any citizen of their constitutional rights." Law appeals the
District Court's decision.
Law asserts two issues before this Court. First, whether the City of Jackson was bound by
the admissions it made during discovery; and second, whether the District Court erred in granting
summary judgment in favor of the City of Jackson. We answer both of these issues in the affirmative.
Standard of Review for Summary Judgment
Summary judgment is proper under Rule 56 of the Federal Rules of Civil Procedure if there
"is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a
matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 257 (1986). The non-movant "must
present affirmative evidence in order to defeat a properly supported motion for summary judgment."

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Id. This requires the non-movant to "make a showing sufficient to establish the existence of an[y]
element essential to that party's case, and on which that party will bear the burden of proof at trial."
Celotex v. Catrett, 477 U.S. 217, 322-23 (1986). This Court's standard for reviewing a summary
judgment on appeal is the same as that applied by the District Court, and it must be based on the
evidence which was presented at the District Court. Sanders v. English, 950 F.2d 1152, 1159 (5th
Cir. 1992); Reid v. State Farm Mutual Auto Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). Thus, the
Court reviews a grant of summary judgment de novo and in the light most favorable to the non-
movant. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994); Forsyth v. Barr, 19 F.3d
1527, 1533 (5th Cir. 1994).
Lastly, in determining whether there are any genuine issues of material fact which would
preclude a granting of summary judgment, the Court must first consult the applicable substantive law
in this case to ascertain the material factual issues. Harper v. Harris County, Texas, 21 F.3d 597, 600
(5th Cir. 1994).
Discussion
I. Municipal Liability under 42 U.S.C. § 1983
In order to establish liability on the part of the City of Jackson, the Appellant, Law, is required
to demonstrate either a policy or custom which caused the constitutional deprivation of her rights.
Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage
of any State . . . subjects, or causes to be subjected, any citizen of the United States
. . . to the deprivation of any rights, privileges, o r immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law . . . .
42 U.S.C. § 1983 (1994). The Supreme Court in Monell v. Department of Social Services, 436 U.S.
658 (1978) held that local governments may be the targets of a § 1983 action where official policy

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or governmental custom is responsible for a deprivation of rights protected by the Constitution.
However, Monell specifically rejected governmental respondeat superior liability under § 1983
concluding:
[A] local government may not be sued under § 1983 for an injury inflicted solely by
its employees or agents. Instead, it is when execution of government's policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the government as an entity
is responsible under § 1983.
436 U.S. at 694; see also, Oklahoma City v. Tuttle, 471 U.S. 808, 817-18 (1985). The Fifth Circuit
has interpreted the Monell decision to show that isolated violations by a police officer are not viewed
as persistent or repeated violations constituting policy or custom, Bennett v. City of Slidell, 728 F.2d
762, 768, n.3 (5th Cir. 1984); nor is a city to be held liable for the negligence or gross negligence of
its police chief or city officials in failing to properly train a particular police officer who caused an
alleged injury. Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir. 1983). Therefore, under existing
law, the only way to hold a local government liable for violations of § 1983 is to prove that the action
was an established policy or custom carried out by either a lawmaker or official representative of that
local government. Moreover, if there is no demonstration of a policy or custom which has caused
a deprivation of constitutional rights, there can be "no arguable basis in fact." Macias v. Raul A.
(Unknown), Badge No. 153, 23 F.3d 94, 99 (5th Cir. 1994)(dismissing a claim in which plaintiff
failed to identify any evidence of a policy or custom by the San Antonio Police Department depriving
a constitutional right). Law contends the City of Jackson has conclusively stated such an
unconstitutional policy or custom exists.
II. Factual Issue
Law argues there is a genuine issue of material fact in the case which precludes summary
judgment. According to Law, it was error for the District Court to grant summary judgment in light
of the City of Jackson's responses to Law's requests for admission.
In particular, the City of Jackson offered the following responses to Law's requests:

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REQUEST NO. 2: Admit or deny that the force used on Tylena Law on December
7, 1990, was excessive under the circumstances.
RESPONSE: Denied.
REQUEST NO. 3: Admit or deny that it is the position of the City of Jackson that the
force used on Tylena Law by Bobbie Houston and Rosem ary Harper was not
excessive.
RESPONSE: Admitted.
REQUEST NO. 4: Admit or deny that on December 7, 1990, Bobbie Houston acted
within established police department policies when she struck Tylena Law with her
club.
RESPONSE: Admitted.
Law argues the response to admission number 4 conclusively establishes that the City of Jackson has
a policy or custom in contravention of Law's constitutional rights under 42 U.S.C. § 1983.
III. Effect of Admissions under Rule 36
The City of Jackson argues that it is clear from the tenor of the Responses that no admission
of a policy allowing constitutional violations was in effect or ever will be in effect. The City of
Jackson further argues t he admission only proves that when police are equipped with weapons or
equipment, that it is the po licy to use the weapons or equipment for which they were designed.
Along with the motion for summary judgment, the City of Jackson filed several affidavits, including
ones by the Mayor, a City Councilman, and the Chief of Police, all stating there are no policies or
customs by the City of Jackson which violate any constitutional rights.
Rule 36 of the Federal Rules of Civil Procedure provides that "[a]ny matter admitted under
this rule is conclusively established unless the court on motion permits withdrawal or amendment of
the admission." Fed. R. Civ. P. 36. Although the Rule explicitly permits withdrawal or amendment
of the admission, the City of Jackson failed to make any attempt to do so. Furthermore, the Fifth
Circuit has observed that "[a]n admission that is not withdrawn or amended cannot be rebutted by
contrary testimony or ignored by the district court . . . ." American Automobile Assoc. v. AAA
Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991).

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The purpose of Rule 36 is to dispose of the need to present evidence on a matter that has been
admitted. Id. Because the City of Jackson never moved to withdraw or amend its response to
admission number 4, Law was not put on notice that additional discovery might be needed regarding
the City of Jackson's policies. More importantly, with its response to admission number 4, the City
of Jackson has conclusively established that Houston acted within police department policies when
she struck Law with the PR-24 police baton.
The affidavits offered by the City of Jackson in an attempt to undo the effects of the response
to admission number 4 are ineffectual against the weight of the unopposed admission. "Affidavits and
depositions entered . . . that attempt to establish issues of fact cannot refute [an] admission." United
States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987); accord, Karras v. Karras, 16 F.3d 245,
247 (8th Cir. 1994). Rule 36 allows both parties to restrict the issues to be resolved at trial by
effectively eliminating all matters which both parties agree upon. Kasuboski, 834 F.2d at 1350. Such
reasoning is echoed by the advisory committee for Rule 36 when they observed that "[u]nless the
party securing an admission can depend on its binding effect, he cannot safely avoid the expense of
preparing to prove the very matters on which he has secured the admission, and the purpose of the
rule is defeated." Fed. R. Civ. P. 36 advisory committee's note. Consequently, in the light most
favorable to Law, the response to admission number 4 must be accepted as binding, thereby creating
an issue of fact.
Conclusion
The District Court erroneously granted summary judgment in the present case. The effect of
the City of Jackson's response to admission number 4, co upled with the binding force of Rule 36,
allow for a genuine issue of material fact precluding summary judgment. For the foregoing reasons,
we REVERSE and REMAND the District Court's granting of summary judgment to Bobbie Houston,
Rosemary Harper and the City of Jackson.

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