Sakla v. City of New Orleans, et al

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-31418
_______________________
SHERIF K. SAKLA, M.D., Plaintiff-Appellant,
versus
THE CITY OF NEW ORLEANS, ET. AL. Defendants-Appellees.
_____________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-2026-T)
_____________________________________________
May 12, 2000
Before DUHÉ, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
In this discrimination case grounded in national origin,
Plaintiff-Appellant Sherif K. Sakla, M.D., appeals the district
court’s dismissal, with prejudice, of his complaint against
Defendants-Appellees the City of New Orleans and the individual
members of the New Orleans City Council. The district court ruled
that Sakla’s complaint fails to state a claim on which relief can
be granted. We affirm.
I
Facts and Proceedings
Plaintiff-Appellant Sherif Sakla brought suit against the

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1 751 F.2d 1472, 1482 (5th Cir. 1985), overruled in part by
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993).
2 47 F.3d 1427 (5th Cir. 1995).
2
members of the New Orleans City Council in 1998 after his
application for a liquor license for his restaurant was denied.
The essence of his complaint is that (1) his restaurant was denied
a liquor license; (2) a similarly situated restaurant only two
blocks away was granted a liquor license; and (3) the only material
difference between the two restaurants is the national origin of
their owners, Sakla being an Egyptian.
Asserting no other relevant facts, Sakla brought a §1983
lawsuit against the members of the City Council, alleging that he
was discriminated against on the basis of his national origin and
that his property was taken without just compensation. The
defendants answered Sakla’s complaint, asserting qualified
immunity, and simultaneously filed a Rule 12(b)(6) motion to
dismiss the complaint for failure to state a claim. The district
court dismissed all of Sakla’s claims with prejudice, and this
appeal followed.
II
Dismissal of Sakla’s Complaint
Sakla contends that his complaint meets the notice pleading
requirements of Rule 8(a)(2). In the alternative, he contends that
he has alleged facts sufficient to meet the heightened pleading
requirements of Elliot v. Perez1 and Schultea v. Wood.2 We review
de novo a district court’s dismissal of a complaint for failure to

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3 Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996).
3
state a claim.
As an initial matter, we must determine whether Sakla’s
complaint was brought against the defendants in their official or
in their individual capacities, as different pleading burdens are
applicable to the two types of claims. Sakla contends on appeal
that his complaint states claims against the defendants in both
their individual and their official capacities. The complaint
itself, however, is ambiguous. It declares that each of the
defendants is “domiciled in the State of Louisiana” and “a member
of the City Council of New Orleans.” By way of relief, it requests
(1) an order directing the defendants to issue Sakla an alcoholic
beverage permit, (2) compensatory and punitive damages, and (3)
attorney’s fees.
The district court treated the case as though it were brought
against the defendants in their individual capacities only. There
is some support for this position: Suits against municipal
officers in their official capacities are treated as suits against
the municipality itself,3 and, in his response to the defendants’
motion to dismiss, Sakla explicitly disclaimed any intent to sue
the City of New Orleans. On the other hand, Sakla does not appear
to be aware of the implications of his declaration that he is not
suing the City. Moreover, the relief for which he prays —— an
order directing that he be issued a liquor license —— can only be
granted in a suit brought against the defendants in their official
capacities.

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4 Baker, 75 F.3d at 195.
5 Monell v. Department of Social Services of the City of New
York, 436 U.S. 658, 694 (1978).
6 Jacquez v. Procunier, 801 F.2d 789, 791 (1986). It is true
that Sakla’s legal conclusion that he was discriminated against on
the basis of his national origin would, if proven, be sufficient to
overcome the defendants’ qualified immunity. The fact that
4
We conclude that Sakla has not met the pleading burden that is
applicable to either type of suit. Therefore, in affirming the
district court’s dismissal of his complaint, we need not determine
the precise capacity or capacities in which the defendants have
been sued.
No heightened pleading burden is applicable to claims against
municipal officers in their official capacities.4 A suit against
municipal officers in their official capacities, however, is
treated as a suit against the municipality itself. To recover
against a municipality under §1983, a plaintiff must demonstrate
that his injury was caused by a governmental “policy or custom.”5
Sakla’s complaint does not allege that he was denied a liquor
license pursuant to a governmental policy or custom. Indeed, Sakla
all but concedes in his appellate brief that he has no evidence
that such a policy or custom exists. Thus, if Sakla’s complaint is
viewed as having been brought against the defendants in their
official capacities, he has failed to plead an essential element of
his lawsuit and the dismissal of his complaint must be affirmed.
If, on the other hand, Sakla’s complaint is viewed as having
been brought against the defendants in their individual capacities,
they are entitled to qualified immunity.6 Qualified immunity

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defendants may not ultimately be found immune from liability,
however, does not relieve Sakla of the heightened pleading burden
that is applicable to all individual capacity lawsuits.
7 Id.
8 Schultea, 47 F.3d at 1433.
9 Baker, 75 F.3d at 195.
10 Burns-Toole v. Byrne, 11 F.3d 1270, 1274 (5th Cir. 1994).
5
encompasses an immunity not only from liability, but also from
having to participate in defending civil litigation.7 In
recognition of this fact, we impose a heightened pleading burden on
plaintiffs bringing suits against municipal officers in their
individual capacities.8 This pleading standard requires §1983
plaintiffs to state “more than conclusory [sic] assertions. It
requires claims of specific conduct and actions giving rise to a
constitutional violation.”9 “[T]he plaintiff must show that the
defendant’s conduct was not objectively reasonable and, further,
that the defendants violated clearly established law. Moreover,
the plaintiff must plead specific facts with a level of
particularity so that they would, if proved, warrant the relief she
seeks.”10
The district court ruled that Sakla’s complaint failed to meet
the heightened pleading standards applicable to his individual
capacity claims. We agree. As earlier noted, the only facts that
Sakla alleged in his complaint were that (1) his restaurant was
denied a liquor license; (2) a similarly situated restaurant only
two blocks away was granted a liquor license; and (3) the only
material difference between the two restaurants is the national

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11 Id.
12 Id; see also Baker, 75 F.3d at 195.
13 Wicks v. Mississippi State Employment Services, 41 F.3d 991,
996 (5th Cir. 1995).
6
origin of their owners. Sakla’s complaint also baldly alleges that
the defendants discriminated against him on the basis of his
national origin. It is not enough, however, for a plaintiff to
allege “mere conclusionary statements evidencing only a personal
belief that the defendants were motivated by an impermissible
animus.”11 Rather, a plaintiff “must plead specific facts with a
level of particularity so that they would, if proved, warrant the
relief [he] seeks.”12 This Sakla has failed to do. The mere
allegation that similarly situated individuals were treated
differently by the City Council is not the type of “particularized
pleading” that can satisfy the heightened pleading standard. As we
stated in Wicks, “[the plaintiff] makes only broad and wholly
conclusional allegations that [the defendants] discriminated
against him on the basis of race. While [the plaintiff] does
allege racial animus,... he fails to allege any conduct of [the
defendants] that could be considered to violate a clearly
established statutory right.”13 Sakla’s complaint clearly does not
meet the heightened pleading requirements, and its dismissal is
therefore affirmed.
In a related vein, we reject Sakla’s contention that he was
entitled to amend his complaint. Sakla never sought leave from the
district court to amend his complaint. His filing of a response

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14 Id.
15 Jacquez, 801 F.2d at 791.
16 Schultea, 47 F.3d at 1434.
7
defending the sufficiency of his complaint provided him with ample
“opportunity to make his case”,14 yet he failed to do so.
Finally, we reject Sakla’s contention that he was entitled to
engage in limited discovery. Sakla has offered no explanation of
what information he would hope to procure through discovery. We
have recognized that “qualified immunity is an immunity from suit,
and extends beyond just a defense to liability to include all
aspects of civil litigation.”15 “The district court need not allow
any discovery unless it finds that plaintiff has supported his
claim with sufficient precision and factual specificity to raise a
genuine issue as to the illegality of defendant’s conduct at the
time of the alleged acts.”16 Absent a more specific justification
for limited discovery, we cannot say that the district court erred
reversibly in refusing to subject the defendants to the burdens of
the discovery process.
III
Regulatory Taking
Sakla contends that the City Council’s refusal to issue him a
liquor license constituted a regulatory taking. This claim is
without merit, and was properly dismissed. A regulation does not
effect a taking within the meaning of the Takings Clause if it
“substantially advances legitimate state interests” and does not

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17 Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).
18 See In re Burzynski, 929 F.2d 733, 740 (5th Cir. 1993).
19 Moris v. Ocean Systems, Inc., 730 F.2d 248, 251 (5th Cir.
1984).
20 Id at 252.
8
“deny an owner economically viable use of his land.”17 Sakla’s
complaint makes no factual assertions indicating that the City
Council’s denial of his application for a liquor license has
deprived his property of all economically viable uses. Indeed,
Sakla’s complaint notes that he currently runs a restaurant on his
property and that one of the City Council members had lunch there.
Thr district court’s dismissal of Sakla’s takings claim under Rule
12(b)(6) was not improper; there is simply no set of facts under
which Sakla could conceivably make out a cause of action for a
regulatory taking.18
IV
Dismissal with Prejudice
We review an involuntary dismissal with prejudice for abuse of
discretion.19 Ordinarily, a dismissal with prejudice is proper only
when there is “(a) a clear record of delay or contumacious conduct
by the plaintiff, and (b) where lesser sanctions would not serve
the best interests of justice.”20 As the district court noted,
however, there are competing concerns to be considered in the
context of a lawsuit against public officials. The purpose of
qualified immunity is to protect officials from the burdens of
voluminous litigation. Thus, when it is clear that a plaintiff has

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21 See In re Burzynski, 989 F.2d at 740.
9
made out his best case against a government official, and that the
case is nevertheless legally insufficient to state claim on which
relief can be granted, a dismissal with prejudice may be proper.21
In light of these considerations, we cannot say that the district
court abused its discretion in dismissing the complaint with
prejudice. The judgment and all rulings of the district court are
affirmed.
AFFIRMED.

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