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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-1742
_____________________
CHARLENE LEATHERMAN, ET AL.,
Plaintiffs-Appellants,
VERSUS
TARRANT COUNTY NARCOTICS INTELLIGENCE
AND COORDINATION UNIT, ET AL.,
Defendants-Appellees.
____________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_____________________________________________________
(August 5, 1994)
Before JOHNSON, BARKSDALE, and DeMOSS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
This second appeal of an action that has travelled to the
Supreme Court concerns an adverse summary judgment on § 1983
unreasonable search and seizure claims, with the issues here
focusing primarily on discovery and summary judgment procedure,
rather than the merits. (The one exception is whether the
detection of odors associated with drug production furnished
probable cause for two search warrants.) Once the procedural
morass is sorted out, it is most obvious that summary judgment, as
well as the preliminary steps by the district court to dispose of
all claims without further cost and delay (to include considering

summary judgment sua sponte as to the defendant Cities), was more
than appropriate. We AFFIRM.
I.
On the first appeal, our court presented a comprehensive
review of the allegations in the complaint (amended). Leatherman
v. Tarrant County Narcotics Intelligence and Coordination Unit, 954
F.2d 1054, 1055-57 (5th Cir. 1992), reversed, ___ U.S. ___, 113 S.
Ct. 1160 (1993). For this appeal, the Supreme Court's brief
statement suffices:
This action arose out of two separate incidents [in
May 1989 in the City of Lake Worth, and January
1989 in the City of Grapevine, both in Tarrant
County, Texas] involving the execution of search
warrants by ... [county and city] law enforcement
officers. Each involved the forcible entry into a
home based on the detection of odors associated
with the manufacture of [methamphetamine]. One
homeowner claimed that he was assaulted by the
officers after they had entered; another claimed
that the police had entered her home in her absence
and killed her two dogs.
___ U.S. at ___, 113 S. Ct. at 1161.
The homeowners brought this action in late 1989, as amended in
early 1990, claiming unreasonable search and seizure under the
Fourth and Fourteenth Amendments. Sued, among others, were the
Tarrant County Narcotics Intelligence and Coordination Unit
(TCNICU), Tarrant County, and the Cities of Lake Worth and
Grapevine.1 (TCNICU was involved in both searches, and apparently
was responsible for obtaining the warrants. Grapevine officers
1
Defendants Tim Curry (TCNICU's Director) and Don Carpenter
(Sheriff of Tarrant County) were dismissed because they were sued
only in their official capacity. The homeowners do not challenge
the dismissals.
- 2 -

apparently accompanied TCNICU on one search; Lake Worth officers,
on the other.)
The action is premised on two claims: failure to train
officers properly on the execution of search warrants, especially
when confronted by a family dog (training claim); and TCNICU's
custom or policy to request search warrants based solely on the
detection of odors associated with the manufacture of drugs (search
warrant claim). It bears emphasis that the search warrant claim
was not made against the Cities.
In early 1991, the district court dismissed this action
because the complaint failed to satisfy the "heightened pleading
requirement" our court imposed, inter alia, on § 1983 claims
against municipalities. In the alternative, it granted summary
judgment. Our court affirmed, relying solely on the heightened
pleading requirement, 954 F.2d at 1058 & n.6 ("The district court
ruled, in the alternative, that summary judgment was appropriate
and that no further discovery was necessary. Because we hold that
the district court properly dismissed the complaints based on the
insufficiency of the allegations, we need not reach the other
issues raised.").
The Supreme Court reversed, invalidating the pleading
requirement insofar as municipalities are concerned. ___ U.S. at
___, 113 S. Ct. at 1161-63. Accordingly, in June 1993, our court
remanded the case to the district court, which adopted its earlier
summary judgment. It did so within a month of the remand order,
without requesting additional briefing or argument.
- 3 -

II.
The procedural posture of this action, as well as the fact
that only one of the two claims is against the Cities, must be kept
in focus. Although this action is before us for the second time,
it is as if it were here for the first, because it is the 1991
summary judgment (alternative basis for dismissal before first
appeal) that is at issue.2 In short, no issues spring from the
procedure followed on remand by the district court in 1993; the
issues concern the district court's rulings -- procedural and
substantive -- in granting summary judgment in 1991.
In that light, and concerning Tarrant County and TCNICU, the
homeowners challenge the summary judgment on the merits only as to
the search warrant claim. For both claims (search warrant and
training), they raise related procedural issues regarding a
protective order awarded those two defendants and the district
court's refusal to grant a continuance. (Restated, they do not
challenge on the merits the ruling on the training claim.)
Concerning the Cities, the homeowners challenge the sua sponte
summary judgment granted the Cities (training claim), but only from
a procedural slant; they do not contest the ruling on the merits.
For purposes of reviewing the procedural challenges, an
overview of the motions in issue is in order. In sum, the
homeowners were faced from the start with summary judgment. After
2
On remand, the district court noted that the "Supreme Court's
disapproval related only to the Rule 12(b)(6) reason for dismissal
[heightened pleading standard]", and stated that the reasons for
the original, alternative summary judgment "remain unimpaired". It
concluded that those reasons should "continue to be given effect".
- 4 -

the amended complaint was filed in March 1990, TCNICU and Tarrant
County moved for summary judgment less than a month later, and
moved for a protective order that June, in response to the
homeowners' amended document request concerning the TCNICU search
warrant policy.
In less than two weeks, the homeowners responded to the
summary judgment motion and moved for a continuance on it,
asserting that they had "not had a reasonable opportunity to
discover information ... essential to" oppose summary judgment. In
late July, the homeowners supplemented their response to the
summary judgment motion. The motion to file the supplemental
response recited that, because of a discovery dispute regarding the
requested protective order, they "continue to maintain ... that
consideration of the [search warrant claim] issue[] ... should not
be addressed at this time"; however, the homeowners also noted
that, "with the filing of this [supplemental response], [they] no
longer have objection to the Court's consideration of the issues",
other than the search warrant claim, to which the summary judgment
motion pertained. The supplemental response was conclusory,
maintaining that the attached affidavits (made by the homeowners
regarding the facts relating to the searches) demonstrated material
fact issues. (In later addressing these affidavits, the district
court noted that the affidavits, restricted as they were to the
homeowners' knowledge, "[a]t most ... raised issues of impropriety
on the part of the individual officers who participated in the
- 5 -

raids. Quite clearly, this does not create an issue of liability
on the part of the public entity defendants.")
Early in August 1990, the case was reassigned to another
judge; in late December, he granted the protective order. And, in
late January 1991, the continuance was denied; summary judgment
(alternative to heightened pleading ruling) was awarded all
defendants. Prior to the dismissal, however, the homeowners had
continued to take discovery (apparently, they deposed TCNICU
officials).
A.
In challenging the summary judgment awarded TCNICU and Tarrant
County, the homeowners raise one substantive and two procedural
issues.
1.
For their one challenge on the merits, the homeowners contest
the search warrants requested by TCNICU on the basis of odors
associated with the operation of a clandestine methamphetamine
laboratory, contending that this fails to describe an odor
"sufficiently distinctive to identify a forbidden substance." See
Johnson v. United States, 333 U.S. 10, 13 (1948):
If the presence of odors is testified to before a
magistrate and he finds the affiant qualified to
know the odor, and it is one sufficiently
distinctive to identify a forbidden substance, this
Court has never held such a basis insufficient to
justify issuance of a search warrant. Indeed it
might very well be found to be evidence of most
persuasive character.
For their challenge to the search warrant claim summary
judgment, it is not clear whether the homeowners are asserting a
- 6 -

lack of probable cause for the two warrants used for their
residences, or are challenging the TCNICU custom or policy of
requesting search warrants based on odors, or both.3 In any event,
this action contests only the warrants used for the two homes; the
homeowners seek only money damages and do not seek to enjoin the
custom or policy. In sum, the custom or policy is cited as a means
of seeking to extend liability to TCNICU/the County. See Monell v.
Department of Soc. Serv. of City of N.Y., 436 U.S. 658, 694 (1978)
("We conclude, therefore, that 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 a government's policy or
custom ... inflicts the injury that the government as an entity is
responsible under § 1983.")
In United States v. McKeever, 906 F.2d 129 (5th Cir. 1990),
cert. denied, 498 U.S. 1070 (1991), not cited by the parties to
this issue, our court upheld a search warrant requested on the
basis of odors:
There was a substantial basis for finding
probable cause in this case. First, a reliable and
knowledgeable informant sold a large quantity of
ice to two individuals who smelled of amphetamine.
The informant then followed one of these
individuals to the site of the search. Next,
officers, experienced in drug detection, visited
the secluded premises of the search and smelled the
aroma of cooking amphetamine. Distinctive odors,
3
As is well-established, we review the search warrant claim
summary judgment freely. See, e.g., Amburgey v. Corhart
Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991). Summary
judgment is appropriate when, viewing the evidence in a light most
favorable to the non-movant, there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56.
- 7 -

detected by those qualified to know them, may alone
establish probable cause. There were no buildings
nearby or other apparent sources of the odor.
These facts certainly support a finding that
probable cause existed.
Id. at 132 (emphasis added; citations omitted).4
Obviously, whether probable cause exists is fact specific.
But, because the opinion does not mention whether the purchase of
a large quantity of ice has any relevance to the production of
methamphetamine (and thus to probable cause), and given the
explicit reliance on odors (both when the ice was purchased and at
the site of the search), we read McKeever to hold that probable
cause existed for a search warrant when law enforcement officers,
familiar with the odors of cooking methamphetamine, identified such
odors as being emitted from a particular location.5 See also
4
The panel in McKeever was hearing the case on remand from our
en banc court. See United States v. McKeever, 905 F.2d 829 (5th
Cir. 1990) (en banc) (reversing prior panel on application of Fed.
R. Crim. P. 41). The earlier, vacated panel decision noted that
twice in one day the defendants had purchased 180 pounds of ice.
United States v. McKeever, 894 F.2d 712, 713 (5th Cir. 1990).
5
The homeowners rely on United States v. Engelking, No. 90-1060
(5th Cir. Sept. 6, 1990) (unpublished; disposition reported in
table at 914 F.2d 254), involving a claim that evidence obtained
pursuant to a search warrant issued "exclusively on the smell of
ether as the pivotal fact in establishing a belief that
methamphetamine was being manufactured" should have been excluded.
Engelking, slip op. at 9. Our court disagreed with the
characterization of the "pivotal fact":
We need not decide whether we would agree with
the Ninth Circuit that the smell of ether, standing
alone, would be insufficient to establish probable
cause for the issuance of a search warrant, or
whether the good-faith exception should apply,
because it is clear that the affidavit in this case
established probable cause for the issuance of a
search warrant.... [The] affidavit did not rely
solely on the smell of ether to establish probable
- 8 -

United States v. Sweeney, 688 F.2d 1131, 1135-36 (7th Cir. 1982)
(law enforcement officer's identification of odor of chemical
(methylamine) associated with production of methamphetamine, when
officer is familiar with odor, establishes sufficient basis for
neutral magistrate to issue warrant); cf. United States v. Mueller,
902 F.2d 336, 339-40 (5th Cir. 1990) (officer entitled to
protection of good-faith exception when executing warrant issued on
basis of officer's identification of methamphetamine odor and
bystander's statement that "the odor was methamphetamine"; such
warrant possesses adequate "indicia of probable cause" for good-
faith purposes).
The affidavit supporting the request for the search warrant
for the Lake Worth residence recited that an officer familiar with
the odors associated with the production of methamphetamine
(through experience and training) had "smelled a strong chemical
cause.
Id. at 9-10.
Our court's reference to the Ninth Circuit concerned United
States v. Tate, 694 F.2d 1217, 1221 (9th Cir. 1982) ("Tate I"),
vacated, 468 U.S. 1206 (1984), on remand, 795 F.2d 1487 (9th Cir.
1986) ("Tate II"), which held "that the smell of a noncontraband
substance [ether] having a number of legitimate uses, standing
alone does not establish probable cause to search a residence."
The Supreme Court vacated Tate I for further consideration in light
of United States v. Leon, 468 U.S. 897 (1984) (establishing good-
faith exception to exclusionary rule). In Tate II, the Ninth
Circuit held that the officers acted in good faith. 795 F.2d at
1488, 1492.
The homeowners assert that the issue they raise is the same as
that "noted, but not reached" in Engelking. But, the record does
not support the implication that the instant warrants were
requested solely because of the smell of ether.
- 9 -

odor associated with the manufacturing of amphetamines" apparently
coming from near the residence. He sought help in isolating the
source of the odor from another officer, and a TCNICU investigator
also was called. All three smelled the odor, and determined that
it originated from the residence. Later that day, a fourth officer
walked through the area, and he too "smelled a strong chemical odor
associated with the manufacturing of amphetamines." According to
this fourth officer, the "odor was very strong around the
residence".
Likewise, the affidavit requesting the search warrant for the
Grapevine residence stated that an officer familiar with odors
associated with methamphetamine production detected the "odor of an
amphetamine laboratory". That officer and another (who also was
familiar with the odor -- both officers were narcotics
investigators and had "been present on several occasions when
warrants were executed on operating amphetamine laboratories") both
"positively identified the suspected place ... as the source of the
odors."
In short, the affidavits did far more than simply refer to
odors. And, they described those odors, with specificity. Because
"[d]istinctive odors, detected by those qualified to know them, may
alone establish probable cause", the search warrants in issue
comport with the Fourth Amendment. See McKeever, 906 F.2d at 132.
As reflected in parts II.A.2. and 3. infra, additional discovery
would not create a material fact issue. And, TCNICU/Tarrant County
- 10 -

are entitled to judgment as a matter of law. Therefore, summary
judgment on this claim was proper.
2.
The homeowners challenge the protective order granted Tarrant
County and TCNICU against the homeowners' request for documents
relating to the execution of search warrants initiated in response
to the detection of odors associated with illegal drug
laboratories.6 The district court found that the defendants would
be subjected "to undue burden, expense and annoyance, and [that]
there would be a serious risk that the law enforcement efforts of
the defendants ... would be inappropriately compromised if the
discovery sought by plaintiffs were to be allowed."
Needless to say, a district court can "exercise its sound
discretion to restrict what materials are obtainable" in discovery.
6
The protective order motion related to the following document
request:
Any and all documents relative to applications
for "search and arrest" warrants, including but not
limited to the "search and arrest" warrants
themselves, the "search and arrest" affidavits, and
the returns indicating the results of the execution
of such warrants, since the formation of the
[TCNICU] in 1988, which
1. were initiated as a result of the
detection of "odors associated" with the operation
of an illegal drug manufacturing laboratory; and
a. were prepared at the request of or by
members of the [TCNICU], or
b. which resulted in the issuance of
search or arrest warrants in which personnel of the
[TCNICU] participated in executing such search or
arrest warrants in either a primary or secondary
capacity.
- 11 -

Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985), cert.
denied, 475 U.S. 1011 (1986); see also Fed. R. Civ. P. 26(c). And,
when reviewing a protective order, we review only for an abuse of
that discretion. Harris, 768 F.2d at 684. It is also well to
remember that
[d]etermining that the district court erred when it
entered the protective order does not end our
inquiry. In reviewing a district court's
curtailment of discovery under the Federal Rules of
Civil Procedure, errors made with regard to the
allowance of discovery do not require reversal
unless they result in substantial prejudice to a
party's case.
United States v. Garrett, 571 F.2d 1323, 1326 (5th Cir. 1978)
(citations omitted).
Even were we to assume that the district court abused its
discretion in issuing the protective order, no reversible error can
be found. The warrants passed Fourth Amendment muster; therefore,
the materials sought to be discovered would be unavailing. In sum,
because the homeowners cannot demonstrate "substantial prejudice"
as a consequence of the discovery curtailment, any error is
harmless. See id.
3.
For their final attempt to set aside the summary judgment
awarded Tarrant County and TCNICU, the homeowners challenge the
denial of their request for a Fed. R. Civ. P. 56(f) continuance.7
7
Rule 56(f) provides:
Should it appear from the affidavits of a party
opposing the motion [for summary judgment] that the
party cannot for reasons stated present by
affidavit facts essential to justify the party's
- 12 -

The request was filed on July 23, 1990; summary judgment was not
granted until six months later -- January 22, 1991. (The denial
was included in the opinion granting summary judgment.)8 In
support of the continuance request, homeowners' counsel stated (by
affidavit) that relevant documents remained in the possession of
Tarrant County and TCNICU, but he neither identified the documents
nor stated how they would help create a material fact issue (the
affidavit appeared to focus primarily on the search warrant
claim).9 In denying the continuance, the district court ruled that
opposition, the court may refuse the application
for judgment or may order a continuance to permit
affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other
order as is just.
8
This claim constitutes the only assignment of error that in
any way relates to the summary judgment for Tarrant County and
TCNICU on the training claim. The homeowners do not contend that
there is a material fact issue as to that claim on the record as it
stands. Put differently, in the light of the record, they do not
challenge the summary judgment on its merits as to that claim.
9
The affidavit provided in pertinent part:
At the present time virtually all of the
evidence material to [the homeowners'] claims
concerning the training and supervision of police
personnel employed by Defendants Tarrant County and
[TCNICU] remain in the exclusive possession of
these Defendants. Documents sought by Plaintiffs
in their Request for Production of Documents, and
Plaintiffs Amended Request for Production of
Documents, have yet to be produced by Defendants
and these documents are relevant not only to the
various issues of "practice" or "custom" of the
Defendants, but also bear on the issue of the
validity of the search warrants being challenged by
Plaintiffs.
Plaintiffs' counsel has sought to accommodate
defense counsel's concerns with respect to the
"confidentiality" of the discovery sought, but
- 13 -

there was no good reason for the failure to develop evidence on the
issues, especially those other than the search warrant claim.10
"We review the district court's decision to preclude further
discovery prior to granting summary judgment for abuse of
discretion." Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1441
(5th Cir. 1993) (citations omitted).
To obtain a continuance of a motion for
summary judgment in order to obtain further
discovery, a party must indicate to the court by
some statement, preferably in writing (but not
necessarily in the form of an affidavit), why he
needs additional discovery and how the additional
discovery will create a genuine issue of material
fact. The nonmoving party "may not simply rely on
vague assertions that additional discovery will
produce needed, but unspecified facts."
Id. at 1442 (citations omitted; emphasis in original).
these efforts have thus far been of no avail.
10
The district court stated:
This suit was filed in December 1989, and
plaintiffs have had ample opportunity to engage in
full discovery since then. The document production
request to which plaintiffs refer is limited to
documents that indicate the results of execution of
search warrants, since the formation of TCNICU,
that were initiated ... because of the detection of
odors associated with the operation of an illegal
drug manufacturing laboratory. Obviously, any
inability of plaintiffs to acquire documents
bearing on that limited subject provides no excuse
for failure of plaintiffs to develop evidence in
response to the motion for summary judgment, if any
was available to be had. Plaintiffs have known
since December 1989, when TCNICU and Tarrant filed
their first motion for summary judgment, that there
was a need to develop and put in the record
whatever summary judgment evidence could be
developed in support of plaintiffs' claims.
- 14 -

We have already upheld summary judgment on the search warrant
claim; only the training claim remains. (Again, insofar as TCNICU
and the County are concerned, the summary judgment on that claim is
not challenged on the merits; the challenge rests only on the
continuance denial.) Therefore, as for the training claim, and
keeping in mind the specificity required for obtaining a Rule 56(f)
continuance, the refusal to grant a continuance did not constitute
an abuse of discretion. As noted, the homeowners had ample time in
which to undertake discovery as to the defendants' training
practices. Undaunted by pending, dispositive motions, they
apparently filed no document requests relating to training,
although, as noted, they apparently did depose TCNICU officials.
Perhaps for this reason, "[t]he affidavit filed by [the
homeowners'] counsel did not state how further discovery would have
aided his cause of action, and thus, [the homeowners have] failed
to demonstrate that further discovery would be anything other than
a `fishing expedition.'" See id. at 1443 (emphasis in original).
The homeowners contend that they had an arrangement with the
defendants to not seek additional discovery pending disposition of
the protective order motion. From this, they contend that the 22
days between the protective order and summary judgment were
inadequate for discovery. The record, however, is singularly
devoid of evidence that there was some arrangement between the
parties to stay all discovery pending disposition of the protective
order motion. If anything, the record implies that the homeowners'
counsel made a unilateral decision to forego discovery pending the
- 15 -

disposition of that motion.11 And, as discussed, the homeowners,
in their supplemental response to the summary judgment motion,
objected only to consideration of the search warrant claim; they
represented that they "no longer have objection to the Court's
consideration" of other issues. Finally, as discussed infra, the
mere complaint that more discovery is needed, by itself, does not
justify a Rule 56(f) continuance.
The homeowners also contend that they were entitled to rely on
the scheduling order, which permitted discovery to continue until
May 1991 (summary judgment was granted that January). In assessing
this contention, we proceed from an obvious first principle: "Rule
56 does not require that any discovery take place before summary
judgment can be granted; if a party cannot adequately defend such
a motion, Rule 56(f) is his remedy." Washington v. Allstate Ins.
11
The homeowners have supplemented the record with a letter from
their counsel to counsel for Tarrant County and TCNICU, which,
according to the homeowners, proves the alleged agreement. The
letter, drafted May 22, 1990, purported to confirm an agreement,
which apparently provided that the defendants would have 14 days in
which to respond to the document request pertaining to search
warrants issued on the basis of odor, and that the homeowners' time
to respond to the summary judgment motion would be extended for 21
days following either the production of such documents or
resolution of an objection to their production by the court.
We fail to see how this letter supports the homeowners'
position. As discussed, the issue of the production of search
warrants did not preclude discovery on the training claim (and
there were pending dispositive motions on that claim). Moreover,
the district court, by the homeowners' own calculation, waited
three weeks after granting the protective order before entering
summary judgment. See also Carriere v. Sears, Roebuck and Co., 893
F.2d 98, 102 (5th Cir.) (affirming denial of Rule 56(f)
continuance, recognizing that "plaintiffs were not ... entitled to
have the trial judge rule on the motions in any particular order"),
cert. denied, 498 U.S. 817 (1990).
- 16 -

Co., 901 F.2d 1281, 1285 (5th Cir. 1990) (citations omitted;
emphasis added). Thus, that more time was scheduled for discovery
does not, by itself, defeat summary judgment. The homeowners must
satisfy Rule 56(f), a rule which "may not be invoked by the mere
assertion that discovery is incomplete; the opposing party must
demonstrate `how the additional time will enable him to rebut the
movant's allegations of no genuine issue of material fact.'" Id.
at 1286 (citations omitted); see also id. ("[T]he nonmovant's
`casual reference to the existence of ongoing discovery falls far
short of showing how the desired time would enable it to meet its
burden in opposing summary judgment.'") (quoting Pasternak v. Lear
Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir. 1986)).
The homeowners cannot inform us with any degree of specificity
how additional discovery will create a material fact issue. Their
Rule 56(f) continuance request, as the district court correctly
perceived, turned solely on their inability to obtain the documents
relating to the search warrant claim, only one of the two claims in
issue. Moreover, the record suggests that the homeowners had not
been diligent in pursuing discovery. The summary judgment motion
was filed in April 1990; the homeowners' inability to identify a
material fact issue by January 1991 (and their apparent failure to
request any documents other than those pertaining to the warrants),
much less identify how additional discovery would lead to the
creation of such an issue, reflects a lack of diligence in
discovery. Obviously, this colors our view of a Rule 56(f)
continuance request. See International Shortstop v. Rally's, Inc.,
- 17 -

939 F.2d 1257, 1267 (5th Cir. 1991), cert. denied, ___ U.S. ___,
112 S. Ct. 936 (1992); see also C-B Kenworth, Inc. v. General
Motors Corp., 118 F.R.D. 14, 16 (D. Me. 19897) ("Only parties who
have diligently pursued discovery are entitled to the protections
afforded under Rule 56(f)."), cited and quoted with approval in
International Shortstop, 939 F.2d at 1267.
As noted, the homeowners undertook no discovery of which we
are aware, other than the document request relating to search
warrants, for more than one year; only shortly before the summary
judgment did they apparently depose some TCNICU officials. The
district court did not abuse its discretion in denying the Rule
56(f) continuance.
B.
The homeowners' final protest is to the summary judgment
awarded sua sponte to the Cities. They assert that because neither
City moved to dismiss (much less for summary judgment), there was
no motion which could be converted into one for summary judgment;12
and, in any event, that the court's failure to provide adequate
notice prior to entering summary judgment precluded its doing so.
The first assertion is simply wrong. "[D]istrict courts are
widely acknowledged to possess the power to enter summary judgments
sua sponte". Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986);
see also NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957, 965
12
Although Grapevine moved to dismiss the complaint in its
answer, asserting, inter alia, that the complaint failed "to allege
any policy, practice or custom on the part of the [City] which
caused the alleged deprivation of civil rights", it did not file a
separate motion to that effect.
- 18 -

(5th Cir. 1991) ("Rule 56(c) ... permits a court to grant summary
judgment in favor of a party that did not request it"), cert.
denied, ___ U.S. ___, 112 S. Ct. 873 (1992).
Of course, the power to enter summary judgment sua sponte is
tempered by the requirement to provide prior notice. See Celotex,
477 U.S. at 326 (noting power of district court to enter summary
judgment sua sponte, "so long as the losing party was on notice
that she had to come forward with all of her evidence"); Judwin
Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 436-
37 (5th Cir. 1992) ("A district court may grant a motion for
summary judgment sua sponte, provided that it gives proper notice
to the adverse party. Judwin was entitled to receive 10 days
notice before the district court granted summary judgment.")
(citations omitted); NL Indus., 940 F.2d at 965 ("the district
court in this case could not grant summary judgment against NL
without notifying NL at least ten days in advance that it intended
to do so"); see also Fed. R. Civ. P. 56(c) (requiring that summary
judgment motion be served "at least 10 days before the time fixed
for the hearing"). Thus, we turn to the inadequate notice
assertion. The Cities did not file summary judgment motions, and
the court did not notify the homeowners that it was considering
summary judgment for the Cities. Therefore, the homeowners did not
receive the notice to which they were entitled.13
13
Lake Worth contends that the homeowners were on notice because
the "motion for summary judgment filed by [Tarrant County and
TCNICU] raised the very issues ruled upon by the district court."
But, obviously, the issues relating to the Cities' training of
their officers would turn on their own facts, which would be
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"This court has strictly enforced the ten day notice
requirement of Rule 56(c)." Powell v. United States, 849 F.2d
1576, 1579 (5th Cir. 1988) (footnote omitted).
[T]he strict enforcement of the notice requirement
is necessary because a summary judgment is a final
adjudication on the merits. Since a summary
judgment forecloses any future litigation of a case
the district court must give proper notice to
insure that the nonmoving party had the opportunity
to make every possible factual and legal argument.
Id. at 1579 (citation and footnote omitted). In this spirit, we
have vacated summary judgments and remanded for further proceedings
where the district court provided no notice prior to granting
summary judgment sua sponte, even where "summary judgment may have
been proper on the merits". E.g., Judwin, 973 F.2d at 437.
Despite the strictness with which we enforce the notice
requirement, "the harmless error doctrine applies to lack of the
notice required by Rule 56(c)." Powell, 849 F.2d at 1580; see also
Western Fire Ins. Co. v. Copeland, 786 F.2d 649, 653 (5th Cir.
1986); Norman v. McCotter, 765 F.2d 504, 508 (5th Cir. 1985). The
question is whether the training claim sua sponte summary judgment
without notice constituted harmless error.14
different from those relating to TCNICU's training procedures. In
any event, because of our disposition of this issue, we need not
reach this contention.
14
As noted, the Cities were not parties to the search warrant
claim. That claim related only to a custom or policy by Tarrant
County and TCNICU. But, even if they had been, the failure to give
notice prior to entering summary judgment against the homeowners on
that claim would be harmless in the light of our holding on that
claim.
We also note again that the absence of notice is the only
challenge by the homeowners to the summary judgment for the Cities.
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It appears clear that error in notice is
harmless if the nonmoving party admits that he has
no additional evidence anyway or if, as in Norman
v. McCotter, the appellate court evaluates all of
the nonmoving party's additional evidence and finds
no genuine issue of material fact.
Powell, 849 F.2d at 1582.
The situation in this appeal does not mirror that in Norman v.
McCotter; the homeowners have not submitted summary judgment
evidence in an effort to prove the harmful nature of the error. Of
course, regarding the Cities, they also have not admitted that they
have no additional evidence to present.
But, such an admission is not required to find the error
harmless. Resolution Trust Corp. v. Sharif-Munir-Davidson Dev.
Corp., 992 F.2d 1398 (5th Cir. 1993) expanded Powell slightly:
When there is no notice to the nonmovant,
summary judgment will be considered harmless if the
nonmovant has no additional evidence or if all of
the nonmovant's additional evidence is reviewed by
the appellate court and none of the evidence
presents a genuine issue of material fact.
Id. at 1403 n.7 (citing Powell; emphasis added).
It does not appear that the homeowners have any additional
evidence to offer regarding the Cities' liability; they do not
identify any, and we find none in our review of the record.15 In
They do not contend that the record, as it stands, establishes a
material fact issue on the training claim as to the Cities.
15
Grapevine posits an additional basis for finding harmless
error, asserting that "a municipal entity cannot be held liable for
failing to train or supervise its officers when the individual
officers have been exonerated of any underlying constitutional
violation." While this is true, see City of Los Angeles v. Heller,
475 U.S. 796, 798-99 (1986) (per curiam), the City cannot avail
itself of this defense. Some of the plaintiffs in the instant case
sued two Grapevine police officers involved in one of the searches
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fact, in Leatherman I, our court addressed a similar concern: the
district court's sua sponte dismissal of the Cities because of the
homeowners' failure to satisfy the heightened pleading requirement.
Our court found that
[a]lthough we are troubled by the absence of
notice preceding the district court's sua sponte
dismissal of the claims against the ... Cit[ies]
..., we nevertheless affirm the dismissal of those
claims as well. Plaintiffs do not contend in this
court that they are prepared to allege specific
facts in an amended complaint so as to render it in
compliance with our heightened pleading
requirement. We conclude, therefore, that the
district court's failure to notify plaintiffs of
its intention to dismiss the claims against the
nonmovants, in the context of this case, was
harmless. Cf. Powell v. United States, 849 F.2d
1576, 1580-82 (5th Cir. 1988) (applying harmless
error test to the notice requirement under Federal
Rule of Civil Procedure 56 [summary judgment]).
Leatherman I, 954 F.2d at 1058 (footnotes omitted; brackets in
original).
The situation for this second appeal differs, but only
slightly; just as the homeowners were unable earlier to allege
specific facts so as to comply with the heightened pleading
standard, they now fail to specify any fact issue which should
prevent summary judgment -- or for that matter, even identify how
at issue. One was granted judgment as a matter of law (largely
because the plaintiffs did not sue him in his supervisory
capacity), while the other obtained a jury verdict on the issue of
qualified immunity. Our court affirmed. Andert v. Bewley, No. 92-
1467 (5th Cir. July 21, 1993) (unpublished) (disposition reported
in table at 998 F.2d 1014). Needless to say, qualified immunity
does not mean that no constitutional violation occurred -- only
that the officer is immune. And, it is well-established that an
individual officer's qualified immunity does not protect a
municipality. See Owen v. City of Independence, 445 U.S. 622, 650-
58 (1980).
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additional discovery would yield such an issue. Because the
homeowners have not identified a material fact issue regarding
their training claim against the Cities, it would be a "useless
procedure to reverse the [d]istrict [c]ourt because it did not
allow ten days to elapse" before entering summary judgment. See
Oppenheimer v. Morton Hotel Corp., 324 F.2d 766, 768 (6th Cir.
1963); see also Powell, 849 F.2d at 1581 (discussing Oppenheimer
and subsequent Sixth Circuit decisions). Accordingly, the failure
to provide notice was harmless.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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