IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 95-10380




ELLEN GAIL BENNETT
                                          Plaintiff-Appellee,

                               versus

PRESLEY PIPPIN JR., Individually and as
Sheriff of Archer County, in his official
capacity (as Sheriff of Archer County, in his
official capacity deleted as per Order dated
11/16/92 - leaving Presley Pippin, Jr.
Individually as dft) (Presley Pippin, Jr., as
Sheriff of Archer County, in his official
capacity, reinstates as per oral order of
Judge Joe Kendall during non-jury trial
2/10/95)
                                        Defendant-Appellant,

and

ARCHER COUNTY TEXAS,
                                          Movant-Appellant.


           Appeal from the United States District Court
                for the Northern District of Texas


                         January 24, 1996

Before REAVLEY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

      In this case, a Texas sheriff and a county appeal a judgment

awarding damages to a murder suspect that the sheriff raped.    We

affirm the award against the sheriff individually, reverse the

judgment against the county, and remand for a new trial.


                                 1
                                 I

     We describe the pre-trial proceeding in some detail, given the

unusual procedural posture that this case has reached.        In a

complaint filed in June of 1992, Ellen Bennett sued Presley Pippin

in the Western District of Texas under 42 U.S.C. § 1983 and Texas

common law and demanded trial by jury.   The complaint named Pippin

in his individual capacity and in his official capacity as Sheriff

of Archer County, Texas. It alleged that the Sheriff raped Bennett

in the course of a homicide investigation. It further alleged that

the Sheriff was “the final policy maker for the county for matters

of law enforcement” and that the Sheriff’s acts were “the official

policy and/or custom of Archer County, Texas.”

     Three weeks later, attorney William W. Krueger, III, of the

law firm of Ludlum & Ludlum, filed a motion to dismiss under Fed.

R. Civ. P. 12(b)(6) on behalf of the Sheriff individually and in

his official capacity.   A colloquy between defense counsel and the

court at the eventual trial established that the Sheriff and Archer

County had agreed initially that Krueger would represent them both

at least through the filing of motions and that any conflict of

interest in that joint representation would be waived.

     The case was transferred to the Northern District of Texas and

initially assigned to Judge Belew.   Judge Belew denied all motions

except the motion to dismiss with regard to the Sheriff in his

official capacity.   Referring to this court’s heightened pleading

standard for claims under section 1983, Judge Belew held that the

complaint failed to state facts sufficient to allow a court to find


                                 2
that the Sheriff’s alleged rape was pursuant to a policy or custom

of Archer County as required by Monell v. New York City Department

of Social Services, 

, 694 (1978). Judge Belew reasoned

that a single, isolated incident could not constitute a policy

under Monell.

     Shortly after discovery began with problems of insurance

coverage in the background, Krueger and Ludlum & Ludlum withdrew as

the attorney for the Sheriff and the Sheriff’s personal attorney

appeared    for    him.         After    various       continuances      and   further

discovery, Judge Belew granted leave to James Ludlum, also of

Ludlum & Ludlum, to replace the Sheriff’s personal counsel. Ludlum

then moved to reopen discovery on behalf of “Presley Pippin, Jr.,

Individually      and    as    Sheriff    of    Archer    County,    Texas,    in    his

Official Capacity.” As we will explain, however, Archer County was

not at this time a party and no one thought that they were.

     Five days before trial was to have begun, the court entered an

order,    agreed    to    by    the     parties,   that    the    case     proceed    to

arbitration under 28 U.S.C. §§ 651-58.                 The order stated that the

parties waived their rights to a jury trial if either requested a

trial de novo under 28 U.S.C. § 655.                      The arbitration panel

returned an award against “Defendant, PRESLEY L. PIPPIN, JR.”

Pippin requested a trial de novo under section 655.                      There was no

mention of Archer County.           By this time, a portion of Judge Belew’s

docket had been assigned to Judge Kendall, who set for trial on

Friday, February 10, 1995.

     On    the    morning      of   February     10,    Judge    Kendall    began    the


                                            3
proceedings   by   announcing      his       inclination    to   reconsider      the

12(b)(6) dismissal of Archer County.              Judge Kendall stated that

Judge   Belew’s    dismissal   had    been       based   upon    this     circuit’s

heightened pleading standard for section 1983 cases, and that the

Supreme Court had held that standard could not be applied to a

claim against a county Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 

(1993).                      Judge

Kendall then asked the parties for comment on his proposed course

of action.    Ludlum conceded that the court was correct regarding

the effect of Leatherman upon the case but stated that he had an

ethical   obligation    to   inform      Archer    County    that   it     was   now

potentially liable for a damage judgment.                Ludlum further stated

that the interests of the Sheriff individually and the County might

conflict on the issue of Monell policy or custom.                       Ludlum also

stated on several times that he was representing the Sheriff only

in   an individual     capacity.      Ludlum      suggested      that    the   court

continue the case for a week to allow the County time to consider

whether it wanted a separate attorney.

      Judge Kendall responded by expressing a desire to begin

testimony that morning. While agreeing that a conflict of interest

was possible in this type of lawsuit, the court saw no possibility

that such a conflict would arise because the defense’s pretrial

filings had announced an intention to defend on the grounds that

the sexual intercourse between Bennett and Pippin had occurred

outside the scope of Pippin’s duties as Sheriff.                  Finally, Judge

Kendall concluded that Ludlum did represent both the Sheriff and


                                         4
Archer County, highlighting that Ludlum & Ludlum had initially

filed the 12(b)(6) motion on behalf of the Sheriff individually and

in his official capacity.1

     After this exchange, Judge Kendall made the following rulings

from the bench.   First, he stated that the plaintiff would begin

her case that day.   Second, he would grant a 30 minute recess to

allow Ludlum to notify Archer County officials of the reinstatement

of the lawsuit against the Sheriff in his official capacity.

Third, the judge stated that, because this was a bench trial, he

would continue the case, reopen discovery, and recall witnesses for

later cross-examination, should the County wish to do so.        The

judge reemphasized that the trial was to the court, and that he

could be flexible as a result, but that trial would begin that

morning.

     The district court then granted a recess.2          When Ludlum

returned from the recess, the trial commenced.        Testimony from

various witness established the following undisputed facts.      Ms.

Bennett shot her husband in the chest after a violent domestic

dispute in which Mr. Bennett had ripped the phone out of the wall,

assaulted Ms. Bennett, then pointed a gun at her.    At the time, the

Bennetts were renting a house in Archer County.     Ms. Bennett drove


        1
         The colloquy on this latter point was extended. Ludlum
repeatedly   stated  that   he  represented   only  the   Sheriff
individually, and the district court repeatedly disagreed.
    2
       At oral argument to this court, Archer County conceded that
the County Judge and Attorney came to the courthouse and sat in the
audience section of the courtroom to observe much of the trial,
which took place on the afternoons of February 10 and 17.

                                5
her pickup truck to a nearby convenience store located across the

county   line   in   Wichita   Falls       and    called   the   Wichita   Falls

authorities. The Wichita Falls authorities arrested and handcuffed

Ms. Bennett at the store, impounded the pickup truck, and notified

the Archer County Sheriff’s Office of the incident. Sheriff Pippin

radioed Wichita Falls and instructed them to hold Ms. Bennett until

he arrived to take custody of her.

     After retrieving Ms. Bennett from Wichita Falls, the Sheriff

drove her back to the house.       By this time, Archer County Deputy

Sheriffs had arrived to secure the scene and to take Mr. Bennett to

the hospital.    After receiving a tour of the site from a Deputy,

the Sheriff left to attend to a brush fire.            A Deputy Sheriff drove

Ms. Bennett to the Archer County Sheriff’s Office, where she was

fingerprinted, photographed, and given Miranda warnings. After Ms.

Bennett described Mr. Bennett’s assault and the subsequent shooting

to the Deputy, she signed a statement.                 The Deputy asked Ms.

Bennett not to leave the County without the authorization of the

Sheriff’s Office and drove her home.             Ms. Bennett then left briefly

in her husband’s truck to find a phone to call a friend in Austin

for consolation.

     The Sheriff, in the meantime, attended to the brush fire, then

traveled to the hospital and learned that Mr. Bennett would not be

released from the hospital that evening.                   He returned to the

Bennett household, found no one there, and sat on the porch until

Ms. Bennett returned.     The Sheriff testified that he had at least

two reasons for returning to the house.                The first was that he


                                       6
wanted to assuage Ms. Bennett’s previously expressed concern that

Mr. Bennett’s friends would attack her as a result of the shooting.

The second was that he was mildly aroused by the manner in which

Ms. Bennett had touched him as he lit a cigarette for her during

the drive from Wichita Falls to her house.       At the time of his

return to the house, the Sheriff was wearing his badge and gun.

     At this point, the testimony of Ms. Bennett and the Sheriff

diverged.     According to Ms. Bennett, when she returned to the

house, the two sat on the porch drinking coffee while the Sheriff

questioned her about the shooting incident.       After a while, the

Sheriff touched her on the leg in a way that made her feel

uncomfortable.     In response, Ms. Bennett stated that she was tired

and that she wished to answer any more questions the next day.   Ms.

Bennett saw the Sheriff off the porch, then went upstairs to bed

and fell asleep.    She awoke to find the Sheriff standing naked over

her and attempting to remove her clothes.    When she protested, the

Sheriff responded that he was the sheriff and could therefore do

what he pleased.      When she persisted in objecting, the Sheriff

stated, “What are you complaining about?     I could have thrown you

in jail and sorted it out later.”        The Sheriff then raped Ms.

Bennett.    Afterwards, the Sheriff ordered her to take a shower and

not to tell anyone of the incident.

     According to the Sheriff, Ms. Bennett returned shortly after

his arrival at the house, and the two sat on the porch discussing

their backgrounds and the difficulties in both of their marriages.

The shooting that had occurred a few hours earlier did not happen


                                   7
to come up in conversation.    After a while, the Sheriff helped Ms.

Bennett remove her boots.    The Sheriff then said, “Why don’t we go

get on the bed?”    After Ms. Bennett put up what the Sheriff in a

grand jury proceeding called “token verbal resistance,” the two

went into the house and had sex.       At no point did the Sheriff

threaten Ms. Bennett or otherwise coerce her.

       Two days later, after receiving the Sheriff’s permission to

retrieve her pickup truck and to move her residence, Ms. Bennett

left Archer County for Austin.    She was subsequently no-billed by

an Archer County grand jury.    She reported the rape to the Austin

authorities, and the Texas Rangers arrested the Sheriff. An Archer

County grand jury, nine members of which the Sheriff knew by name,

subsequently no-billed the Sheriff.

       At the close of the evidence, the district court ruled for the

plaintiff from the bench and later filed written findings of fact

and conclusions of law.   The court found that the Sheriff raped Ms.

Bennett in the manner described in her testimony, and that in doing

so the Sheriff deprived Ms. Bennett of her substantive due process

right to bodily integrity.    It held that the rape was under color

of state law and that, because the Sheriff was the final policy

maker of Archer County under Pembaur v. City of Cincinnati, 

, 481-82 (1986), the County was liable for the rape.     The

court also found that the Sheriff’s actions violated state tort

law.    The court then awarded one million dollars in compensatory

damages and an equal amount in punitive damages and held the County

jointly and severally liable for the compensatory damages.       The


                                  8
court also awarded attorneys’ fees and prejudgment interest.

      After the court issued its findings of fact and conclusions of

law, Archer County moved to intervene and for a new trial.                    The

Sheriff individually and in his official capacity also moved for a

new trial.      The court denied these motions.

      In this appeal, Archer County argues that the district court’s

reinstatement of the official capacity suit on the morning of trial

violated its due process rights to notice, opportunity to be heard,

and   legal    representation.       The     County   also   argues   that    the

reinstatement violated the County’s right to a trial by jury, and

that the district court abused its discretion in denying its motion

to intervene.        Next, the County contends that the district court

erred in holding it liable under state tort law.                 Further, the

County claims that the district court erroneously held that the

Sheriff’s actions were under color of state law and constituted the

policy or custom of Archer County.            Finally, the County contends

that the original 12(b)(6) dismissal of the complaint as to the

Sheriff in his official capacity was correct, and asks us to

reverse the reinstatement order and render judgment in its favor.

      In a separate brief, the Sheriff repeats many of the arguments

that the County makes and essentially argues that the County has

been treated unfairly.         It also argues that the district court’s

finding that the Ms. Bennett did not consent to sex was clearly

erroneous, that the district court erred in certain evidentiary

rulings,      that   the   Judge   was   biased,   and   that   the   award    of

attorneys’ fees was too high.


                                         9
                                     II

      We pause to dispel one source of confusion that persists in

this litigation.     Under Hafer v. Melo, 

(1991), Ms.

Bennett’s suit against the Sheriff in his official capacity is a

suit against Archer County directly in everything but name.              When

a plaintiff sues a county or municipal official in her official

capacity, the county or municipality is liable for the resulting

judgment and, accordingly, may control the litigation on behalf of

the officer in her official capacity.         A suit against the Sheriff

in his official capacity is a suit against the County.               When Ms.

Bennett sued the Sheriff in his individual and official capacity,

she sued two defendants:         the Sheriff and the County.         As their

briefs illustrate, the defendants have apparently considered this

litigation      as   involving    three   parties:    (1)      the    Sheriff

individually; (2) the Sheriff in his official capacity; and (3) the

County.   The defendants have apparently equated the interests of

the   Sheriff    individually    with   the   interests   of   the    Sheriff

officially.     Under Hafer, such is not the case.        We will refer to

Ms. Bennett’s suit against the Sheriff in his official capacity as

a suit against Archer County.

      It follows that Archer County’s contention that the district

court erred in denying its post-trial motion to intervene is

without merit. When the district court reinstated the suit against

the Sheriff in his official capacity, the County again became a

party to this lawsuit.      At the risk of stating the obvious, one

already a party to a lawsuit may not, at least it certainly need


                                     10
not, intervene in the same lawsuit. We affirm the district court’s

denial of the County’s motion to intervene.



                                  III

     The County contends that we should reverse and render judgment

in its favor because the complaint failed to state sufficient facts

to support a cause of action and because Ms. Bennett failed to

prove at trial that the Sheriff’s rape constituted the County’s

policy or custom under Monell v. New York City Department of Social

Services, 

, 694 (1978).         We find neither of the

County’s arguments persuasive.3

                                   A

     The County argues that the complaint failed to allege facts

sufficient to support a claim against it.    We refuse to reach this

issue.

     The reinstatement order was functionally identical to a denial

of a motion to dismiss, and this effective refusal to grant a

12(b)(6) dismissal was followed by a final judgment after a trial

on the merits.   After a trial on the merits, the sufficiency of the

allegations in the complaint is irrelevant.    A district court must

deny a motion to dismiss under Rule 12(b)(6) unless the complaint

fails to state any set of facts upon which relief could be granted.

Conley v. Gibson, 

, 45-47 (1957).          Rule 12(b)(6)


     3
        We reach these arguments in spite of the fact that, as we
will explain, we reverse the judgment against the County and remand
for a new trial because the County has asked us to reverse and
render judgment in its favor on these two grounds.

                                  11
measures the sufficiency of the plaintiff’s allegations.   When the

plaintiff has prevailed after a full trial on the merits, a

district court’s denial of a Rule 12(b)(6) dismissal becomes moot.

The plaintiff has proved, not merely alleged, facts sufficient to

support relief.   Any pleading defect may be cured by a motion under

Fed. R. Civ. P. 15(b), and the sufficiency of the plaintiff’s

evidence may be tested by an appeal on that issue.

     At least seven circuits hold that “denial of summary judgment

is not properly reviewable on an appeal from a final judgment

entered after trial.”    Whalen v. Unit Rig, Inc., 

,

1250 (10th Cir. 1992) (collecting cases), cert. denied, 

(1993); accord, Chesapeake Paper Products Co. v. Stone &

Webster Engineering Corp., 

, 1234-37 (4th Cir. 1995);

Watson v. Amedco Steel, Inc., 

, 277 (7th Cir. 1994).

The arguments for not considering an appeal from a denial of a Rule

12(b)(6) dismissal after a trial on the merits are stronger than

those for not considering a refusal to dismiss under Rule 56, given

the ease with which a plaintiff may amend a complaint after

judgment in order to conform to the evidence.   See Fed. R. Civ. P.

15(b).4

                                 B

     4
        There is dictum stating that appellate courts should hear
such appeals in Wilson v. First Houston Investment Corp., 

, 1238 (5th Cir. 1978) (quoting Charles A. Wright et. al.,
Federal Practice & Procedure § 1476, at 560 (2d ed. 1990)),
vacated, 

(1979).     This dictum takes place in the
discussion of the different question of whether filing an amended
complaint after an initial Rule 12(b)(6) dismissal waives the right
to appeal the dismissal after final judgment. We are not bound by
this dictum and refuse to follow it in this case.

                                 12
            Citing Monell v. Department of Social Services, 

, 688-91 (1978), the County argues that the district court

erroneously held it jointly and severally liable for Sheriff

Pippin’s rape because the Sheriff’s actions did not constitute a

policy of the County.        The County contends that the Sheriff’s

actions could not be County policy because they violated well-

established County policy.

      Our cases make clear that under Monell, “a single decision may

create municipal liability if that decision were made by a final

policymaker responsible for that activity.” Brown v. Bryan County,

Oklahoma,    

,    1183    (5th       Cir.    1995)   (emphasis     in

original); see also City of St. Louis v. Praprotnik, 

,

124-25 (1988); Turner v. Upton County, Texas, 

, 136-37

(5th Cir. 1990), cert. denied, 

(1991).                     When a final

policy maker makes the relevant decision, and that decision is

within the sphere of the policy maker’s final authority, “the

existence of a well-established, officially-adopted policy will not

insulate    the   municipality    from        liability     where    a    policymaker

herself departs from these formal rules.”                     Gonzales v. Ysleta

Independent School District, 

, 754 (5th Cir. 1993).

State law determines whether a particular individual is a county or

municipality final decision maker with respect to a certain sphere

of   activity.      

;   Jett    v.   Dallas

Independent School District, 

, 737 (1989); Doe v. Rains

County Independent School District, 

, 1407 (5th Cir.

1995).


                                         13
     In this circuit, “[i]t has long been recognized that, in

Texas, the county sheriff is the county’s final policymaker in the

area of law enforcement, not by virtue of the delegation by the

county’s governing body but, rather, by virtue of the office to

which the sheriff has been elected.”               

(citing and

quoting from Familias Unidas v. Briscoe, 

, 404 (5th

Cir. 1980)).5          The Turner court held a county liable for the

actions of its sheriff in planting evidence and conspiring to force

the plaintiff to plead guilty of the resulting charges, concluding

that “[w]hen the official representing the ultimate repository of

law enforcement power in the county makes a deliberate decision to

abuse that power to the detriment of its citizens, county liability

under       section    1983   must    attach,     provided    that    the   other

prerequisites         for   finding   liability    under     that    section   are

.

     In this case, the Sheriff’s actions were those of the County

because his relationship with Bennett grew out of the attempted

murder investigation and because, as we will explain, he used his

authority over the investigation to coerce sex with her.                 The fact

that rape is not a legitimate law enforcement goal does not prevent

the Sheriff’s act from falling within his law enforcement function.

See 

(holding a Texas county sheriff


        5
          The Sheriff’s role in the County makes irrelevant the
County’s argument that no County official other than the Sheriff
knew of the Sheriff’s intention to rape Bennett. Under the Archer
County power structure, no one had state law authority to contest
the Sheriff’s use of his power to place himself in a position to
rape Bennett.

                                        14
liable for planting evidence, presumably not a legitimate law

enforcement goal).



                                       IV

     Certain of the County’s other arguments are more persuasive.

In particular, the County was denied its right to a jury trial, and

we therefore reverse the judgment against it and remand for a new

trial.

     Under Fed. R. Civ. P. 54(b), the district court had the power

to reconsider and reverse its prior 12(b)(6) dismissal of the

claims against the Sheriff in his official capacity.               Rule 54(b)

provides that, in the absence of an express entry of judgment with

regard   to   a   dismissed   party,    a   12(b)(6)   dismissal    does   not

“terminate the action as to any of the claims or parties, and the

order or other form of decision is subject to revision at any time

before the entry of judgment adjudicating all the claims and the

rights and liabilities of all the parties.”        In this case, however,

the precipitous manner in which the district court proceeded after

its reversal denied the County its right to a jury trial.

     The complaint included a demand for a jury trial.             Under Fed.

R. Civ. P. 38(d), the County could rely on that demand, and Ms.

Bennett could not withdraw it without the consent of all parties

subject to trial on the merits, including the County. See Pinemont

Bank v. Belk, 

, 235 (5th Cir. 1984).         When the district

court reinstated the County on the morning of trial, the County

returned to the case with its right to a jury trial.          The district


                                       15
court,    however,   proceeded   with    a   bench   trial   an   hour   after

reinstating the County.

     Ms. Bennett contends that the County waived its right to a

jury trial first, by agreeing to an arbitration conditioned upon a

waiver of a jury trial, and second, by proceeding with the bench

trial. Regarding the second alleged waiver, Ms. Bennett points out

that the County Judge and Prosecutor were spectators to the bench

trial knowing that the district court thought that the County had

consented to a bench trial with Ludlum & Ludlum as the County’s

attorney.    Ms. Bennett relies on Casperone v. Landmark Oil & Gas

Corp., 

, 116 (5th Cir. 1987), in which we held that a

party’s participation in a bench trial without objection waived its

previously established right to a jury trial.

     We do not agree. In Casperone, the waiving party participated

in the trial; in this case, the district court reinstated the

County and proceeded to a bench trial one hour later, giving the

County an insufficient opportunity to assert its rights.                 By the

time the County Judge and Prosecutor arrived in the courtroom,

trial to the court was well underway.        Any attempt by the County to

assert its right to a jury trial at that time would have been

futile.    The judge had already repeatedly stated that this was to

be a bench trial and it was to start testimony that day.                    The

judge’s flexibility on issues of reopening discovery and recalling

witnesses by necessity assumed that the trial would be to the

court.    The County did not waive its right to a jury trial by

failing to make a futile motion.


                                    16
     Nor   did    the   County   participate   in   this   trial   via   the

representation of Ludlum & Ludlum.        Ms. Bennett notes, correctly,

that Fed. R. Civ. P. 54(b) provides that a party dismissed under

Rule 12(b)(6) remains in the case until final resolution of all

claims as to all parties, unless the district court expressly

directs entry of judgment with regard to that party.          Ms. Bennett

interprets Rule 54(b) to mean that the County remained a party to

this lawsuit throughout the entirety of the proceedings.                 She

argues that Ludlum & Ludlum undertook to represent the County at

the 12(b)(6) stage of the litigation, and that because the County

remained a party, Ludlum & Ludlum continued to represent the County

thereafter.      Ms. Bennett points out that although Ludlum & Ludlum

moved to withdraw from representation of the Sheriff individually,

the firm never asked to withdraw from representing the County.

Accordingly, when the district court reinstated the County as a

party, Ludlum & Ludlum still represented the County.          Ms. Bennett

then asks us to treat attorney Ludlum’s protestations that he

represented the Sheriff only in his individual capacity as a motion

to withdraw from representation, which, given the late date of the

motion, the district court could deny.         When attorney Ludlum and

his associates proceeded to try the case, they did so on behalf of

the County, placing this case on all fours with Casperone.

     Our disagreement with Ms. Bennett begins with her construction

of Rule 54(b).     We agree with Ms. Bennett that Rule 54(b) kept the

County in the lawsuit in the sense that Ms. Bennett could not

appeal the dismissal at that time.       But we disagree that the County


                                    17
remained a “party” in the sense that it had to request admissions,

ask and answer interrogatories, notice and attend depositions, file

motions,    and    otherwise       litigate      the   case,   all   against    the

possibility that it might be reinstated as a party and be required

to go to trial that same morning.                Such a construction of Rule

54(b), its plain awkwardness aside, would waste resources of the

judiciary and the parties.           A defendant is entitled to rely on a

dismissal under Rule 12(b)(6) until notified otherwise, at which

point it is entitled to a full and fair opportunity to assert the

rights of a party.

     Upon reinstatement, the court required attorney Ludlum to

protect    all    of   the   County’s      interests,    despite     his   repeated

statements that he represented the Sheriff only in his individual

capacity.   We do not find persuasive the view of the district court

and the plaintiff that Ludlum & Ludlum continued to represent the

County on the morning of trial. The plaintiff’s suggestion that we

treat the district court’s action in this case as a denial of the

motion to withdraw rests upon the erroneous premise that Ludlum &

Ludlum represented the County.             On the morning of trial, attorney

Ludlum made his position clear: he represented only the Sheriff in

his individual         capacity.     If,    as   the   trial   court   apparently

thought, Ludlum & Ludlum should not have represented a different

client in the same litigation without a full waiver of conflicts by

all involved, the remedy was not to push ahead with the litigation

by imposing a second client upon an unwilling law firm.

     For identical reasons, we find unconvincing Ms. Bennett’s


                                        18
reliance on Rule 54(b) for the proposition that Ludlum & Ludlum

continued to represent the County, even though the County had been

dismissed from the case and even though the firm had since entered

an appearance on behalf a different party in the same litigation.

We find especially puzzling Ms. Bennett’s reliance on the fact that

Ludlum & Ludlum never moved to withdraw from representation of a

party that had been dismissed from the lawsuit.              We also attach

little significance to the fact that Ludlum & Ludlum moved to

reopen discovery on behalf of “Presley Pippin, Jr., Individually

and as Sheriff of Archer County, Texas, in his Official Capacity.”

The fact of the matter is that the County was out of the lawsuit at

this point, and this pleading did not purport to bring the County

back in.    The parties’ conduct throughout this litigation suggests

confusion on the status of the County and the Sheriff in his

official    capacity     as   a   parties,    with   pleadings     referring

alternatively to “Presley Pippin,” “Archer County Sheriff Presley

Pippin,” or the “defendant.”       We will not let this confusion cause

us to lose sight of the fundamental fact that the County had been

dismissed from the case.

      For   similar    reasons,   we   find   unpersuasive   Ms.   Bennett’s

argument that the County waived its right to a jury trial when the

parties agreed to arbitrate the case pursuant to 28 U.S.C. §§ 651-

58.   Again, the County remained a party to the lawsuit only in the

sense that the 12(b)(6) ruling in its favor lacked the finality of

a judgment.    But nothing in the record suggests that the County

agreed to arbitrate the suit against it.          The County could hardly


                                       19
have       been   found    to   be   jointly    and   severally   liable   for   the

arbitration award having been dismissed from the case. Plaintiff’s

counsel conceded at oral argument that the arbitration award ran

only against the Sheriff individually.                The County was not a party

to the arbitration and accordingly was not a party to any waiver

attending those proceedings.

       We hold that the County did not waive its right to trial by

jury.       We reverse the judgment below against the County and remand

for a new trial.6



                                           V

       The Sheriff individually argues that the district court erred

in finding that he engaged in sexual intercourse with Ms. Bennett

without her consent and that the rape was under color of state law.

We do not agree.

       We find no clear error in the district court’s factual finding

that the Sheriff raped Ms. Bennett.              At bottom, this case turned on

whether the district court believed Ms. Bennett or the Sheriff.

The court believed Ms. Bennett, and that call belongs to the

district court.           We will not upset such a finding on appeal.7

       6
       For the above reasons, we also reverse the district court’s
judgment holding the County vicariously liable under state tort law
for the Sheriff’s rape and remand for a new trial on this issue.
We express no view at this time regarding whether the County may be
held vicariously liable for the Sheriff’s violation of state tort
law. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (Vernon
1986). We believe the district court should consider the County’s
arguments on this issue in the first instance.
           7
         It is possible that the district court considered the
following portions of the Sheriff’s testimony in deciding whether

                                           20
     We also find no error in the district court’s conclusion that

the Sheriff acted under color of state law when he raped Ms.

Bennett.    The district court found that the Sheriff questioned Ms.

Bennett about the earlier shooting for 30-45 minutes as the two sat

on her porch, just before the rape occurred.         The court also found

that, in response to Ms. Bennett’s refusals to have sex, the

Sheriff said, “I can do what I want, I’m the Sheriff.”           The Sheriff

himself    testified   that   he   used   his   authority   as   Sheriff   to

ascertain whether Mr. Bennett would be released from the hospital

on the night of the rape.          The plaintiff needed the Sheriff’s

permission to retrieve her pickup truck and to change her place of

residence.    Under such circumstances, we cannot argue with the

district court’s observation that “it was not lost on Gail Bennett

(or the Sheriff) that the Sheriff carried the keys to the Archer

County Jail with him in his pocket and wielded coercive power over



to believe the Sheriff’s statement that Ms. Bennett consented to
have sex:

     [Plaintiff’s counsel]: But she said several things like
     no, didn’t she?
     [The Sheriff]: She said one thing that was very coy.
     [The Court]: What do you mean by that?
     [The Sheriff]: Really not serious.
     [Plaintiff’s counsel]: Well, what was it that she said?
     [The Sheriff]: “I don’t know whether this is a good idea
     or not,” just sort of a smile on her face.
     [Plaintiff’s counsel]:    You    would refer to that,
     perhaps, as token verbal resistance?
     [The Sheriff]: Yeah, I suppose so.

     . . .

     [The Court]: So you understood a no not to really mean
     no?
     [The Sheriff]: Yes, sir.

                                     21
Gail Bennett.”       The Sheriff’s actions were an abuse of power held

uniquely because of a state position, see United States v. Classic,

,    326    (1941),    and   the   explicit    invocation    of

governmental authority constituted a “real nexus” between the

duties of Sheriff and the rape.           Doe v. Taylor Independent School

District, 

, 452 n.4 (5th Cir.), cert. denied, 

(1994).



                                        VI

      Sheriff Pippin’s other arguments are also without merit.               The

Sheriff complains that the district court erred on a series of

evidentiary rulings.          The Sheriff further contends that these

errors, together with other comments from the bench, demonstrated

that the trial judge was personally biased against the Sheriff. We

review the district court’s evidentiary rulings for abuse of

discretion, and we will reverse on the basis of evidentiary errors

only if they resulted in substantial prejudice to the Sheriff.

Smith v. Wal-Mart Stores (No. 471), 

, 1180 (5th Cir.

1990).      We find any error in the district court’s evidentiary

rulings harmless.      Regarding improper bias, the Sheriff must show

that “there are reasonable grounds for finding that the judge could

not try the case fairly, either because of the appearance or the

fact of bias or prejudice.”            United States v. Conforte, 

, 881 (9th Cir.), cert. denied, 

(1980).              We find

no hint of bias.

      The    Sheriff’s      first   evidentiary     complaint    concerns    the


                                        22
testimony of Austin Police Department Sergeant Robert Merrill, the

first law enforcement official to hear of the Sheriff’s rape.                Ms.

Bennett’s counsel asked why Merrill had traveled 300 miles to

testify   in    this   case,    and   the   district    court    overruled   the

defense’s relevance and opinion objection.             Sergeant Merrill then

stated, “I felt like [Bennett] had unconsensual sex either by

force, threat, or intimidation, and I don’t think this case was

handled properly through the criminal courts.”               This statement did

not substantially prejudice the Sheriff.           The district court had

already made clear that he would not consider Merrill’s opinion of

Bennett’s credibility in making its own decisions on whom to

believe, and the court’s written memorandum does not rely upon it.

      The Sheriff next objects to Bennett’s testimony that she

thought the Sheriff’s questions to her on the porch shortly before

the rape were normal law enforcement questions, on the ground that

this testimony required expert knowledge.          Bennett’s state of mind

at the time was relevant to the question of whether she later bowed

to a show of authority or engaged in consensual sex.                    She was

competent to testify to her own state of mind.

      Third, the Sheriff objects that the district court allowed

Bennett to compare her feelings in a bout of depression prior to

the rape with those after the rape.           The Sheriff argues that only

an   expert    could   give    such   testimony.       The   district   court’s

memorandum did not mention this testimony, and any error in its

admission was harmless.

      Fourth, the Sheriff complains on relevance grounds that the


                                       23
district      court   allowed     plaintiff’s    counsel,     during    cross-

examination of the Sheriff, to elicit testimony that some suspects

in potential homicide investigations would have difficulty refusing

the advances of the officer in charge of the investigation, and

that such suspects might be intimidated by the power of a sheriff.

This testimony was relevant to the issue of willful disregard of

the plaintiff’s rights, a question raised by the request for

punitive damages.

        Lastly, the Sheriff complains that the district court sua

sponte prevented the defense from questioning Bennett about her

post-rape sexual activity.        The Sheriff contends that this element

was relevant to show that Bennett suffered little psychological

harm from the rape.      Fed. R. Evid. 412(a)(2) excludes “in any civil

.   .   .   proceeding   involving   alleged    sexual   misconduct     .   .   .

[e]vidence offered to prove that any alleged victim engaged in

other sexual behavior.”         The Sheriff contends that this evidence

was admissible under the exception included in Rule 412(b)(2).

Although the logic of this argument escapes us, we will not

consider it, because the Sheriff admits that he did not lay the

necessary predicate for this evidence by following the procedures

outlined by Rule 412(c).

        We also find unconvincing the Sheriff’s argument that the

district court’s evidentiary rulings, comments from the bench, and

questioning      of   witnesses    demonstrated    improper     bias.       The

evidentiary rulings of which the Sheriff complains either were

correct or constituted harmless error.              The district court’s


                                      24
comments exhibited at most a sense of humor at a bench trial.8

Regarding the questioning of witnesses, the court extensively

questioned all of the witness at the end of cross-examination, and

the court was evenhanded.



                                 VII

       We REVERSE the judgment against the County entered by the

district court and REMAND for a new trial.   We AFFIRM the judgment

against the Sheriff individually. The verdict and judgment against

the Sheriff in his individual capacity determined no issue in the

suit yet to be tried against the County.9      Because we have not

affirmed the judgment in its entirety, we REMAND the issue of

attorneys’ fees for resolution upon conclusion of the case in the

district court.

       Affirmed in part, reversed in part, and remanded.




       8
        The district court stated that the docket was not a boring
one, that the facts resembled those of a TV movie, and that despite
his experiences watching goat ropings at a county fair he had never
seen a fact situation resembling that in the case at bar.
   9
      Evidence of the verdict or judgment should not be admissible
at the new trial.    We have, of course, rejected the County’s
attempt to prevail outright on the issues of Monell policy or
custom and insufficiency of the allegations in the complaint.

                                 25