Filed: Apr. 29, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 01-30875 Summary Calendar _ GEORGE LEE, III, INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, Plaintiffs-Appellants, VERSUS MARC MORIAL, MAYOR OF THE CITY OF NEW ORLEANS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; CITY OF NEW ORLEANS; RICHARD PENNINGTON, CHIEF OF POLICE FOR THE CITY OF NEW ORLEANS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, Defendants-Appellees. _ Appeal from the United States District Court for the Eastern D
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 01-30875 Summary Calendar _ GEORGE LEE, III, INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED, Plaintiffs-Appellants, VERSUS MARC MORIAL, MAYOR OF THE CITY OF NEW ORLEANS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; CITY OF NEW ORLEANS; RICHARD PENNINGTON, CHIEF OF POLICE FOR THE CITY OF NEW ORLEANS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, Defendants-Appellees. _ Appeal from the United States District Court for the Eastern Di..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-30875
Summary Calendar
_______________
GEORGE LEE, III,
INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED,
Plaintiffs-Appellants,
VERSUS
MARC MORIAL,
MAYOR OF THE CITY OF NEW ORLEANS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
CITY OF NEW ORLEANS;
RICHARD PENNINGTON,
CHIEF OF POLICE FOR THE CITY OF NEW ORLEANS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(99-CV-2952)
_________________________
April 26, 2002
Before JONES, SMITH, and The New Orleans Police Department
EMILIO M. GARZA, Circuit Judges. (“NOPD”) suspended George Lee, III, with-
JERRY E. SMITH, Circuit Judge:*
*
(...continued)
determined that this opinion should not be pub-
*
Pursuant to 5TH CIR. R. 47.5, the court has lished and is not precedent except under the limited
(continued...) circumstances set forth in 5TH CIR. R. 47.5.4.
out pay because prosecutors had charged him but hung on one count of sexual battery and
with rape and armed robbery. The NOPD two counts of kidnaping. The court reset the
announced the suspension and their suspicions case for trial, but the state dropped the
at a press conference. After four trials, Louisi- charges.2
ana convicted Lee of several counts of forcible
rape and kidnaping. Lee sued, alleging that In February 2000, the state launched a sec-
NOPD’s suspension and press conference vio- ond case, reinstating the remaining charges
lated the federal and Louisiana constitutions and adding more. The state charged Lee with
and Louisiana statutes. The district court six counts of forcible rape and four counts of
found that Lee failed to state a claim for vio- second degree kidnaping. Lee pleaded not
lations of his federal rights under the Fourth, guilty. The case went to trial in April 2000,
Sixth, and Fourteenth Amendments and dis- but the court declared a mistrial, finding that
missed the state law claims without prejudice the state had concealed Brady material and or-
because it declined to exercise supplemental dering the prosecution to produce the evidence
jurisdiction. Finding no error, we affirm. to the defense. The state then again dropped
the charges in the second case.
I.
In August 1999, NOPD officers arrested In May 2000, the state brought a third case,
Lee for aggravated rape, aggravated kidnap- reinstating the charges and adding new counts.
ing, and armed robbery. On the same day, The state charged Lee with seven counts of
NOPD suspended Lee for 120 days for violat- forcible rape and five counts of second degree
ing an internal rule requiring officers to adhere kidnaping. Lee pleaded not guilty. The trial
to the law. The chief of the NOPD, Richard began in October 2000 but lasted only seven
Pennington, gave a press conference describ- days; the court declared a mistrial because of
ing Lee as a rapist and announcing his emer- prosecutorial misconduct because the
gency suspension. Lee spent 120 days in jail prosecutor had planted evidence on the
before an Orleans Parish judge ruled that the defendant’s clothing sometime between the
officers lacked probable cause for the arrest. second and third trials.3 In February 2001,
The state then dropped the charges.1 Lee faced trial a fourth time; the jury convicted
him on all counts and sentenced him to thirty
In November 1999, a grand jury indicted
Lee on two counts of sexual battery, two
2
counts of extortion, and three counts of sec- We have omitted all of the appeals to the
ond degree kidnaping. Lee pleaded not guilty, intermediate courts and the Louisiana Supreme
and a jury found him not guilty of extortion Court; we also omit the contempt proceedings
spawned by prosecutorial misconduct. None of
these events is directly relevant to the appeal.
1 3
This account of the August 1999 arrest and The Louisiana Court of Appeal’s decisions
suspension reflects the most favorable reading of provide a useful summary of the criminal case’s
Lee’s complaint, Schultea reply, response to the procedural history. See State v. Lee, 767 So. 2d
motion to dismiss, and appellant’s brief. None of 97, 98 (La. App. 4th Cir. 2000); State v. Lee , 778
these documents spells out the initial arrest and So. 2d 656, 657-59 (La. App. 4th Cir. 2001); State
suspension fully. The city of New Orleans is also v. Lee, 787 So. 2d 1020, 1024-27 (La. App. 4th
opaque about the initial arrest. Cir. 2001).
2
years at hard labor. CIV. P. 12(b)(6). The court dismissed the city
and Morial and Pennington in their official
II. capacity because Monell v. City of New York
In September 1999, Lee sued under 42 Dep’t of Social Servs., 436 U.S. 658 (1978),
U.S.C. §§ 1981 and 1983 for alleged requires the plaintiff to point to a municipal
violations of his constitutional rights. The custom or policy that inflicted the injury. Lee
complaint named as defendants Mayor Marc failed to do so. The court’s memorandum
Morial, NOPD Chief Richard Pennington, and described a willingness to reinstate the claims
the city of New Orleans. Lee sued Morial and if Lee amended the complaint appropriately.
Pennington in their individual and official
capacities. The court then turned to the claims against
Morial and Pennington in their individual ca-
The complaint alleged several constitutional pacities and found that the complaint failed to
violations stemming from the suspension and set forth facts with sufficient particularity to
its publication. First, Lee alleged that the create individual liability. The court dismissed
defendants had violated the Fourteenth the Fourth and Sixth Amendment claims, then
Amendment’s Due Process Clause by failing to ordered Lee to file a Schultea reply to the
give him notice of the suspension, denying him answer supplying specific facts that supported
a presuspension name-clearing hearing, and his other claims. First, Lee had an obligation
publicizing the rape charges at a press to identify particular state law or contractual
conference. Second, Lee claimed that pub- bases for his property right to avoid
licizing the rape violated his Fourth Amend- suspension or retain his position. Second, the
ment right to privacy. Third, he averred that court insisted that Lee plead whether he
the NOPD violated the Fourteenth requested a name-clearing hearing. Third, the
Amendment’s Equal Protection Clause by court ordered Lee to explain in greater detail
adopting a disciplinary policy that the facts supporting his Equal Protection
systematically disadvantaged black officers. claim.
Finally, Lee claimed that the publication
compromised his Sixth Amendment right to an On the same day as the district court’s or-
impartial jury in his subsequent criminal trial. der, Lee filed a pleading labeled “Plaintiff’s
Reply to Defendant’s Answer and Affirmative
In December 1999, the defendants filed an Defenses.” The court ruled that Lee’s reply
answer and first asserted that the complaint failed to satisfy the requirements of its earlier
failed to state a claim on which relief could be order. The reply and proposed amendments
granted. In January 2000, the court held a sought to add multiple new defendants and
pretrial conference; the parties agreed not to substantially to alter the original complaint.
file amendments to pleadings any later than The court held that Lee was not in compliance
thirty days after the conference; but the district with the order and rejected the reply, then
court reserved the right to extend any of the instructed Lee to “review [the] June 1, 2000
deadlines by granting a motion for a Memorandum and Order more carefully and
continuance. attempt to comply with the precise directions
given.” The court did not specify a due date
Defendants moved to dismiss under FED. R. for the next Schultea reply. Lee filed a notice
3
of appeal from the order dismissing his Fourth positive motions. The court rejected the mo-
and Sixth Amendment claims. tion because it did not remedy any of the flaws
identified in the court’s memorandum. If an
Lee filed a second Schultea reply and a mo- amended complaint cannot survive a motion to
tion to amend the original complaint. The dismiss, a district court has the discretion to
court ordered the case closed because of the refuse the amendment.5 The district court
pending criminal proceedings in the Parish of instead instructed Lee to study the court’s
Orleans and pending appeal to this court. The memorandum and submit amendments that
district court denied Lee’s motion to amend would cure the complaint’s deficiencies.
the complaint because it had closed the case,
but specified that its denial “is without Lee then filed his second Schultea reply and
prejudice to the right of the plaintiff to re-urge a motion to amend. The court denied the
the motion if the case is restored to the trial motion because Lee had already filed an appeal
docket.” with the Fifth Circuit. District courts do not
abuse their discretion by denying a motion to
A panel of this court granted Lee’s amend after the plaintiff has appealed the
unopposed motion to dismiss the appeal judgment. A proper notice of appeal divests
without prejudice. Then, after Lee’s the district court of jurisdiction over all
conviction, defendants filed a motion to matters relating to the appeal.6 Although this
dismiss the remainder of the claims under FED. court may have lacked jurisdiction, and the
R. CIV. P. 12(b)(6). Lee filed a response to district court may have retained the power to
the motion to dismiss. The district court filed amend, the district court chose not to allow
a memorandum concluding that Lee had never amendment.
effectively amended his complaint, considering
his Schultea reply, and ruling that Lee had
failed to state a claim for any federal
constitutional violation. 5
Pan-Islamic Trade Corp. v. Exxon Corp., 632
F.2d 539, 546 (5th Cir. 1980) (“Clearly, if a com-
III. plaint as amended is subject to dismissal, leave to
Lee appeals the denials of his motions to amend need not be given.”); DeLoach v. Woodley,
amend the complaint. After a responsive 405 F.2d 496, 496-97 (5th Cir. 1969) (finding
pleading has been filed, the court should grant court need not amend when complaint fails to cure
“leave” to amend “freely” “when justice so re- original, fatal defects).
quires.” Fed. R. CIV. P. 15(a). We review for 6
abuse of discretion the refusal to allow amend- Griggs v. Provident Consumer Discount Co.,
ment.4
459 U.S. 56, 58 (1982) (per curiam) (“The filing
of a notice of appeal is an event of jurisdictional
significanceSSit confers jurisdiction on the court of
Lee filed his first motion to amend before appeals and divests the district court of its control
the district court had ruled on any of the dis- over those aspects of the case involved in the
appeal.”) (citation omitted); United States v.
Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979) (en
4
Lewis v. Fresne, 252 F.3d 352, 356 (5th Cir. banc) (finding that a properly filed appeal stripped
2001); Carbalan v. Vaughn,
760 F.2d 662, 664-65 the district court of jurisdiction over matters re-
(5th Cir. 1985). lating to the appeal).
4
The proposed amendment would have add- 234 F.3d 907, 911 (5th Cir. 2000), cert.
ed more parties and substantially altered the denied,
532 U.S. 1052 (2001). The court
underlying case while on appeal. The district must liberally construe the complaint in favor
court knew that if this court found jurisdiction, of the plaintiff and assume the truth of all
the amendment would have no effect.7 Rather pleaded facts. Brown v. Nationsbank Corp.,
than making a guess about appellate
188 F.3d 579, 586 (5th Cir. 1999). “The court
jurisdiction, the district court displayed may dismiss a claim when it is clear that the
sensitivity to the well-established principle that plaintiff can prove no set of facts in support of
an appellate court normally has the power to his claim that would entitle him to relief.”
determine its own jurisdiction.8 This Jones v. Greninger,
188 F.3d 322, 324 (5th
awareness marks sound judicial administration, Cir. 1999).
not an abuse of discretion.9
FED. R. CIV. P. 8(a)’s generic pleading
IV. requirements govern suits against
A. municipalities and individual defendants in
“We review the district court’s ruling under their official capacity. Anderson v. Pasadena
[rule] 12(b)(6) de novo.” Shipp v. McMahon, Indep. Sch. Dist., 184 F.3d 439, 443 (5th Cir.
1999). Lee need only provide “‘a short and
plain statement of the claim’ that will give the
7
Dayton Indep. Sch. Dist. v. U.S. Mineral defendant fair notice of what the plaintiff’s
Prods. Co., 906 F.2d 1059, 1063-64 (5th Cir. claim is and the grounds upon which it rests.”
1990) (declaring amended complaint ineffective Leatherman v. Terrant County Narcotics
because district court had significantly changed the Intelligence & Coordination Unit, 507 U.S.
status of the case before the court of appeals). 163, 168 (1993) (citation omitted).
8
As the Eight Circuit explained in a similar
case: Lee argues that the district court erred by
applying a “heightened pleading standard” to
[A]ppellate jurisdiction is primarily an issue his claims against Morial and Pennington as
for the appellate court. Therefore, if an individuals. In Leatherman, the Court held
appeal is taken from an interlocutory order that federal courts could not apply a
and the issue of appealability is in doubt, the “heightened pleading standard” immunity to
district court should stay its hand until we states, municipalities, and government
resolve the issue of our jurisdiction. employees sued in their official capacity. Id. at
165, 166-67. Nothing in Leatherman spoke to
State ex. rel. Nixon v. Couer D’Alene Tribe, 164 whether qualified immunity requires §
1983
F.3d 1102, 1106-07 (8th Cir. 1999). plaintiffs to satisfy a heightened pleading
9 standard for claims against government
Lee also fails to point out any harm caused by
the refusal to amend. In its June 2001,
officials in their individual capacity.
memorandum, the court considered both the
original complaint and the rule 7 reply’s We recognized the open question in Schul-
allegations. Lee does not explain why refusing to tea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en
permit formal amendment affected the facts banc), and offered a solution, recognizing that
considered by the district court when resolving the even rule 8 requires that plaintiffs plead “more
rule 12(b)(6) motion.
5
than conclusions.” Id. at 1431, 1434. If the B.
complaint alleges only conclusions, the court Holding a municipality or a municipal of-
should order the plaintiff to file a reply to the ficial acting in his official capacity liable under
answer under FED. R. CIV. P. 7(a).
Id. at § 1983 requires a finding of a municipal cus-
1433.10 The court then considers whether the tom or policy. Kentucky v. Graham, 473 U.S.
complaint and rule 7 reply “support[ ]” the 159, 165-66 (1985);
Monell, 436 U.S. at 694.
claim “with sufficient precision and factual The official policy or custom must inflict the
specificity to raise a genuine issue as to the plaintiff’s injury.
Monell, 436 U.S. at 694.
illegality of defendant’s conduct at the time of
the alleged acts.”
Id. at 1434.11 The district To show an unconstitutional policy or cus-
court correctly applied the heightened pleading tom, the plaintiff must (1) identify the policy or
requirement required by Schultea and per- custom, (2) connect the policy or custom with
mitted by rule 7.12 the government entity, and (3) show that the
policy caused the plaintiff’s particular injury.
Bennett v. City of Slidell, 728 F.2d 762, 767
10
Rule 8(a)(2) does not apply to rule 7 replies, (5th Cir. 1984) (en banc). We define an
because rule 8(a)(2) applies only to “original official policy as “a policy statement, or-
claim[s], counterclaim[s], cross-claim[s], or third- dinance, regulation, or decision that is
party claim[s].” Id. officially adopt ed and promulgated by the
municipality’s lawmaking officers or by an
11
Several panels have applied the Schultea official to whom the lawmakers have delegated
standard. E.g., Shipp, 234 F.3d at 912 (“[I]f the policymaking authority.” Johnson v. Moore,
pleadings on their face show an unreasonable vio-
958 F.2d 92, 94 (5th Cir. 1992). Although
lation of a clearly establish[ed] constitutional right,
even a single decision by a final policymaker
the defense of qualified immunity will not sustain
can establish official policy, Pembaur v.
a motion to dismiss under Rule 12(b)(6).”); Reyes
v. Sazan, 168 F.3d 158, 161-62 (5th Cir. 1999) Cincinnati,
475 U.S. 469, 483-84 (1986), only
(reversing district court for failure to order the decisions of officials possessing “final
Schultea reply when initial complaint only alleged policy making authority” represent official
“bare conclusion[s]”). policy. Jett v. Dallas Indep. Sch. Dist.,
491
U.S. 701, 737 (1989) (emphasis added).
12
Our precedent actually supports applying the
pre-Leatherman pleading standard to claims The district court dismissed all of Lee’s
against individual officers. Anderson, 184 F.3d claims against the city and Morial and
439 (“This court thereafter declined to abandon the Pennington in their official capacities. The
requirement, articulated in Elliott v. Perez, 751 complaint identified the mayor as the person
F.2d 1472 (5th Cir. 1985), that plaintiffs suing
governmental officials in their individual capacities
must allege specific conduct giving rise to a
12
constitutional violation.”) (citation omitted); Mea- (...continued)
dowbriar Home for Children, Inc. v. G.B. Gunn, standard for individual defendants renders the
81 F.3d 521, 531 (5th Cir. 1996) (finding that district court’s application of Schultea’s pleading
Elliot’s pleading requirement for individual standards harmless. See Brandley v. Keeshan, 64
defendants survived both Leatherman and Schul- F.3d 196, 200 (5th Cir. 1995). In this case,
tea). The continued validity of Elliott’s heightened however, we apply Schultea, because the district
(continued...) court ordered a rule 7 reply.
6
responsible for the NOPD and Pennington as theory of recovery, and Lee’s pleadings fail to
the person who held a press conference allege an essential element of the second.
labeling Lee a rapist. The district court found
this insufficient to allege an unconstitutional A.
official policy, to identify the final policymaker To state a claim for deprivation of due pro-
under state or local law, or to establish the cess, Lee must plead and prove (1) the
city’s liability for that person’s actions. Lee deprivation of a constitutionally protected
does not make a single argument or identify a interest and (2) constitutionally inadequate
single fact on appeal that would establish lia- procedures. Cleveland Bd. of Educ. v.
bility for the city or Morial and Pennington in Loudermill, 470 U.S. 532, 538, 541 (1985).
their official capacity; we therefore assume To resolve the scope of Lee’s constitutionally
that he appeals only the dismissal of his claims protected property interests, we must look to
against Morial and Pennington in their state law. Garcia v. Reeves County, Texas, 32
individual capacity. F.3d 200, 203 (5th Cir. 1994).
C. State law determines whether a public em-
Officials who perform discretionary duties ployee has a statutory right to continue work
can assert the defense of qualified immunity and receive pay. Most states give workers a
when sued in their individual capacity. Harlow statutory right to continued employment but
v. Fitzgerald, 457 U.S. 800, 815, 818 (1982). not a particular job or position. Suspending
To overcome qualified immunity, the plaintiff the public employee without pay can raise
must demonstrate (1) the violation of a more serious constitutional questions than sus-
constitutional right clearly established at the pending the public employee with pay. Davis
time of the incident and (2) an objectively rea- v. Mann,
882 F.2d 967, 973 (1989). Some
sonable official would consider the conduct state laws also create a property interest in the
unlawful. Hare v. City of Corinth, 135 F.3d non-pecuniary benefits of a particular
320, 325 (5th Cir. 1998). Because Lee’s occupation, such as reputation or status.
pleadings do not allege violations of Kinsey v. Salado Indep. Sch. Dist., 950 F.2d
constitutional rights, we need not address the 988, 997 (1992) (en banc) (finding that state
question of objective reasonableness. law did not establish such a property right).
V. In his appellant’s brief, complaint, and
Lee argues that his pleadings state a claim rule 7 reply, Lee alleges various and confusing
for violating his right to due process under the sources of his right to continued employment.
Fourteenth Amendment. He argues that, con- The district court found that his descriptions of
trary to the district court’s finding, he state law were only conclusional and that he
established his status as a permanent civil had not alleged a property right to avoid
servant and that Morial and Pennington did suspension. We find it unnecessary to reach
not afford him adequate pre-suspension the question of his right to avoid suspension
process. Lee also contends that Pennington’s under Louisiana state law because the
press conference compromised his reputation defendants did not have an obligation to
as a peace officer without due process. The provide a pre-suspension hearing.
Supreme Court has squarely rejected his first
7
When determining the adequacy of process, Court reasoned that the employee has only a
we must balance three factors: (1) the private slight property interest in avoiding a temporary
interest affected; (2) the risk of erroneous de- suspension and post-suspension process could
privation from current and proposed satisfy that need. Id. at 932. The Court also
procedures; and (3) the government’s interest. explained that “the State has a significant
Matthews v. Eldridge,
424 U.S. 319, 335 interest in immediately suspending, when fel-
(1976). The Supreme Court twice has held ony charges are filed against them, employees
that public employers may immediately who occupy positions of great public trust and
suspend employees without pay who have high public visibility, such as police officers.”
been charged with felonies.
Id. The Court held that an arrest and formal
charge provides the same ex parte finding of
In FDIC v. Mallen, 486 U.S. 230, 232 probable cause created by an indictment.
Id.
(1988), regulations permitted the FDIC to sus- at 934. The Court emphasized that the public
pend indicted officials. The parties and the employer’ real constitutional duty was to pro-
majority agreed that a high-ranking bank of- vide prompt and adequate post-suspension
ficial criminally indicted for making misleading procedures.
Id. at 934-35.13
statements to the FDIC did not have a con-
stitutional right to a presuspension hearing. Lee’s pleadings seek relief only for the un-
Id. 240-41. The state’s interest in preserving lawful suspension, and his arrest and formal
public confidence in the bank outweighs the charge were sufficient to justify the
individual interest in receiving pay for a few suspension. He does not argue that he did not
months or weeks.
Id. The grand jury’s ex have access to post-suspension procedures.
parte finding of probable cause provides a suf- Nor does he argue that the NOPD’s pre-
ficient basis for both the arrest and the termination procedures failed to pass
suspension.
Id. The Court described the more constitutional muster. The Supreme Court has
difficult and relevant constitutional question as held that when the state brings felony charges
how long the suspended employee must wait against the employee the public employer may
before a post-suspension hearing.
Id. at 242, promptly suspend the employee without a
246-47. We need not linger on this question, hearing.
however, because Lee has not asserted in any
of his pleadings or briefs that the NOPD vio- B.
lated his due process rights by denying a post- Lee also argues that the court erred by dis-
suspension or pretermination hearing. He ar-
gues only the illegality of his suspension. 13
Public employers need not provide a full-
In Gilbert v. Homar, 520 U.S. 924, 926-27 fledged presuspension hearing. Caine v. M.D.
Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en
(1997), a university suspended a campus po-
banc) (finding informal appearances before
lice officer without pay immediately after his committee satisfied due process requirements
arrest in a drug raid. The police filed a before suspension so long as hospital later provided
criminal complaint alleging felony violations, an adequate postsuspension hearing); Darlak v.
which they later dismissed, but the university Bobear, 814 F.2d 1055, 1064 (5th Cir. 1987)
still demoted the officer to groundskeeper be- (finding that an informal investigation and
fore ending the suspension.
Id. at 927. The opportunity to deny allegations were adequate
process prior to suspension).
8
missing his due process claim premised on Lee argued in the district court, although he
Pennington’s press conference and reputation- does not repeat the argument in his appellant’s
al injury. Lee, however, has never alleged that brief, that incarceration barred him from
he requested a name-clearing hearing, which is requesting the hearing. We previously have
a necessary element of the constitutional tort. held that a public employee’s hospitalization
did not excuse the employee from requesting
The Fourteenth Amendment recognizes an a name-clearing hearing. Galloway v.
individual’s liberty interest in his “good name, Louisiana, 817 F.2d 1154, 1158 (5th Cir.
reputation, honor, or integrity.” Wisconsin v. 1987).
Constantineau,
400 U.S. 433, 437 (1971). A
public employer implicates this protected lib- Like the plaintiff in Galloway, Lee does not
erty interest by making public defamatory explain why he could not request the hearing
statements about an employee when refusing from jail by correspondence or through his at-
to hire, suspending, firing, or making other torney. Lee’s failure to plead a request for a
employment decisions. Owen v. City of In- name-clearing hearing and a denial is fatal to
dependence, Mo.,
445 U.S. 622, 633 n.13 this claim.
(1980); Dennis v. S & S Consol. Rural High
Sch. Dist.,
577 F.2d 338, 341-42 (5th Cir. VI.
1978). To prevail on his § 1983 claim based Lee argues that the district court erred by
on the defendants’ refusal to hold a name- dismissing his claims under the Fourth Amend-
clearing hearing, Lee must demonstrate: ment. Lee, however, has never identified a
(1) that the NOPD took an adverse coherent legal theory or constitutional tort that
employment action; (2) that Pennington made would entitle him to recover for invasion of his
stigmatizing charges against him in connection Fourth Amendment right to privacy.
with the action; (3) that the charges were false;
(4) that the defendants did not provide notice The Fourth Amendment does not create a
or an opportunity to be heard prior to the general right protecting public employees from
action; (5) that the defendants made the charg- defamation. Paul v. Davis,
424 U.S. 693, 712
es public; (6) that he requested a hearing to (1976); Kerr v. Lyford,
171 F.3d 330, 339 (5th
clear his name; and (7) that the defendants Cir. 1999). The Fourth Amendment
refused the request. Hughes v. City of establishes a tort for malicious persecution, but
Garland,
204 F.3d 223, 226 (5th Cir. 2000) the plaintiff must allege that the criminal action
(citations omitted). terminated in his favor.
Kerr, 171 F.3d at 340.
Lee admits that a jury ultimately convicted him
Lee has never pleaded facts showing that he of rape.
requested and was denied a hearing to clear his
name. This court repeatedly has emphasized Finally, Lee argues that he has stated a
that the plaintiff must request such a hearing.14 claim for “false light invasion of privacy,” but
14 14
Rosenstein v. City of Dallas, 876 F.2d 392, (...continued)
396 & n.7 (5th Cir.), vacated in part,
884 F.2d 901 F.2d 61 (5th Cir. 1990); Compos v. Guillot,
174 (5th Cir. 1989), reinstated in relevant part,
743 F.2d 1123, 1126 (5th Cir. 1984); In re Sel-
(continued...) craig, 705 F.2d 789, 796 (5th Cir. 1983).
9
that tort arises under Louisiana law, not the proper remedy lies in direct appeal to state
federal constitution. Doe v. Doe, 941 F.2d courts or filing for a writ of habeas corpus
280, 288 (5th Cir. 1991). The district court from state or federal courts. Id.
properly dismissed the Fourth Amendment
claims, because Lee has never articulated a IX.
coherent legal theory or the necessary facts. Lee reasserts state law claims on appeal on-
ly indirectly. For example, he repeatedly refers
VII. to the “false light invasion of privacy claim”
Lee asserted an equal protection violation cognizable under Louisiana law. The district
in the district court; if he raises the argument court did not pass on those claims. Instead,
on appeal, he does so only in passing. Regard- after dismissing the federal claims, it refused to
less, the district court properly dismissed the exercise supplemental jurisdiction. Lee has
claim for the reasons set forth in its June 2000 not advanced a reason to classify that decision
and June 2001 memoranda. as an abuse of discretion. We cannot think of
a relevant factor that would counsel in favor of
VIII. retaining jurisdiction, so we affirm.15 Because
Lee alleges that Pennington’s press the district court dismissed the claims without
conference deprived him of a fair criminal trial prejudice, Lee still has the option of re-filing
and violated his Sixth Amendment right to an them in state court.
impartial jury. The district court refused to
consider this claim because the state criminal AFFIRMED.
trial was still pending, and the court did not
consider the claim ripe. The jury has since
convicted Lee.
We decline to address the Sixth
Amendment question for another reason. If
Lee could prove that Pennington’s comments
to the press violated his right to an impartial
jury, his conviction would be unlawful. Unit-
ed States v. Beckner, 69 F.3d 1290, 1292 &
n.1, 1294 (5th Cir. 1995). Section 1983 does
not encompass damage actions that challenge
the legality of a valid criminal conviction.
Heck v. Humphrey,
512 U.S. 477, 483 (1994).
The § 1983 plaintiff challenging the legality of
a prior conviction “must prove that the 15
28 U.S.C. § 1367(c) (“The district courts
conviction or sentence has been reversed on
may decline to exercise supplemental jurisdiction
direct appeal, expunged by executive order, over a claim . . . if . . . the district court has
declared invalid by a state tribunal authorized dismissed all claims over which it has original
to make such a determination, or called into jurisdiction.”); Cabrol v. Town of Youngsville, 106
question by a federal court’s issuance of a writ F.3d 101, 110 (5th Cir. 1997) (dismissing
of habeas corpus.” Id. at 486-87. If the appellant’s state law claims because he failed to
conviction remains in place, the plaintiff’s provide a persuasive reason why the court should
have retained jurisdiction).
10
