UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-41229

____________________

GLEN ROBERTSON and CHERYL ROBERTSON,

Individually and as Heirs at Law of

Jonathan P. Robertson,

Plaintiffs-Appellants,

versus

PLANO CITY OF TEXAS, ET AL.,

Defendants-Appellees.

____________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_____________________________________________________ November 15, 1995

Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA, Circuit

Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this challenge to a Rule 12(b)(6) dismissal, primarily at

issue is whether police officers violated a juvenile's rights under

the Fourth and Fourteenth Amendments when, while in vestigating a

burglary, they admonished him regarding potential imprisonment,

even though they knew that the described punishment was applicable

only to adults. We AFFIRM

.

I.

Pursuant to 42 U.S.C. § 1983, the Robertsons sued the City

(Plano, Texas), its police chief, and several police officers,

asserting, in addition to claims under state law, claims under the

Fourth, Ninth, and Fourteenth Amendments to the United States1 The district court dismiss ed with prejudice the state law

negligence claims against the City, based on its sovereign immunity

under Texas law; the Robertsons have not challenged this on appeal.

The neglige nce claims against the officers and police chief were

dismissed without prejudice. And, the Robertsons have abandoned

their Ninth Amendment claim.

- 2 - Constitution. They alleged that, one late evening in August 1993,

two officers came to the Robe rtsons' home to talk with their 16-

year-old son, Jonathan, about a burglarized car; that the officers

suspected Jonathan and another juvenile had committed the burglary;

that they notified Jonathan that he was a suspect and took his

driver's license; that, without first giving Miranda warnings, they

obtained his confession and admonished him that the offense was a

third degree felony that carried the possibility of a $10,000 fine

and imprisonment in a state penitentiary; that, altho ugh the

officers knew that Jonathan was a minor, they quoted the law as it

applied to adults; that the officers realized that the admonition

was not accurate, but did not so inform Jonathan; and that Jonathan

committed suicide at the Robertsons' home the next morning.

Contending, inter alia

, that the Robertsons failed to state a

claim upon which relief could be granted, the defendants moved to

dismiss pursuant to F ED

. R. C IV

. P ROC

. 12(b)(6). The district court

granted the motion in part; all federal claims were dismissed with

prejudice, and the state law claims were dismissed with and without

prejudice. 1

II.

In addition to asserting constitutional claims, the Robertsons

contend that they should have been allowed to amend their- 3 -

complaint. Because so much of their brief is devoted to presenting

their claims based on allegations they contend they will make if

allowed to replead, we address the procedural issue first.

A.

Although leave to amend should be granted liberally, we review

its denial only for abuse of discretion. E.g., Cinel v. Connick

,

15 F.3d 1338, 1346 (5th Cir.), cert. denied , ___ U.S. ___, 115 S.

Ct. 189 (1994). But, as an added wrinkle, this issue is premised

on a factual dispute, which is raised for the first time on appeal,

thus, bringing plain error review into play.

In their response to the motion to dismiss, the Robertsons

stated that, "should the court find that Plaintiffs' pleadings are

unc lear or deficient ... then Plaintiffs request that they be

allowed to replead to correct any deficiencies". Notwithstanding

this request, the district court stated, in its d ismissal order,

that the Robertsons did not wish to replead:

Although plaintiffs requested the opportunity

to replead if the complaint was defective, at

the management conference counsel for

plaintiffs represented to the Court that

plaintiffs were willing to stand on their

response and the live pleadings in the

determination of the motion to dismiss and did

not want to replead.

The Robertsons insist that they did not drop their request to

replead; in support, they offer an affidavit, which is not part of

the record, from one of their attorneys present at the management

conference. But, obviously, if the district court characterized

incorrectly, or misunderstood, the Robertsons' position on amending

the complaint, they should have requested reconsideration, pursuant- 4 -

to F ED

. R. C IV

. P. 59(e) or 60(b). This allows the district court

to correct any error that it may have committed. E .g., Edwards v.

Sears, Roebuck & Co.

, 512 F.2d 276, 286 (5th Cir. 1975). For

equally obvious reasons, this is espe cially critical for claimed

errors of fact, as in this instance.

The district court found that the Robertsons did not wish to

replead, and the Robertsons failed to object to this finding in

district court. Because their objection is raised for the first

time on appeal, we review only for plain error. S ee United States

v. Calverly

, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (if

appellant shows clear or obvious error that affects his substantial

rights, appellate court has discretion to correct errors that

ser i ously affect fairness, integrity, or public reputation of

judicial proceedings), cert. denied

__ U.S.

__, 115 S. Ct. 1266

(1995); see also

, Highlands Ins. v. National Union Fire Ins.

, 27

F.3d 1027 (applying same standard in civil case), cert. denied

__

U.S. __, 115 S. Ct. 903 (1995).

Moreover, because the nature of the claimed error is a

question of fact, the possibility that such a finding could rise to

the level of obvious error required t o meet part of the standard

for plain error is remote. U nited States v. Vital

,

__ F.3d

__,

1995 WL 613322, *3 (5th Cir. 1995) (quoting United States v. Lopez

,

923 F.2d 47, 50 ( 5th Cir.), cert. denied

, 500 U.S. 94 (1991) for

proposition that "questions of fact capable of resolu tion by the

district court upon proper object ion at sentencing can never

constitute plain error"). In sum, we have no basis from which to2 Because, as discussed infra

, the Robertsons fail to state a

violation of the Constitution, we need not address the issues of

qua lified immunity, or whether the officers' conduct was

"deliberately indifferent" or merely "negligent", or whether the

City or its police chief can be held liable.

- 5 - conclude that the finding that the Robertsons did not wish to

replead could have been erron eous; a fortiori

, it cannot be plain

error.

B.

We review a 12(b)(6) dismissal de novo

. E .g., Jackson v. City

of Beaumont Police Dep't

, 958 F.2d 616, 618 ( 5th Cir. 1992). It

will be affirmed only if "it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which

would entitle him to relief". M cCormack v. Nat ional Collegiate

Athletic Ass'n , 845 F.2d 1338, 1343 (5th Cir. 1988) (internal

quotation and citation omitted). We take as true the allegations

in the complaint; however, we cannot assume facts not alleged.

Id. , at 1343.

To establish a cause of action under § 1983, a plaintiff must

plead the deprivation of a right, secured by the Constitution or

laws of the United States, by a person acting under color of state

law. E.g., Evans v. City of Marlin, Tex. , 986 F.2d 104, 107 (5th

Cir. 1993). The Robertsons claim that their son's rights were

violated under the Fourth and Fourteenth Amendments, when the

officers admonished him regardin g possible imprisonment. For

purposes of analyzing t he claims, it bears noting that the

complai nt does not allege that the officers threatened the

Robertsons' son, only that he was admonished. 2- 6 - 1.

"[T]he right of the people to be secure in their persons ...

against unreasonable searches and seizures, shall not be

violated...." U.S. C ONST

. amend. IV. "A search occurs when the

government infringes `an expectation of privacy that society is

prepared to consider reasonable.' Seizure of a person occurs when

the government meaningfully interferes with his liberty...."

National Treasury Employees Union v. Von Raab

, 816 F.2d 170, 175

(5th Cir. 1987) (quoting United States v. Jacobsen , 466 U.S. 109,

113 (1984)), aff'd in part, vacated in part , 489 U.S. 656 (1989).

The Robertsons have failed to identify a right protected by

the Fourth Amendment that was violated by the admonition; it was

not a seizure. The Robertsons' son was not placed under arrest,

nor is there any allegation that the officers restrained his

freedom. U

nited States v. Mendenhall

, 446 U.S. 544, 553 (1980)

("a person is `seized' only when, by means of physical force or a

show of authority, his freedom of movement is restrained").

The Robertsons rely on White v. Walker

, 950 F.2d 972 (5th Cir.

1991), where we reversed a directed verdict premised on qualified

immunity. W

hite pertained to the suicide of a 14-year-old boy

after a traffic stop and his detention at the police station; thus,

it involved a seizure.

In stark contrast, no seizure occurred in the case at hand.

Some indicia of a seizure adequate to trigger Fourth Amendment

protections are identified in Mendenhall

, 446 U.S. at 554-55. The

son's encounter with the officers had none of these. For example,- 7 -

the Robertsons do not allege that the officers displayed weapons,

or touched their son, or used language that led him to believe he

would be compelled to continue the encounter had he attempted to

leave. I d. Contrary to the Robertsons' assumption, "not all

personal intercourse between policemen and citizens involves

`seizures' of persons". T erry v. Ohio

, 392 U.S. 1, 19 n.16 (1968).

2.

No State shal l "deprive any person of life, liberty, or

property, without due process of law". U.S. C ONST

. amend. XIV, § 1.

To state a § 1983 claim for violation of the Due Process Clause of

the Fourteenth Amendment, a plaintiff must show that he has

"asse rted a recognized `liberty or property' interest within the

purview of the Fourteenth Amendment, and that [he w as]

intentionally or recklessly deprived of that interest, even

temporarily, under color of state law". G riffith v. Johnston

, 899

F.2d 1427, 1435 (5th Cir. 1990) (citations omitted), cert. denied

,

498 U.S. 1040 (1991). At issue is the substantive component of the

Due Process Clause; it "protects individual liberty against

`certain government[al] actions regardless of the fairness of the

procedures used to implement them'". C ollins v. City of Harker

Heights, Tex.

, 503 U.S. 115, 125 (1992). S ee Rochin v. California

,

342 U.S. 165, 172 (1952) (state conduct may violate substantive due

process if it "shocks the conscience").

It goes without sa ying that, in determining whether the

constitut ional line has been crossed, the claimed wrong must be

viewed in the context in which it occurred. M cFadden v. Lucas

, 713- 8 -

F.2d 143, 146 (5th Cir.), cert. denied

, 464 U.S. 998 (198 3). We

find neither Fourteenth Amendment case law, nor case law construing

other constitutional requirements, that would support holding that

the Due Process Clause afforded the Robertsons' son (16 years old)

a right to be free from an erroneous admonishment regarding

punishment and prison. Nor do we find such conduct to be of the

type that is violative of substantive due process.

For example, in the Eighth Amendment context, our circuit has

recognized as a general r ule that "mere threatening language and

gestures of a custodial office[r] do not, even if true, amount to

constitutional violations". M cFadden

, 713 F.2d at 146 (qu oting

Coyle v. Hughs , 436 F. Supp. 591, 593 (W.D. Okla. 1977)); a ccord

Johnson v. Glick

, 481 F.2d 1028, 1033 n.7 (2d Cir.) (the use of

words, no matter how violent, does not comprise a § 1983

violation), cert. denied , 414 U.S. 1033 (1973); Collins v. Cundy

,

603 F.2d 825, 827 (10th Cir. 1979) (verbal harassment consisting of

sheriff's threat to "hang" prisoner does not state constitutional

deprivation actionable under § 1983).

Other circuits have determined that language more egregious

than the admonishment in issue failed to comprise a constitutional

violation. In E

mmons v. McLaughlin

, 874 F.2d 351 (6th Cir. 1989),

Emmons alleged that police officers harassed and intimidated him

because of their unfounded belief that he was a drug dealer,

eventually compelli ng him to leave town. Specifically, Emmons

alleged that an officer approached him in a parking lot and stated,

inter alia, "I am going to get yo u...." I d. at 353. Rejecting3 By contrast, see Burton v. Livingston

, 79 1 F.2d 97, 99-100

(8th Cir. 1986) (actionable claim stated when prison guard pointed

pistol at prisoner, cocked trigger, and stated "nigger run so I can

blow your Goddamn brains out, I want you to run so I'll be

justified"; "prisoner retains

... the right to be free from the

terror of instant and unexpected death at the whim of his allegedly

bigoted custodians").

- 9 - Emmons' contention that this threat caused him to fear for his life

in violation of his constitutional rights, the Sixth Circuit

declared that these words were "not an actual infringement of a

constitutional right, and thus,

... n ot actionable under section

1983". Id.

Similarly, in Hopson v. Fredericksen

, 961 F.2d 1374 (8th Cir.

1992), Hopson was placed in the back seat of a police car while

being questioned by two officers. Hopson alleged that one of the

officers turned to the other, uttered a racial slur, and, then,

threatened to "`knock [Hopson's] remaining teeth out of his mouth'

if he remained silent". I d. at 1378 (alteration in original). The

Eighth Circuit noted that the officer never threatened to kill

Hopson, never brandished a lethal w eapon, and never physically

assaulted him. The court reasoned that "[a]lthough such conduct is

not to be condoned", it did not rise to the level of a "brutal" and

"wanton act of cruelty". Id. at 1379. 3

Nor does Jonathan's status (16-year-old juvenile) create an

exception to the general rule. In Pittsley v. Warish , 927 F.2d 3

(1st Cir.), cert. denied

, 502 U.S. 879 (1991), two police officers

arrived at Pittsley's home and inquired of her two children whether

their father was at home. When the four-year-old and ten-year-old

children responded negatively, the officers a llegedly told them:4 The Robertsons rely on Wilkinson v. Ellis , 484 F. Supp. 1072

(E.D. Pa. 1980). There, the police threatened a potential witness

with loss of the custody of her infant son if she refused to sign

a statement implicating her husband in a crime. She alleged that

the police forced her "to choose between her husband and her son".

Id. at 1090. Based upon the "unique circumstances of [the] case",

the district court rejected a motion to dismiss, concluding that

the threat "constitute[d] an intrusion into Mrs. Wilkinson's right

of family integrity sufficient to state a cause of action under 42

U.S.C. § 1983". I d. at 1089. The court described the incident as

"a colossal intimidation delivered in the midst of a high drama".

Id . at 1090.

The factual distinctions between this case and Wilkinson are substantial. Jonathan was the focus of a criminal investigation,

unlike the mother in Wilkinson

. In short, the factual differences

are too great for Wilkinson to assist us.

- 10 - "if we see your father ... on the streets again, you'll never see

him again". I d. at 5. Pittsley alleged that, when the father was

a rrested later at her home, based on a valid arrest warrant, the

arresting officer treated her children "very badly" (although "he

did not put his hands on them") and used "vulgar language" in

refusing to allow the children to hug or kiss their father goodbye.

Id. Contending that, in light of the vulnerability of young

children, the arresting officer 's actions and language was "so

brutal, offensive and intimidating as to `shock the conscience'",

Pittsley and her children claimed a due process violation. I d. at

7. The court disagreed: "The children's alleged fear or trauma

which resulted from these spoken words and actions in this instance

... [was] not sufficient to rise to the level of a constitutional

violation under the standard enunciated in Rochin ". Id. 4- 11 - III.

For the foregoing reasons, the judgment is

AFFIRMED

.