IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 01-30875

Summary Calendar

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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

EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

The New Orleans Police Department

(“NOPD”) suspended George Lee, III, with-

* Pursuant to 5TH CIR. R. 47.5, the court has

(continued...)

*

(...continued)

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.
2

out pay because prosecutors had charged him

with rape and armed robbery. The NOPD

announced the suspension and their suspicions

at a press conference. After four trials, Louisiana convicted Lee ofseveral counts of forcible

rape and kidnaping. Lee sued, alleging that

NOPD’ssuspension and press conference violated the federal and Louisiana constitutions

and Louisiana statutes. The district court

found that Lee failed to state a claim for violations of his federal rights under the Fourth,

Sixth, and Fourteenth Amendments and dismissed the state law claims without prejudice

because it declined to exercise supplemental

jurisdiction. Finding no error, we affirm.

I.

In August 1999, NOPD officers arrested

Lee for aggravated rape, aggravated kidnaping, and armed robbery. On the same day,

NOPD suspended Lee for 120 days for violating an internalrule requiring officersto adhere

to the law. The chief of the NOPD, Richard

Pennington, gave a press conference describing Lee as a rapist and announcing his emergency suspension. Lee spent 120 days in jail

before an Orleans Parish judge ruled that the

officers lacked probable cause for the arrest.

The state then dropped the charges.1

In November 1999, a grand jury indicted

Lee on two counts of sexual battery, two

counts of extortion, and three counts of second degree kidnaping. Lee pleaded not guilty,

and a jury found him not guilty of extortion

but hung on one count of sexual battery and

two counts of kidnaping. The court reset the

case for trial, but the state dropped the

charges.2

In February 2000, the state launched a second case, reinstating the remaining charges

and adding more. The state charged Lee with

six counts of forcible rape and four counts of

second degree kidnaping. Lee pleaded not

guilty. The case went to trial in April 2000,

but the court declared a mistrial, finding that

the state had concealed Brady material and ordering the prosecution to produce the evidence

to the defense. The state then again dropped

the charges in the second case.

In May 2000, the state brought a third case,

reinstating the charges and adding new counts.

The state charged Lee with seven counts of

forcible rape and five counts ofsecond degree

kidnaping. Lee pleaded not guilty. The trial

began in October 2000 but lasted only seven

days; the court declared a mistrial because of

prosecutorial misconduct because the

prosecutor had planted evidence on the

defendant’s clothing sometime between the

second and third trials.3 In February 2001,

Lee faced trial a fourth time; the juryconvicted

him on all counts and sentenced him to thirty

1 This account of the August 1999 arrest and

suspension reflects the most favorable reading of

Lee’s complaint, Schultea reply, response to the

motion to dismiss, and appellant’s brief. None of

these documents spells out the initial arrest and

suspension fully. The city of New Orleans is also

opaque about the initial arrest.

2 We have omitted all of the appeals to the

intermediate courts and the Louisiana Supreme

Court; we also omit the contempt proceedings

spawned by prosecutorial misconduct. None of

these events is directly relevant to the appeal.

3 The Louisiana Court of Appeal’s decisions

provide a useful summary of the criminal case’s

procedural history. See State v. Lee, 767 So. 2d

97, 98 (La. App. 4th Cir. 2000); State v. Lee , 778

So. 2d 656, 657-59 (La. App. 4th Cir. 2001); State

v. Lee, 787 So. 2d 1020, 1024-27 (La. App. 4th

Cir. 2001).
3

years at hard labor.

II.

In September 1999, Lee sued under 42

U.S.C. §§ 1981 and 1983 for alleged

violations of his constitutional rights. The

complaint named as defendants Mayor Marc

Morial, NOPD ChiefRichard Pennington, and

the city of New Orleans. Lee sued Morial and

Pennington in their individual and official

capacities.

The complaint alleged severalconstitutional

violations stemming from the suspension and

its publication. First, Lee alleged that the

defendants had violated the Fourteenth

Amendment’s DueProcessClause byfailing to

give himnotice of the suspension, denying him

a presuspension name-clearing hearing, and

publicizing the rape charges at a press

conference. Second, Lee claimed that publicizing the rape violated his Fourth Amendment right to privacy. Third, he averred that

the NOPD violated the Fourteenth

Amendment’s Equal Protection Clause by

adopting a disciplinary policy that

systematically disadvantaged black officers.

Finally, Lee claimed that the publication

compromised his Sixth Amendment right to an

impartial jury in his subsequent criminal trial.

In December 1999, the defendants filed an

answer and first asserted that the complaint

failed to state a claim on which relief could be

granted. In January 2000, the court held a

pretrial conference; the parties agreed not to

file amendments to pleadings any later than

thirty days afterthe conference; but the district

court reserved the right to extend any of the

deadlines by granting a motion for a

continuance.

Defendantsmoved to dismiss under FED.R.

CIV. P. 12(b)(6). The court dismissed the city

and Morial and Pennington in their official

capacity because Monell v. City of New York

Dep’t of Social Servs., 436 U.S. 658 (1978),

requires the plaintiff to point to a municipal

custom or policy that inflicted the injury. Lee

failed to do so. The court’s memorandum

described a willingness to reinstate the claims

if Lee amended the complaint appropriately.

The court then turned to the claims against

Morial and Pennington in their individual capacities and found that the complaint failed to

set forth facts with sufficient particularity to

create individual liability. The court dismissed

the Fourth and Sixth Amendment claims, then

ordered Lee to file a Schultea reply to the

answer supplying specific facts that supported

his other claims. First, Lee had an obligation

to identify particular state law or contractual

bases for his property right to avoid

suspension or retain his position. Second, the

court insisted that Lee plead whether he

requested a name-clearing hearing. Third, the

court ordered Lee to explain in greater detail

the facts supporting his Equal Protection

claim.

On the same day as the district court’s order, Lee filed a pleading labeled “Plaintiff’s

Reply to Defendant’s Answer and Affirmative

Defenses.” The court ruled that Lee’s reply

failed to satisfy the requirements of its earlier

order. The reply and proposed amendments

sought to add multiple new defendants and

substantially to alter the original complaint.

The court held that Lee was not in compliance

with the order and rejected the reply, then

instructed Lee to “review [the] June 1, 2000

Memorandum and Order more carefully and

attempt to comply with the precise directions

given.” The court did not specify a due date

for the next Schultea reply. Lee filed a notice
4

of appeal from the order dismissing his Fourth

and Sixth Amendment claims.

Lee filed a second Schultea reply and a motion to amend the original complaint. The

court ordered the case closed because of the

pending criminal proceedings in the Parish of

Orleans and pending appeal to this court. The

district court denied Lee’s motion to amend

the complaint because it had closed the case,

but specified that its denial “is without

prejudice to the right of the plaintiffto re-urge

the motion if the case is restored to the trial

docket.”

A panel of this court granted Lee’s

unopposed motion to dismiss the appeal

without prejudice. Then, after Lee’s

conviction, defendants filed a motion to

dismissthe remainder of the claims under FED.

R. CIV. P. 12(b)(6). Lee filed a response to

the motion to dismiss. The district court filed

a memorandumconcluding that Lee had never

effectivelyamended his complaint, considering

his Schultea reply, and ruling that Lee had

failed to state a claim for any federal

constitutional violation.

III.

Lee appeals the denials of his motions to

amend the complaint. After a responsive

pleading has been filed, the court should grant

“leave” to amend “freely” “when justice so requires.” Fed. R. CIV. P. 15(a). We review for

abuse of discretion the refusal to allow amendment.4

Lee filed his first motion to amend before

the district court had ruled on any of the dispositive motions. The court rejected the motion because it did not remedy any of the flaws

identified in the court’s memorandum. If an

amended complaint cannotsurvive a motion to

dismiss, a district court has the discretion to

refuse the amendment.5 The district court

instead instructed Lee to study the court’s

memorandum and submit amendments that

would cure the complaint’s deficiencies.

Lee then filed hissecond Schultea replyand

a motion to amend. The court denied the

motion because Lee had alreadyfiled an appeal

with the Fifth Circuit. District courts do not

abuse their discretion by denying a motion to

amend after the plaintiff has appealed the

judgment. A proper notice of appeal divests

the district court of jurisdiction over all

matters relating to the appeal.6 Although this

court may have lacked jurisdiction, and the

district court may have retained the power to

amend, the district court chose not to allow

amendment. 

4 Lewis v. Fresne, 252 F.3d 352, 356 (5th Cir.

2001);Carbalan v. Vaughn, 760 F.2d 662, 664-65

(5th Cir. 1985).

5 Pan-Islamic TradeCorp. v. Exxon Corp., 632

F.2d 539, 546 (5th Cir. 1980) (“Clearly, if a complaint as amended is subject to dismissal, leave to

amend need not be given.”); DeLoach v. Woodley,

405 F.2d 496, 496-97 (5th Cir. 1969) (finding

court need not amend when complaint fails to cure

original, fatal defects).

6 Griggs v. Provident Consumer Discount Co.,

459 U.S. 56, 58 (1982) (per curiam) (“The filing

of a notice of appeal is an event of jurisdictional

significanceSSit confersjurisdiction on the court of

appeals and divests the district court of its control

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

banc) (finding that a properly filed appeal stripped

the district court of jurisdiction over matters relating to the appeal).
5

The proposed amendment would have added more parties and substantially altered the

underlying case while on appeal. The district

court knew that ifthis court found jurisdiction,

the amendment would have no effect.7 Rather

than making a guess about appellate

jurisdiction, the district court displayed

sensitivityto the well-established principle that

an appellate court normally has the power to

determine its own jurisdiction.8 This

awareness marks sound judicial administration,

not an abuse of discretion.9

IV.

A.

“We review the district court’sruling under

[rule] 12(b)(6) de novo.” Shipp v. McMahon,

234 F.3d 907, 911 (5th Cir. 2000), cert.

denied, 532 U.S. 1052 (2001). The court

must liberally construe the complaint in favor

of the plaintiff and assume the truth of all

pleaded facts. Brown v. Nationsbank Corp.,

188 F.3d 579, 586 (5thCir. 1999). “The court

may dismiss a claim when it is clear that the

plaintiff can prove no set of facts in support of

his claim that would entitle him to relief.”

Jones v. Greninger, 188 F.3d 322, 324 (5th

Cir. 1999).

FED. R. CIV. P. 8(a)’s generic pleading

requirements govern suits against

municipalities and individual defendants in

their official capacity. Anderson v. Pasadena

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

defendant fair notice of what the plaintiff’s

claim is and the grounds upon which it rests.”

Leatherman v. Terrant County Narcotics

Intelligence & Coordination Unit, 507 U.S.

163, 168 (1993) (citation omitted).

Lee argues that the district court erred by

applying a “heightened pleading standard” to

his claims against Morial and Pennington as

individuals. In Leatherman, the Court held

that federal courts could not apply a

“heightened pleading standard” immunity to

states, municipalities, and government

employeessued in their official capacity. Id. at

165, 166-67. Nothing in Leatherman spoke to

whether qualified immunity requires § 1983

plaintiffs to satisfy a heightened pleading

standard for claims against government

officials in their individual capacity.

We recognized the open question in Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en

banc), and offered a solution, recognizing that

even rule 8 requires that plaintiffs plead “more

7 Dayton Indep. Sch. Dist. v. U.S. Mineral

Prods. Co., 906 F.2d 1059, 1063-64 (5th Cir.

1990) (declaring amended complaint ineffective

because district court had significantly changed the

status of the case before the court of appeals).

8 As the Eight Circuit explained in a similar

case:

[A]ppellate jurisdiction is primarily an issue

for the appellate court. Therefore, if an

appeal is taken from an interlocutory order

and the issue of appealability is in doubt, the

district court should stay its hand until we

resolve the issue of our jurisdiction.

State ex. rel. Nixon v. Couer D’Alene Tribe, 164

F.3d 1102, 1106-07 (8th Cir. 1999).

9 Lee also fails to point out any harm caused by

the refusal to amend. In its June 2001,

memorandum, the court considered both the

original complaint and the rule 7 reply’s

allegations. Lee does not explain why refusing to

permit formal amendment affected the facts

considered by the district court when resolving the

rule 12(b)(6) motion.
6

than conclusions.” Id. at 1431, 1434. If the

complaint alleges only conclusions, the court

should order the plaintiff to file a reply to the

answer under FED. R. CIV. P. 7(a). Id. at

1433.10 The court then considers whether the

complaint and rule 7 reply “support[ ]” the

claim “with sufficient precision and factual

specificity to raise a genuine issue as to the

illegality of defendant’s conduct at the time of

the alleged acts.” Id. at 1434.11 The district

court correctly applied the heightened pleading

requirement required by Schultea and permitted by rule 7.12

B.

Holding a municipality or a municipal official acting in his official capacity liable under

§ 1983 requires a finding of a municipal custom or policy. Kentucky v. Graham, 473 U.S.

159, 165-66 (1985); Monell, 436 U.S. at 694.

The official policy or custom must inflict the

plaintiff’s injury. Monell, 436 U.S. at 694.

To show an unconstitutional policy or custom, the plaintiffmust (1) identify the policyor

custom, (2) connect the policy or custom with

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

(5th Cir. 1984) (en banc). We define an

official policy as “a policy statement, ordinance, regulation, or decision that is

officially adopt ed and promulgated by the

municipality’s lawmaking officers or by an

officialto whomthe lawmakers have delegated

policymaking authority.” Johnson v. Moore,

958 F.2d 92, 94 (5th Cir. 1992). Although

even a single decision by a final policymaker

can establish official policy, Pembaur v.

Cincinnati, 475 U.S. 469, 483-84 (1986), only

the decisions of officials possessing “final

policy making authority” represent official

policy. Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989) (emphasis added).

The district court dismissed all of Lee’s

claims against the city and Morial and

Pennington in their official capacities. The

complaint identified the mayor as the person

10 Rule 8(a)(2) does not apply to rule 7 replies,

because rule 8(a)(2) applies only to “original

claim[s], counterclaim[s], cross-claim[s], or thirdparty claim[s].” Id.

11 Several panels have applied the Schultea

standard. E.g., Shipp, 234 F.3d at 912 (“[I]f the

pleadings on their face show an unreasonable violation of a clearly establish[ed] constitutionalright,

the defense of qualified immunity will not sustain

a motion to dismiss under Rule 12(b)(6).”); Reyes

v. Sazan, 168 F.3d 158, 161-62 (5th Cir. 1999)

(reversing district court for failure to order

Schultea reply when initial complaint only alleged

“bare conclusion[s]”).

12 Our precedent actually supports applying the

pre-Leatherman pleading standard to claims

against individual officers. Anderson, 184 F.3d

439 (“This court thereafter declined to abandon the

requirement, articulated in Elliott v. Perez, 751

F.2d 1472 (5th Cir. 1985), that plaintiffs suing

governmental officialsin theirindividual capacities

must allege specific conduct giving rise to a

constitutional violation.”) (citation omitted); Meadowbriar Home for Children, Inc. v. G.B. Gunn,

81 F.3d 521, 531 (5th Cir. 1996) (finding that

Elliot’s pleading requirement for individual

defendants survived both Leatherman and Schultea). The continued validity of Elliott’s heightened

(continued...)

12(...continued)

standard for individual defendants renders the

district court’s application of Schultea’s pleading

standards harmless. See Brandley v. Keeshan, 64

F.3d 196, 200 (5th Cir. 1995). In this case,

however, we apply Schultea, because the district

court ordered a rule 7 reply.
7

responsible for the NOPD and Pennington as

the person who held a press conference

labeling Lee a rapist. The district court found

this insufficient to allege an unconstitutional

official policy, to identify the final policymaker

under state or local law, or to establish the

city’s liability for that person’s actions. Lee

does not make a single argument or identify a

single fact on appeal that would establish liability for the city or Morial and Pennington in

their official capacity; we therefore assume

that he appeals only the dismissal of his claims

against Morial and Pennington in their

individual capacity.

C.

Officials who perform discretionary duties

can assert the defense of qualified immunity

when sued in theirindividual capacity. Harlow

v. Fitzgerald, 457 U.S. 800, 815, 818 (1982).

To overcome qualified immunity, the plaintiff

must demonstrate (1) the violation of a

constitutional right clearly established at the

time of the incident and (2) an objectively reasonable official would consider the conduct

unlawful. Hare v. City of Corinth, 135 F.3d

320, 325 (5th Cir. 1998). Because Lee’s

pleadings do not allege violations of

constitutional rights, we need not address the

question of objective reasonableness.

V.

Lee argues that his pleadings state a claim

for violating hisright to due process under the

Fourteenth Amendment. He argues that, contrary to the district court’s finding, he

established his status as a permanent civil

servant and that Morial and Pennington did

not afford him adequate pre-suspension

process. Lee also contends that Pennington’s

press conference compromised his reputation

as a peace officer without due process. The

Supreme Court has squarely rejected his first

theory of recovery, and Lee’s pleadings fail to

allege an essential element of the second.

A.

To state a claim for deprivation of due process, Lee must plead and prove (1) the

deprivation of a constitutionally protected

interest and (2) constitutionally inadequate

procedures. Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 538, 541 (1985).

To resolve the scope of Lee’s constitutionally

protected property interests, we must look to

state law. Garcia v. Reeves County, Texas, 32

F.3d 200, 203 (5th Cir. 1994).

State law determines whether a public employee has a statutory right to continue work

and receive pay. Most states give workers a

statutory right to continued employment but

not a particular job or position. Suspending

the public employee without pay can raise

more serious constitutionalquestionsthan suspending the public employee with pay. Davis

v. Mann, 882 F.2d 967, 973 (1989). Some

state laws also create a property interest in the

non-pecuniary benefits of a particular

occupation, such as reputation or status.

Kinsey v. Salado Indep. Sch. Dist., 950 F.2d

988, 997 (1992) (en banc) (finding that state

law did not establish such a property right).

In his appellant’s brief, complaint, and

rule 7 reply, Lee alleges various and confusing

sources of his right to continued employment.

The district court found that his descriptions of

state law were only conclusional and that he

had not alleged a property right to avoid

suspension. We find it unnecessary to reach

the question of his right to avoid suspension

under Louisiana state law because the

defendants did not have an obligation to

provide a pre-suspension hearing.
8

When determining the adequacyof process,

we must balance three factors: (1) the private

interest affected; (2) the risk of erroneous deprivation from current and proposed

procedures; and (3) the government’sinterest.

Matthews v. Eldridge, 424 U.S. 319, 335

(1976). The Supreme Court twice has held

that public employers may immediately

suspend employees without pay who have

been charged with felonies. 

In FDIC v. Mallen, 486 U.S. 230, 232

(1988), regulations permitted the FDIC to suspend indicted officials. The parties and the

majority agreed that a high-ranking bank official criminally indicted for making misleading

statements to the FDIC did not have a constitutional right to a presuspension hearing.

Id. 240-41. The state’s interest in preserving

public confidence in the bank outweighs the

individual interest in receiving pay for a few

months or weeks. Id. The grand jury’s ex

parte finding of probable cause provides a sufficient basis for both the arrest and the

suspension. Id. The Court described the more

difficult and relevant constitutionalquestion as

how long the suspended employee must wait

before a post-suspension hearing. Id. at 242,

246-47. We need not linger on this question,

however, because Lee has not asserted in any

of his pleadings or briefs that the NOPD violated his due process rights by denying a postsuspension or pretermination hearing. He argues only the illegality of his suspension.

In Gilbert v. Homar, 520 U.S. 924, 926-27

(1997), a university suspended a campus police officer without pay immediately after his

arrest in a drug raid. The police filed a

criminal complaint alleging felony violations,

which they later dismissed, but the university

still demoted the officer to groundskeeper before ending the suspension. Id. at 927. The

Court reasoned that the employee has only a

slight propertyinterest in avoiding a temporary

suspension and post-suspension process could

satisfy that need. Id. at 932. The Court also

explained that “the State has a significant

interest in immediately suspending, when felony charges are filed against them, employees

who occupy positions of great public trust and

high public visibility, such as police officers.”

Id. The Court held that an arrest and formal

charge provides the same ex parte finding of

probable cause created by an indictment. Id.

at 934. The Court emphasized that the public

employer’ real constitutional duty was to provide prompt and adequate post-suspension

procedures. Id. at 934-35.13

Lee’s pleadings seek relief only for the unlawful suspension, and his arrest and formal

charge were sufficient to justify the

suspension. He does not argue that he did not

have access to post-suspension procedures.

Nor does he argue that the NOPD’s pretermination procedures failed to pass

constitutionalmuster. The Supreme Court has

held that when the state brings felony charges

against the employee the public employer may

promptly suspend the employee without a

hearing.

B.

Lee also argues that the court erred by dis13 Public employers need not provide a fullfledged presuspension hearing. Caine v. M.D.

Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en

banc) (finding informal appearances before

committee satisfied due process requirements

before suspension so long as hospitallater provided

an adequate postsuspension hearing); Darlak v.

Bobear, 814 F.2d 1055, 1064 (5th Cir. 1987)

(finding that an informal investigation and

opportunity to deny allegations were adequate

process prior to suspension).
9

missing his due process claim premised on

Pennington’s press conference and reputational injury. Lee, however, has never alleged that

he requested a name-clearing hearing, which is

a necessary element of the constitutional tort.

The Fourteenth Amendment recognizes an

individual’s liberty interest in his “good name,

reputation, honor, or integrity.” Wisconsin v.

Constantineau, 400 U.S. 433, 437 (1971). A

public employer implicates this protected liberty interest by making public defamatory

statements about an employee when refusing

to hire, suspending, firing, or making other

employment decisions. Owen v. City of Independence, Mo., 445 U.S. 622, 633 n.13

(1980); Dennis v. S & S Consol. Rural High

Sch. Dist., 577 F.2d 338, 341-42 (5th Cir.

1978). To prevail on his § 1983 claim based

on the defendants’ refusal to hold a nameclearing hearing, Lee must demonstrate:

(1) that the NOPD took an adverse

employment action; (2) that Pennington made

stigmatizing charges against himin connection

with the action;(3) that the charges were false;

(4) that the defendants did not provide notice

or an opportunity to be heard prior to the

action;(5) that the defendants made the charges public; (6) that he requested a hearing to

clear his name; and (7) that the defendants

refused the request. Hughes v. City of

Garland, 204 F.3d 223, 226 (5th Cir. 2000)

(citations omitted).

Lee has never pleaded factsshowing that he

requested and was denied a hearing to clear his

name. This court repeatedly has emphasized

that the plaintiffmust request such a hearing.14

Lee argued in the district court, although he

does not repeat the argument in his appellant’s

brief, that incarceration barred him from

requesting the hearing. We previously have

held that a public employee’s hospitalization

did not excuse the employee from requesting

a name-clearing hearing. Galloway v.

Louisiana, 817 F.2d 1154, 1158 (5th Cir.

1987). 

Like the plaintiffin Galloway, Lee does not

explain why he could not request the hearing

from jail by correspondence or through his attorney. Lee’s failure to plead a request for a

name-clearing hearing and a denial is fatal to

this claim.

VI.

Lee argues that the district court erred by

dismissing his claims under the FourthAmendment. Lee, however, has never identified a

coherent legaltheoryor constitutionaltort that

would entitle him to recover for invasion of his

Fourth Amendment right to privacy.

The Fourth Amendment does not create a

generalright protecting public employeesfrom

defamation. Paul v. Davis, 424 U.S. 693, 712

(1976);Kerr v. Lyford, 171 F.3d 330, 339 (5th

Cir. 1999). The Fourth Amendment

establishes a tortfor malicious persecution, but

the plaintiffmust allege that the criminal action

terminated in hisfavor. Kerr, 171 F.3d at 340.

Lee admitsthat a juryultimatelyconvicted him

of rape. 

Finally, Lee argues that he has stated a

claim for “false light invasion of privacy,” but

14 Rosenstein v. City of Dallas, 876 F.2d 392,

396 & n.7 (5th Cir.), vacated in part, 884 F.2d

174 (5th Cir. 1989), reinstated in relevant part,

(continued...)

14(...continued)

901 F.2d 61 (5th Cir. 1990); Compos v. Guillot,

743 F.2d 1123, 1126 (5th Cir. 1984); In re Selcraig, 705 F.2d 789, 796 (5th Cir. 1983).
10

that tort arises under Louisiana law, not the

federal constitution. Doe v. Doe, 941 F.2d

280, 288 (5th Cir. 1991). The district court

properly dismissed the Fourth Amendment

claims, because Lee has never articulated a

coherent legal theory or the necessary facts.

VII.

Lee asserted an equal protection violation

in the district court; if he raises the argument

on appeal, he doesso only in passing. Regardless, the district court properly dismissed the

claim for the reasons set forth in its June 2000

and June 2001 memoranda.

VIII.

Lee alleges that Pennington’s press

conference deprived him of a fair criminal trial

and violated his Sixth Amendment right to an

impartial jury. The district court refused to

consider this claim because the state criminal

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. United 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

conviction or sentence has been reversed on

direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized

to make such a determination, or called into

question by a federal court’sissuance of a writ

of habeas corpus.” Id. at 486-87. If the

conviction remains in place, the plaintiff’s

proper remedy lies in direct appeal to state

courts or filing for a writ of habeas corpus

from state or federal courts. Id. 

IX.

Lee reassertsstate law claims on appeal onlyindirectly. For example, he repeatedly refers

to the “false light invasion of privacy claim”

cognizable under Louisiana law. The district

court did not pass on those claims. Instead,

after dismissing the federal claims, it refused to

exercise supplemental jurisdiction. Lee has

not advanced a reason to classify that decision

as an abuse of discretion. We cannot think of

a relevant factor that would counsel in favor of

retaining jurisdiction, so we affirm.15 Because

the district court dismissed the claims without

prejudice, Lee still has the option of re-filing

them in state court.

AFFIRMED.

15 28 U.S.C. § 1367(c) (“The district courts

may decline to exercise supplemental jurisdiction

over a claim . . . if . . . the district court has

dismissed all claims over which it has original

jurisdiction.”);Cabrol v. Town of Youngsville, 106

F.3d 101, 110 (5th Cir. 1997) (dismissing

appellant’s state law claims because he failed to

provide a persuasive reason why the court should

have retained jurisdiction).