## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-30875

Summary Calendar

_______________



### G EORGE 

### L

EE



### , III,

I NDIVIDUALLY AND ON B EHALF OF A LL T HOSE S IMILARLY S ITUATED

,



### Plaintiffs-Appellants,

VERSUS



### M ARC 

### M ORIAL



### ,

M AYOR OF THE C ITY OF N EW O RLEANS , I N H IS O FFICIAL AND I NDIVIDUAL C APACITY ;



### C ITY OF 

### N EW 

### O RLEANS 

### ;

R ICHARD 

### P ENNINGTON



### , C HIEF OF P OLICE FOR THE C ITY OF N EW O RLEANS

, IN H IS I NDIVIDUAL AND O FFICIAL C APACITY

,



### Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(99-CV-2952)

_________________________ April 26, 2002

Before J ONES , S MITH , and

E MILIO M. G ARZA , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * The New Orleans Police Department

(“NOPD”) su spended George Lee, III, with-

* Pursuant to 5 TH C IR

. R. 47.5, the cou rt has

(continued...) * (...continued)

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. 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 of several counts of forcible

rape and kidnaping . Lee sued, alleging that

NOPD’s suspension and press conference violated the federal and Lou i siana constitutions

a nd Louisiana statutes. The district court

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

Sixth, and Fourteenth Ame ndments and dismissed the state law claims without prejudice

becaus e it declined to exercise supplemental

jurisdiction. Finding no error, we affirm.

I.

In August 1999, NOPD officers arrested

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

NOPD suspended Lee for 120 days for violating an internal rule requiring officers to adhere

to the law . The chief of the NOPD, Richard

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

before an Orleans Par ish judge ruled that the

officers lacked probable cause f or the arrest.

The state then dropped the charges. 1

In November 1999, a grand jury indicte d

Lee on two counts of sexual battery, two

counts of extor t ion, and three counts of second degree kidnaping. Lee pleaded not guilty,

and a jury fo und him not guilty of extortion but hung on one coun t of sexual battery and

two counts of kidnaping. The court reset the

case for tr ial, but the state dropped the

charges. 2

In February 2000, the state launched a second case, reinstating the rema ining 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,

b ut 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 st ate charged Lee with seven counts of

forcible rape and five counts of second degree

kidnaping. Lee pleaded not guilty. The trial

began in October 2000 but la st ed only seven

days; the court de clared a mistrial because of

prosecutorial misco nduct because the

prosecutor had pla n ted evidence on the

defendant’s clothing sometime bet ween the

second and third trials. 3 In February 2001,

Lee faced trial a fourth time; the jury convicted

him on all counts and sentenced him to thirty

1 This account of the August 1999 arre st and

suspension reflect s 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 initi al 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 Louisi ana Supreme

Court; we also omit the contempt proc eedings

spawned b y prosecutorial misconduct. None of

these events is directly relevant to the appeal.

3 The Louisiana Court of Appeal’s decisions

provide a u seful summary of the criminal case’s

p rocedural history. S ee 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 unde r 42

U.S.C. § § 1981 and 1983 for alleged

v iolations of his constitutional rights. The

c o mplaint named as defendants Mayor Marc

Morial, NOPD Chief Richard Pennington, and

the city of New Orleans. Lee sued Morial and

Pennington in their individual and official

capacities.

The complaint alleged several const itutional

violations stemming from the suspension and

its publication. First, Lee alleged that the

defendants had violated the Fourteenth

Amendment’s Due Process Clause by failing to

give him notice of the suspension, denying him

a presuspension name-clearing hearing, and

publicizing t he 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 po licy that

systematically disadvanta ged black officers.

Finally, Lee claimed that t he publication

compromised his Sixth Amendment right to an

impart ial jury in his subsequent criminal trial.

In December 1999, the defendants filed an

answer and first asserted t hat 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 after the conference; but the district

court res e rved the right to extend any of the

deadlines by granting a motion for a

continuance.

Defendants moved to dismiss under F ED

. R. C IV

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

and Morial and Pennington in their o f ficial

capacity because M

onell v. City of New York

Dep’t of Social Servs.

, 43 6 U.S. 658 (1978),

r equires the plaintiff to point to a municipal

custom or policy that inflict ed the injury. Lee

failed to d o so. The court’s m em orandum

described a willingness to reinstate the claims

if Lee amended the complaint appropriately.

The court then turned to the claims against

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

set forth facts wit h sufficient particularity to

create individual liabilit y. The court dismissed

the Fourth and Sixth Amendment claims, then

ordered Lee to fil e a Schultea reply to the

answer supplying specific facts that supported

his other claims. First, Lee had an obligation

t o identify particular state law or contractual

bases for his property right to avoi d

suspension or retain his position. Second, the

c ourt insisted that Lee plead wheth er he

requested a name-clearing hearing. Third, the

court ordered Lee to explain in greater detai l

the facts suppo r ting his Equal Protecti on

claim.

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

Reply to Defendant’s Answer and Affirmat ive

Defenses.” The court ruled that Lee’s reply

failed to satisfy the requirements of its earlier

o rder. The reply and proposed amendment s

sought to add mult iple new defendants and

substantially to alter the original co mplaint.

The court held that Lee was not in compliance

with the o rder and rejected the reply, then

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

Memorandum and Order more carefully and

attem pt to comply with the precise directions

given.” The court did not specify a due date

for the next Schultea reply. Lee filed a notice4

of appeal from the order dismissing his Fourth

and Sixth Amendment claims.

Lee filed a second Schultea reply and a mot io n to amend the original complaint. The

court ordered the case closed because of the

pending cri minal 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 plaint iff to re-urge

t he motion if the case is restored to t he trial

docket.”

A panel of this court grant ed Lee’s

unopposed motion to dismiss the appeal

without prejudice. Then, after Lee’s

conviction, defendants filed a moti on to

dismiss the remainder of the claims under F ED

. R. C IV

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

the motion to dismiss. The district court filed

a memorandum concluding that Lee had never

effectively amended 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 complai nt . After a responsive

pleading has been filed, the court should grant

“leave” to amend “freely” “when justice so requires.” Fed. R. C IV

. P. 15(a). We review for

abuse of discretion the refusal to allow amendment. 4

Lee filed his fi

rst 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 t he court’s memorandum. If an

amended complaint cannot survive a motion to

dismiss, a district court has the discretion to

refuse the amendment. 5 The district court

instead instructed Lee to stud y the court’s

m emorandum and submit amendments that

would cure the complaint’s deficiencies.

Lee then filed his second Schultea reply and

a motion to amend. The court deni ed the

motion because Lee had already filed an appeal

with the Fifth Circu it. Di stri ct courts do not

abu s e their discretion by denying a motion to

amend after the plai nt iff has appealed the

j udgment. A proper notice of appeal divests

the district court of jurisdiction o ver all

matters relating to the appeal. 6 Although this

court may have lacked j u risdiction, and the

district court may have retained the power to

amend, the district court chose not to al l ow

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 Trade Corp. 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 f iling

of a notice of appea l is an event of jurisdictional

significance SS

it confers jurisdiction on the court of

appeals and divests the district court of its control

ove r those aspects of the case involved in the

appeal.”) (c itation omitted); U nited States v.

Hitchmon , 602 F.2d 689, 694 (5th Cir. 1979) (en

banc) (finding that a properly filed appeal stripped

t he 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 if this court found jurisdiction,

the amendment would have no effect. 7 Rather

t han making a guess about appellat e

jurisdiction, the district court di splayed

sensitivity to the well-established principle that

an appellate court normally has the power to

determine its own jurisdiction. 8 This

awareness marks sound judicial administrati on,

not an abuse of discretion. 9

IV.

A.

“We review the district court’s ruling under

[rule] 12(b)(6) de novo .” S hipp 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 plaint iff and assum e t he truth of all

pleaded facts. B rown v. Nationsbank Corp

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

may dismiss a claim when it is clear that the

plaint iff can prove no set of facts in support of

his claim that would entitle him to relief.”

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

Cir. 1999).

F ED

. R. C IV

. P. 8(a)’s gene ric pleading

requirements govern sui ts against

municipalit ies and individual defendants in

their official capacity. Anderson v. Pasadena

Indep. Sch. Dist.

, 184 F.3d 439, 443 (5th Cir.

1999)

. L ee need only provide “‘a short and

plain statement of the claim’ that will give the

defendant fair notice of what the plaint iff’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 Mori al and Pennington as

individuals. In L eatherman

, the Court held

that federal courts could not apply a

“heightened pleading standard” immunit y to

states, municipalities, and government

employees sued in their official capacity. I d. at

165, 166-67. Nothing in L eatherman spoke to

whether qualified immunity requires § 1983

plaint iffs to satisfy

a heightened pleading

standard for claims ag ainst 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 plaint iffs 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 Circ u it 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,

m emorandum, the court considered both t h e

original com

plaint and the rule 7 reply’s

allegations. Lee does not explain why refusing to

permit f or mal amendment affected the facts

considered by the district court when resolving the

rule 12(b)(6) motion.6

tha n conclusions.” I

d. at 1431, 1434. If the

complaint alleges only conclusi o ns, the court

should order the plaint iff to file a reply to the

answer under F E D

. R. C IV

. P. 7(a). I d. at

1433. 10 The court then considers whether the

c omplaint and rule 7 reply “support[ ]” the

claim “with sufficient precision and factual

specificity to raise a genuine issue as to the

illegalit y of defendant’s conduct at the time of

the alleged acts.” I

d. at 1434. 1 1 The district

court correctly

applied the heightened pleading

requirement required by S c hultea and permitted by rule 7. 12 B.

Holding a municipality or a munici p al official acting in his official capacity liable under

§ 1983 requires a finding of a municipal custom or policy. K

entucky v. Graham

, 473 U.S.

159, 165-66 (1985); Monell

, 436 U.S. at 694.

The official policy or cust o m must inflict the

plaint iff’s injury. Monell , 436 U.S. at 694.

To show an unconstitutional policy or custom, the plaint iff must (1) identify the policy or

custom, (2) connect the policy or custom with

the government entity, and (3 ) show that the

policy caused th e 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

o fficially a dopt ed and promulgated by the

municipalit y’s lawmaking officers or by an

official to whom the lawmakers have delegated

policymaking authori ty .” J ohnson v. Moore

, 958 F.2d 92, 94 (5th Ci r. 1992). Al though

even a single decision by a final polic y maker

can establish official policy, Pembaur v.

Cincinnati

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

the decisions of of

ficials possessing “

f inal

policy making authorit

y ” represent official

policy. J ett v. Dallas Indep. Sch. D ist. , 491

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

The district court dismissed all of Lee’s

claims agains t the city and Morial and

Pennington in their official capacities. The

complai nt 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 t o “original

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

11 Sever al panels have applied the S chultea

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] constitutional right,

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. A nderson

, 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 officials in their individua l capacities

must alle ge specific conduct giving rise to a

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

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

Elliot ’s pleading requireme nt for individual

defendants survived both Leatherman an d Schultea ). The continued validity of E lliott’s heightened

(continued...) 12 (...continued)

sta nda rd for individual defendants renders the

district court’s application of Schultea’s pleading

standards harmless. S ee Brandley v. Keeshan

, 64

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

how e ver, we apply Schultea

, because the district

court ordered a rule 7 reply.7

responsible for t he NOPD and Pennington as

the person who held a press conference

labeling Lee a rapist. The district court found

this insufficient to alle ge an unconstitutional

official policy, to identify the final policymaker

under state or local law, or to establish the

city’s liabilit

y for that person’s action s

. Lee

does not make a single argument or ident ify a

single fact on appeal that would estab lish 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 Pennin gt on in their

individual capacity.

C.

Officials who perform discretionary duties

can assert the defense o f qualified immunity

when sued in their individual capacity. H arlow

v. Fitzgerald

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

To overcome qualified immunity, the plaintiff

must demonstrate (1) the violation of a

constitutional rig ht clearly established at the

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

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

320, 325 (5th Cir. 19 98). 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 cla i m

for violating his right to due process under the

Fourteenth Amendment. He argues that, contrary t o the district court’s finding, he

established his sta t us 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 reputati on

as a peace officer without due process. The

Supreme Court has sq uarely 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

i nterest and (2) constitutionally inadequa t e

pro c edures. C leveland 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. G arcia 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

statuto ry right to continued employment but

not a particular job or posi t ion. Suspending

the pub lic employee without pay can raise

more serious constitutional questions than suspending the public employee with pay. Davis

v. Mann

, 882 F .2d 967, 973 (1989). Som e

state laws also create a property interest in the

non-pecuniary bene fit s of a particular

occupation, such as reputati on 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 co nclusional and that he

had not alleged a property right to avoid

suspensi o n. We find it unnecessary to reach

the question of his righ t t o avoid suspension

under Louisiana state law because the

defendants did no t have an obligation to

provide a pre-suspension hearing.8

When determining the adequacy of process,

we must balance three factors: (1) the private

interest affected; (2) the risk of erroneous deprivation f

rom current and proposed

procedures; and (3) the government’s interest.

Matthe w s 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 F DIC v. Mallen

, 486 U.S. 230, 232

(1988), regulations permitted the FDIC to suspend indicted o ffic ials. 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 presusp ension hearing.

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

publi c confidence in the bank outweighs the

individual interest in receiving pay for a few

months or weeks. I

d

. The grand jury’s e x

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

suspension. I

d. The Court described the more

difficult and relevant constitutional question as

how long the suspended employee must wait

before a post-suspension hearing. I d. 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 t he 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 universit y suspended a campus police officer without pay

immediately after his

arrest in a drug raid. The police filed a

crim inal complaint alleging felony violations,

which they later dismissed, but the university

still demoted the officer to groundskeeper before ending the susp ension. I d

. at 927. The Court reasoned that t he employee has only a

slight property interest in avoiding a temporary

suspension and post-suspension process could

satisfy that need. I

d. at 932. The Court also

explained that “the State has a significa n t

interest inimmediately suspending, when felony charges are filed against them, employees

who occupy positions of great public trust and

high public visibilit y, such as police officers.”

Id. The Court held that an arrest and formal

charge provides the same e x parte finding o f

probab le cause created by an indictment. I d.

at 934. The Court emphasized that the public

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

procedures. Id. at 934-35. 13

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

charge were sufficient to justify the

suspension. He does not argue that he did not

have access to post-suspension procedu res.

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

constitutional muster. The Supreme Court has

held that when the state brings felony charges

against the employee the public employer may

promptly suspe n d the employee without a

hearing.

B.

Lee also argues that the court erred by dis13 Public employers need not pro vide a fullfled ged presuspension hearing. C aine v. M.D.

Hardy

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

banc) (finding informal app earances before

committee satisfied due process r equirements

before suspension so long as hospital later 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 ad equate

process prior to suspension).9

missing his due process claim pr emised 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.” W isconsin v.

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

public employer implicates this protected liberty interest by making p u blic defamatory

statements abo ut an employee when refusing

to hir e, suspending, firing, or making other

emp lo yment decisions. O wen 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 t he defendants’ refusal to hold a nameclearing hearing, Lee must demons t rate:

(1) t hat the NOPD took an adverse

employment action; (2) that Pennington made

stigmatizing charges against him in connection

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

(4) that the defendants did not provide notice

or an opportuni ty to be heard pri or 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 def endants

r efused the request. H ughes v. City o

f

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

(citations omitted).

Lee has never pleaded facts showing that he

requested and was denied a hearing to clear his

name. This court repeatedly has emphasized

that the plaint iff must 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

h eld that a public employee’s hospitalizati o n

did not excuse t he employee from requesting

a name-clearing hearing. G alloway v.

Louisiana

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

1987).

Like the plaint iff in Gallow ay

, Lee does not

explain why he could not request the hearing

from jail by correspondence or through his attorney. Lee’s failure t

o plead a request for a

name-clearing hearing and a denial is f atal to

t his claim.

VI.

Lee arg ues that the district court erred by

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

coherent legal theory or constitutional tort that

would entitle him to recover for invasion of his

Fourth Amendment right to privacy.

The Fourth Amendme nt does not create a

general right protecting public employees from

defamation. P aul v. Davis

, 424 U.S. 693, 712

(1976); Kerr v. Lyford

, 171 F.3d 330, 339 (5th

Cir. 1999 ). The Fourth Amendment

establishes a tort for malicious persecution, but

the plaint iff must allege that the criminal action

terminated in his favor. K err

, 171 F.3d at 340.

Lee admits that a jury ultimately convicted him

of rape.

Finally, Lee argues t hat 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. ), v acated in part

, 884 F.2d

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

, (continued...) 14 (...continued)

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

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

that tort arises under Louisiana law, not the

fede ral constitution. D oe v. Doe

, 941 F.2d

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

properly dismissed the Fou rt h Amendment

claims, b ecause Lee has never articulated a

coherent legal theory or the necessary facts.

VII.

Lee asserted an equal protecti on violation

in the district c o urt ; if he raises the argument

on appeal, he does so only in passing. Regardless, the distric t co urt 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 co urt di d not

consider the claim ripe. The jury has since

convicted Lee.

We decline to addre ss t he Sixth

Amendment question for another reason. If

Lee could prove that Pennington’s comments

to the press violated his right t o an impartial

jury, his conviction would be unlawful. United State s 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 crimi nal conviction.

Heck v. Humphrey

, 512 U.S. 477, 483 (1994).

The § 1983 plaint iff challenging the legality of

a prior conviction “mus t prove that the

conviction or sentenc e 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’s issuance of a writ

of habeas corpus.” I

d. at 486-87. If the

conviction remains in place, the plaint iff’s proper remed y lies in direct appeal to state

courts or filing for a writ of habeas corpus

from state or federal courts. Id.

IX.

Lee reasserts state law claims on appeal only indirectly. For example, he repeatedly refers

to the “false light invasion o f privacy claim”

c ognizable under Louisiana law. The district

court did n o t pass on those claims. Instead,

after dismissing the federal claims, it refused to

e xercise 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

pre judice, 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 sup plemental jurisdiction

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

dismissed a ll claims over which it has original

jurisdiction.”); Cabrol v. Town of Y o ungsville

, 106

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

appellan t’s state law claims because he failed to

provide a persuasive reason why the court should

have retained jurisdiction).