IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 11-10264 Summary Calendar

ZENA D. CRENSHAW-LOGAL, Plaintiff - Appellant

v. CITY OF ABILENE, TEXAS, Defendant - Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 1:10-CV-132

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * P l a i ntiff-appellant Zena Crenshaw-Logal claims that her First Amendment rights were “chilled” when police searched a third party’s computer during a criminal investigation of that third party. The district court dismissed for lack of standing. We affirm. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D August 4, 2 011 Lyle W . Cayce Clerk

Pursuant to 5th Cir. R. 47. 5, the Court has determined that this opinion should * not be publi shed and is not prec edent except under the li mited circums tances set forth in 5 th Cir. R. 4 7.5 .4. Case: 11-10264 Document: 00511561727 Page: 1 Date Filed: 08/04/2011No. 11-10264 I In Ap r i l 2010, nonparty Michayl Mellen was arrested in Abilene, Texas ( t h e City), on charges of possessing child pornography. Mellen’s compute r allegedly was searched and seized by City police officers pursuant to a warrant. Crenshaw-Logal at one time was an Indiana lawyer and currently is a 1 “volunteer administrator of multiple grassroots, nonprofit, non-governm e n t al organizations.” Crenshaw-Logal and Mellen “communicated and pursued social justice initiatives throughout most of this mi l lennium” in the context of their mutual association with POPULAR, Inc., a “national legal reform advocate.” C r e n s h a w - L o g a l “shared many thoughts and impressions w ith M e l l e n b y w ri t t e n communications, some of which are reportedly among his electronic and paper files searched a n d/ o r s e i zed by” the City. According to Crenshaw-Logal, her writings “reflect sensitive aspec t s of [her] advocacy, including lawful but controversial reforms [she is] contemplating and otherwise pursuing with fellow citizens and organizations for certain Taylor county, Texas residents.” Crenshaw-Loga l , a c ti n g p r o se, filed this § 1983 action for damages against the City in June 2010. She claims that the City i s “ c h i l l [ing]” her First (and Fifth) Amendment rights b e c a u s e th e C i ty “th e o r e t i c a l l y” h a s “unfettered access” to the “work product material” on Mellen’s computer. She also alleges that the 2

Crens haw-Loga l has been susp ended from pract icin g law in t h e s t ate of Indiana 1
as well as the Seventh Circuit. See Crensh aw v. Antokol , 206 F. App ’x 560 , 565 (7 t h Cir. 20 07).
The complaint could be read as asserting clai ms under the feder al Priva cy 2 Protection Act, 42 U.S. C. § 200 0aa

. Crens haw-Loga l has conc eded, however, that “[a]t
no point in my pleading do I directly or indirectly assert that the Priva cy Protection Act (PPA) provides me a clai m for relief.” We al so note that the complaint does not assert clai ms underthe Fourth Amendment.
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City did not “take care to assure” that its search of Mellen’s computer was “conducted in a manner that minimizes unwarranted intrusions upon privacy,” although she offers no factual basis for this allegation. The district court dismissed Crenshaw-Logal’s complaint with prejudice. The district court held that Crenshaw-Logal lacked constitutional standing because her injury, if any, was “far too remote.” Alternatively, the district court held that Crenshaw-Logal failed to state a claim under § 1983 because she did not sufficiently identify an unlawful City custom or policy. Crenshaw-Logal filed a Rule 60(b)(6) motion for relief from t h e district court’s judgment. The motion essentially restated the allegation s i n t h e complaint. The district court denied the motion, and Crenshaw-Logal appealed. II We review de novo a dismissal for lack of subject matter jurisdiction under R u l e 1 2(b)(1) or for failure to state a claim under Rule 12(b)(6). Ramming v
. United States , 2 81 F.3d 158, 161 (5th Cir. 2001). We review for abuse of discretion a denial of a Rule 60(b)(6) motion. Callon Petroleum Co. v. Frontier Ins. Co. , 351 F.3d 204, 210 (5th Cir. 200 3). When a motion to dism i s s f o r lack of jurisdiction “is filed in conjunction with other Rule 12 motions, the court should consider t h e Rule 12(b)(1) jurisdictional atta c k b e f o r e a ddressing any attack on the merits.” Ramming , 281 F.3d at 161; In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir. 2010). Moreover, when a complaint could be dismissed f o r both lack of jurisdiction and failure to state a claim, “ t h e c o u r t should dismiss only on the jurisdictional ground under [Rule] 12(b)(1), without reaching the q u e s t i o n of failure to state a claim under [Rule] 12(b)(6).” Hitt v. City of Pasadena , 561 F.2d

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606, 608 (5th Cir. 1977). This practice prevents court s from issuing advisory opinions. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 101 (1998). The practice also prevents courts without jurisdiction “from prematurely dismissing a case with prejudice.” Ramming , 281 F.3d at 161. III Article III standing is a jurisdictional prerequisite. Steel , 523 U.S. at 101; 3 Xerox Co r

p. v. Genmoora Corp. , 888 F.2d 345, 350 (5th Cir. 1989). At a minimum, Article III requires a plaintiff to show an “injury in fact” that is fairly traceable to the defendant’s conduct and that is l i k e l y t o be redressed by the
reques t e d r e l ief. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). An

Article III standing is not to be confu sed with what is often loosely referred to 3
as Fourth Amendment standing. Rakas v. Illinoi s , 439 U .S. 128 , 138 -39 (197 8). An indivi dual may not clai m the prote ct i o n o f the Fourth Amendment unless she has a reasonabl e expectation of priva cy in the place searched

. Id. at 1 43. An indiv idualis said to have “standing” under the Fourth Amendment if she has a reasonabl e expectation of privacy. See United State s v. Her nandez , __F.3 d__, 201 1 WL 275 091 4, at *2 (5th Cir. 201 1); United State s v. P ac k , 6 12 F.3 d 341 , 347 (5th Cir. 201 0). Although Article III standing and Fourth Amendment standing may be “intertwi ned,” Fourth Amendment standing ulti matel y is a matter of substantiv e la w a n d n o t a jurisdictional prer equisi te. Rakas , 439 U.S. at 140 ; see als o United State s v. Mae stas , 941 F.2 d 273 , 276 n.2 (5th Cir. 199 1); United States v. Ewing , 638 F.3 d 122 6, 123 0 (9th Cir. 201 1); United S tate s v
. Dyer , 580 F

. 3 d 3 8 6 , 3 9 0 (6th Cir. 200 9); United S tate s v
. Nechy , 827 F.2 d 116 1, 116 4 -6 5 (7th Cir. 198 7). The Supr eme Court has recen tly cautioned courts to “proc eed with care when considering the whole conc ept of privacy expectations in communications made on electronic equipment.” City of Ontar io, Cal

. v. Quon , 130 S. Ct. 261 9, 262 9 (201 0). Crens haw-Loga l’s complaint does not invoke the Fourth Amendment, nor does Crens haw-Loga l contend that she has a reasonabl e expectation of privacy in communications sent to, received by, and stored on Mellen’s computer

. Acc ordingly, our decision need not and does not addres s Fourth Amendment standing.

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injury in fact means injury that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. (quotation marks omitted). Crenshaw-Logal has failed to allege an injury in fact. In essence, Crenshaw-Logal alleges that her speech is being chilled because the City might

use communications she sent to Mellen to her detriment at som e point in the future. The Supreme Court rejected this theory of standing almost forty years ago. In Laird v. Tatum , the Supreme Court held that allegations of “subjective ‘chill’ are n o t a n a dequate substitute for a claim of specific present objective harm or a threat of specific future harm.” 408 U.S. 1, 13-14 (1972). The “mere 4 existence, without more, of a governmental investigativ e and data-gathering activity that is alleged to be bro a d e r in scope than is reasonably necessary for the accomplishment of a valid governmental purpose” is not sufficient to invoke the jurisdiction of the federal courts. Id. at 10. In other words, an injury in fact does not arise merely from an individual’s knowledge that the government “was engaged in cer t ain activities or from the individual’s concomitant fear that,

a r m e d w ith the fruits of those activities, the agency might in the future t a k e some other and additional action detrimental to that individual.” Id. at 11. Her e , Crenshaw-Logal has alleged nothing more than subjective, selfimposed chill. She alleges that t h e C i t y “reportedly” and “theoretically” has

access to communications stored on Mellen’s computer, but she does not allege that the City actually has done or is likely to do anything injurious to her with those communications. Nor does she even allege that the City h a s i n f a c t read the communications. Crenshaw-Logal’s unsupported speculation that the City

See als o Morr ison v. Bd. of Educ. of Boyd Cnty. , 521 F.3 d 602 , 609 -10 (6th Cir. 4 200 8).
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might use the communications to her detriment at some point in the future is a far cry from the imminent threat of particularized harm necessary to establish constitutional standing. Although Crenshaw-Logal acknowledges that her injury is merely “theoretical[],” she suggests that “[d]isc o v e ry m ay c o n f i r m a n d a c c o r di n gl y n u dge this case ‘across the line from conceivable to plausible.’” This argument puts the cart before the horse. Crenshaw-Logal does n o t get discovery until she pleads a plausible claim. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007 ). For the reasons stated, we find that the district court properly dismissed Crenshaw-Logal’s compla i n t for lack of standing. We further find that the district court did not abuse its discretion in denyi n g Crenshaw-Logal’s Rule 60(b)(6) motion, which essentially restates the a l l e g a tions in her complaint. Although a pro se litigant ordinarily i s e ntitled to file an amended complaint before her claims are dismissed, Crenshaw-Logal never moved for leave to amend. Nor has she provided any indication in her complaint, her opposition to the City’s motion to dismiss, or her Rule 60(b)(6) motion that she would be able to establish standing in an amended complaint. A district court does not abuse its discretion in d e n y i n g leave to amend when, as here, amendment would be futile. See Briggs v. Mississippi , 331 F.3d 499, 508 (5th Cir. 200 3). Although we affirm the district court’s dismissal of Crenshaw-Logal’s complaint for lack o f jurisdiction, we modify the judgment. When a complaint is dismissed for lack of jurisdiction (including lack of s t a n d i ng), dismissal ordinarily should be without prejudice. See, e.g. , In re Great Lakes , 624 F.3d at 209; Fleck & Assocs., Inc. v. Phoenix, City of, and Ariz. Mun. Co r p
. , 471 F.3d 1100, 1106-07 (9th Cir. 2006); Brereton v. Bountiful City Corp. , 434 F. 3d 1213,

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1216 (10th Cir. 2006); cf. F E D

. R. C I V

. P. 41(b). We do not s e e ( a n d t h e district court did not identify) any sp e c i a l c i r c u m stances that warrant deviation from the general rule at this point. IV F o r t he reasons stated, the district court’s judgment is AFFIRMED A S MODIFIED.

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