Lee v. Morial ( 2002 )

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