Cinel v. Connick ( 1996 )


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  •                   United States Court of Appeals,
    
                                Fifth Circuit.
    
                                 No. 92-3781.
    
                      Dino CINEL, Plaintiff-Appellant,
    
                                       v.
    
     Harry F. CONNICK, Individually and as District Attorney for the
    Parish of Orleans, State of Louisiana, et al., Defendants-
    Appellees.
    
                                March 11, 1994.
    
    Appeals from the United States District Court for the Eastern
    District of Louisiana.
    
    Before DUHÉ and    EMILIO   M.   GARZA,   Circuit   Judges   and   STAGG1,
    District Judge.
    
         DUHÉ, Circuit Judge.
    
         Appellant, Dino Cinel, appeals from the district court's grant
    
    of Appellees' motions to dismiss under Federal Rule of Civil
    
    Procedure 12(b)(6).   We modify and affirm.
    
         Appellant sued numerous state actors and private persons,
    
    contending that they conspired together over a period of years to
    
    deprive him of his civil rights by making public certain allegedly
    
    confidential information gathered during a criminal investigation
    
    of him.   He also asserts state law claims for negligence, state
    
    constitutional violations, and invasion of his privacy.
    
                                  BACKGROUND
    
         In 1988 Dino Cinel was a Roman Catholic priest at St. Rita's
    
         1
          District Judge of the Western District of Louisiana,
    sitting by designation.
    
                                       1
    Catholic Church in New Orleans, Louisiana.          While Cinel was away,
    
    another priest at the rectory where Cinel lived, accidentally
    
    discovered a variety of sexually oriented materials in Cinel's room
    
    including a homemade video tape of Cinel engaged in homosexual
    
    activity, primarily with two young men, Christopher Fontaine and
    
    Ronald Tichenor. Church officials turned the materials over to the
    
    Orleans Parish District Attorney's Office.          Cinel alleges that in
    
    exchange for transactional immunity and under a confidentiality
    
    agreement, he provided the names and addresses of the other men
    
    depicted in the film to the DA's office.       Upon verifying that they
    
    were consenting adults at the time of their sexual involvement with
    
    Cinel, the DA's office decided not to prosecute Cinel.
    
         Cinel further alleges that George Tolar, while an investigator
    
    for the DA's office, during the investigation gave the names and
    
    addresses   of   Fontaine   and   Tichenor,   and   certain   unidentified
    
    documents in the DA's file, to Gary Raymond.        Raymond was a private
    
    investigator working for two lawyers, David Paddison and Darryl
    
    Tschirn.    Cinel contends that Raymond used the information given
    
    him by Tolar to solicit the two men as clients for the attorneys.
    
    One of the men, Fontaine, represented by Paddison and Tschirn, then
    
    sued Cinel and the Church in state court in 1989.              The other,
    
    Tichenor, represented by the same counsel, sued Cinel in 1991.
    
         In 1990, in connection with the Fontaine state civil suit, the
    
    state court, at the request of the Church, issued a subpoena duces
    
    tecum directing the DA's office to release the materials found in
    
                                         2
    Cinel's room to the litigants in the Fontaine suit.                    Pursuant to a
    
    consent judgment         drafted      in   response    to   the    subpoena,    by   an
    
    assistant district attorney, Raymond Bigelow, the DA's office
    
    released the materials to Paddison and Tschirn as custodians, and
    
    Raymond was authorized to make copies of the materials "upon the
    
    request of any party to this [the Fontaine] litigation."                         Cinel
    
    alleges in his complaint that the allegedly confidential materials
    
    were       released    "under   the    pretext   of    a    subpoena   and     consent
    
    judgment."       However no facts support that conclusion.
    
           Cinel also alleges that a year later Raymond gave copies of
    
    the materials to Richard Angelico, a local television investigative
    
    reporter, and that Angelico and his employer, WDSU Television,
    
    Inc., broadcast excerpts of the materials.                    Cinel also contends
    
    that in February 1992, Raymond sold some of the materials to
    
    Geraldo Rivera and his employer, Tribune Entertainment Company,
    
    which broadcast excerpts of the material on the national syndicated
    
    television program "Now It Can Be Told."                    Cinel brought § 1983
    
    claims, together with pendent state law claims, against Harry
    
    Connick, the district attorney, Raymond Bigelow, and George Tolar
    
    in their individual and official capacities.                      He also sued Gary
    
    Raymond, David Paddison, Darryl Tschirn, Richard Angelico, WDSU
    
    Television Inc.,2 Geraldo Rivera, and Tribune Entertainment. After
    
    the    filing     of    several    motions,      the   district      court     granted
    
           2
          WDSU Television, Inc. was substituted for Pulitzer
    Broadcasting Co. as a defendant.
    
                                                3
    Appellees'   motions    to   dismiss       under   Federal   Rules   of   Civil
    
    Procedure 12(b)(6).     Cinel appeals.
    
                                    DISCUSSION
    
    I. Standard of Review
    
          We review a Rule 12(b)(6) dismissal de novo.            We must accept
    
    all well-pleaded facts as true, and we view them in the light most
    
    favorable to the plaintiff.      We may not look beyond the pleadings.
    
    A dismissal will not be affirmed if the allegations support relief
    
    on any possible theory.      McCartney v. First City Bank, 
    970 F.2d 45
    ,
    
    47 (5th Cir.1992).
    
    II. Ripeness:   Transactional Immunity and Fair Trial
    
          Although none of the parties raise the issue of ripeness on
    
    appeal, we can address lack of subject matter jurisdiction sua
    
    sponte. MCG, Inc. v. Great Western Energy Corp., 
    896 F.2d 170
     (5th
    
    Cir.1990).   Appellant alleges that the DA's office violated his
    
    state and federal constitutional rights to due process by breaching
    
    a transactional immunity agreement.          He also claims that Appellees
    
    violated his state and federal constitutional rights to a fair
    
    trial by releasing allegedly confidential materials to the public.
    
    These claims must be dismissed as premature.             For an issue to be
    
    ripe for adjudication, a plaintiff must show that he "will sustain
    
    immediate injury" and "that such injury would be redressed by the
    
    relief requested."     Duke Power Co. v. Carolina Environmental Study
    
    Group, Inc., 
    438 U.S. 59
    , 81, 
    98 S. Ct. 2620
    , 2635, 
    57 L. Ed. 2d 595
    
    
                                           4
    (1978).   Both the criminal and civil proceedings are still pending
    
    in state court.   The existence of prejudice cannot be demonstrated
    
    at this time, and any damages would be purely speculative.        See,
    
    e.g., Powers v. Coe, 
    728 F.2d 97
    , 102 (2d Cir.1984) (noting that a
    
    fair trial § 1983 claim may be "unripe" if brought prior to an
    
    impending trial);      Kaylor v. Fields, 
    661 F.2d 1177
    , 1181 (8th
    
    Cir.1981) (explaining that a claim that one was deprived of an
    
    impartial jury because of releases to the press is not ripe when no
    
    criminal trial has taken place).       Because we dismiss these claims
    
    for lack of subject matter jurisdiction, the district court's
    
    decision must be modified to reflect a dismissal without prejudice
    
    on these two issues.     See Voisin's Oyster House, Inc. v. Guidry,
    
    
    799 F.2d 183
    , 188-89 (5th Cir.1986).
    
    III. Standard for Pleading a § 1983 Case
    
         The district court applied this Circuit's heightened pleading
    
    requirement for § 1983 cases established in Elliott v. Perez, 
    751 F.2d 1472
    , 1479 (5th Cir.1985), in evaluating the sufficiency of
    
    the allegations of Appellant's complaint.          This standard was
    
    appropriate when the district court rendered its Order and Reasons
    
    on August 14, 1992.    Subsequently, in Leatherman v. Tarrant County
    
    Narcotics Intelligence and Coordination Unit, --- U.S. ----, 
    113 S. Ct. 1160
    , 
    122 L. Ed. 2d 517
     (1993), the Supreme Court overruled our
    
    precedent at least insofar as determinations on the merits under
    
    12(b)(6) are concerned.
    
    
                                       5
         Appellant contends that as a result of the Supreme Court's
    
    decision in Leatherman, the district court must be reversed.                By
    
    contrast,   some    of   the   Appellees    contend    that   the   heightened
    
    pleading requirement remains viable as to claims against them.
    
    Others    contend    that   under   the    lesser     pleading   requirements
    
    applicable following Leatherman, the complaint as to them remains
    
    insufficient.      We need not resolve the precise scope of Leatherman
    
    for, following our detailed de novo review of the complaint, we
    
    agree that under either standard the pleadings are deficient to
    
    resist Appellees' motions under Rule 12(b)(6).            There is no relief
    
    to which Appellant is entitled based upon the allegations he has
    
    made.
    
    IV. Section 1983 Claims:        Privacy and Due Process
    
             Appellant asserts claims against all Appellees under 42
    
    U.S.C. § 1983 for a violation of his rights to privacy and due
    
    process.3   To state a cause of action under § 1983, Appellant must
    
    allege that some person, acting under state or territorial law, has
    
    deprived him of a federal right.           Gomez v. Toledo, 
    446 U.S. 635
    ,
    
    640, 
    100 S. Ct. 1920
    , 1923, 
    64 L. Ed. 2d 572
     (1980);                Auster Oil &
    
    Gas, Inc. v. Stream, 
    764 F.2d 381
    , 387 (5th Cir.1985), cert.
    
    denied, 
    488 U.S. 848
    , 
    109 S. Ct. 129
    , 
    102 L. Ed. 2d 102
     (1988).
    
    
         3
          Appellant alludes for the first time in his appellate brief
    that he has a claim under the Equal Protection Clause. Appellant
    does not elaborate on this claim in his brief, and allegations in
    his complaint do not support any claim of discrimination. Thus,
    we will not consider this claim.
    
                                          6
    A. Deprived of a Federal Right.
    
              Appellant relies on Fadjo v. Coon, 
    633 F.2d 1172
     (5th
    
    Cir.1981), and James v. City of Douglas, 
    941 F.2d 1539
     (11th
    
    Cir.1991),     to   argue   that   Appellees      deprived      him   of     his
    
    constitutional right to privacy by violating an agreement to keep
    
    the identity and whereabouts of Tichenor and Fontaine confidential.
    
    In Fadjo, the plaintiff alleged that in violation of a pledge of
    
    confidentiality, a state attorney investigator revealed to private
    
    parties intimate information about the plaintiff obtained during a
    
    criminal investigation.4      633 F.2d at 1174.        The court explained
    
    that when the privacy right is invoked to protect confidentiality,
    
    there is no violation if a legitimate state interest outweighs the
    
    plaintiff's privacy interest.      Id. at 1176.        Based on the face of
    
    the complaint, the court in Fadjo concluded that the allegations
    
    were sufficient to raise a claim under § 1983 for a violation of
    
    the   plaintiff's   constitutional       right   of   privacy   and   that    no
    
    legitimate state interest capable of outweighing the plaintiff's
    
    privacy right existed.      Id. at 1175.
    
          In contrast to the allegations in Fadjo and James, Appellant's
    
    
    
          4
          Likewise, in James, the plaintiff brought a civil rights
    action against the city and police officers alleging that the
    officers violated a confidentiality agreement by allowing others
    to view a tape showing her and another engaged in sexual
    activity. 941 F.2d at 1540-51. The Eleventh Circuit held that
    the plaintiff alleged a violation of a clearly established
    constitutional right, and thus, the officers were not entitled to
    a qualified immunity. Id. at 1544.
    
                                         7
    allegations involving Tolar's release to Raymond of the names and
    
    addresses of the men depicted in the video do not implicate any
    
    constitutional privacy interests.               The release of this information
    
    alone does not involve intimate details of Appellant's life. Thus,
    
    these facts alleged by Appellant are insufficient to state a claim
    
    for a deprivation of his constitutional right of privacy.
    
             Appellant also fails to state a claim for relief against
    
    Tolar, Bigelow, and Connick in their individual and official
    
    capacities for the release of the sexually oriented materials found
    
    in Cinel's room to the private litigants, the Church and Fontaine,
    
    pursuant    to   a   subpoena.         Because    the   Church   had   viewed   the
    
    materials before giving them to the DA's office, and Fontaine had
    
    participated in making the video, the information disclosed was not
    
    private as to these parties.                In other words, Appellant cannot
    
    claim that his privacy has been invaded when allegedly private
    
    materials have been disclosed to those who already know the details
    
    of that material.              Nonetheless, assuming that Appellant had a
    
    privacy    interest       in    some   of   the   materials    requested   by   the
    
    subpoena, the government officials had a legitimate interest in
    
    complying    with     a    validly      issued    subpoena.5      Moreover,     the
    
    
         5
          Appellant argues that the materials were unlawfully
    obtained through the subpoena because the state actors violated
    Louisiana Revised Statute § 15:41. We do not have to accept as
    true Appellant's conclusory allegations. Kaiser Aluminum &
    Chemical Sales, Inc. v. Avondale Shipyards, Inc., 
    677 F.2d 1045
    (5th Cir.1982), cert. denied, 
    459 U.S. 1105
    , 
    103 S. Ct. 729
    , 
    74 L. Ed. 2d 953
     (1983). Section 15:41 applies to the disposition of
    
                                                8
    government officials drafted the consent judgment to ensure that
    
    Appellant's rights were protected by allowing the material to be
    
    copied only for the civil litigants.6
    
             Appellant fails to state a claim that the state actors denied
    
    him his procedural due process rights by not notifying him of the
    
    subpoena duces tecum.     Appellant has submitted no legal authority
    
    to this Court, and we have found none in our independent research,
    
    that creates an affirmative duty of a non-party or a governmental
    
    official in possession of documents to notify the owner of the
    
    subpoenaed documents. That Appellant may be the legal owner of the
    
    documents is irrelevant to the issuance of a valid subpoena duces
    
    tecum;     a subpoena may order a person to produce documents in his
    
    or her possession.     See La.Code Civ.Proc. art. 1354 (West 1984).
    
             Finally, Appellant does not have any claim under the Due
    
    Process Clause for damage to his reputation against any Appellees
    
    as a result of the publication of the materials.    The Supreme Court
    
    held in Paul v. Davis, 
    424 U.S. 693
    , 712, 
    96 S. Ct. 1155
    , 1165, 47
    
    
    "seized" materials. Because the materials taken from Appellant's
    room were voluntarily given to the DA's office, we conclude they
    were not "seized" by the State for the purposes of section 15:41.
    None of the facts Cinel alleges leads us to believe that the
    subpoena was issued illegally.
         6
          In deciding a 12(b)(6) motion to dismiss, a court may
    permissibly refer to matters of public record. See Louisiana ex
    rel. Guste v. United States, 
    656 F. Supp. 1310
    , 1314 n. 6
    (W.D.La.1986), aff'd, 
    832 F.2d 935
     (5th Cir.1987), cert. denied,
    
    485 U.S. 1033
    , 
    108 S. Ct. 1592
    , 
    99 L. Ed. 2d 907
     (1988).
    Accordingly, the consideration of the consent judgment does not
    convert this motion into one for summary judgment.
    
                                       
    9 L. Ed. 2d 405
     (1976), that an interest in reputation alone does not
    
    implicate a "liberty" or "property" interest sufficient to invoke
    
    due process protection.         See also Thomas v. Kippermann, 
    846 F.2d 1009
    , 1010 (5th Cir.1988).
    
    B. Under Color of Law
    
            The remainder of Appellant's § 1983 claims involve an alleged
    
    conspiracy     between    the   state   and       private     actors    to   publish
    
    allegedly    privileged    information       from       the   DA's    file   and   the
    
    sexually oriented materials released under the pretext of a civil
    
    subpoena.    A private party may be held liable under § 1983 if he or
    
    she is a "willful participant in joint activity with the State or
    
    its agents."     Adickes v. S.H. Kress & Co., 
    398 U.S. 144
    , 152, 
    90 S. Ct. 1598
    , 1606, 
    26 L. Ed. 2d 142
     (1970);                 Auster Oil, 764 F.2d at
    
    387. To support his conspiracy claims, Appellant must allege facts
    
    that suggest:      1) an agreement between the private and public
    
    defendants to commit an illegal act, Arsenaux v. Roberts, 
    726 F.2d 1022
    ,   1024   (5th   Cir.1982),    and      2)    an    actual      deprivation    of
    
    constitutional rights, Villanueva v. McInnis, 
    723 F.2d 414
    , 418
    
    (5th Cir.1984).
    
         Appellant has failed to allege facts that suggest that Tolar's
    
    release of information from the DA's file to Raymond rises to the
    
    level of a conspiracy to deprive Appellant of his constitutional
    
    rights.     Appellant contends that Tolar released the information
    
    "for the purpose of aiding and abetting [Raymond, Paddison, and
    
    
                                            10
    Tschirn] and prejudicing Cinel in the civil litigation." Complaint
    
    ¶ 44(b).    Appellant avers that Raymond, Paddison, and Tschirn used
    
    the information "to solicit and procure Fontaine and Tichenor as
    
    clients    in   violation    of   Rule    7.3   of   the    Louisiana   Rules    of
    
    Professional Conduct."       Complaint ¶ 44(c).            Perhaps, as Appellant
    
    alleges, this was improper client solicitation;                however, nothing
    
    in his complaint implies or states that these Appellees agreed to
    
    undertake a scheme to deprive Appellant of his constitutional
    
    rights.    A lapse of ethics by the Appellees is insufficient by
    
    itself to rise to the level of a conspiracy to deprive Appellant of
    
    his federal constitutional or statutory rights.                    Moreover, the
    
    subsequent      allegation   that    Angelico        and    WDSU   published    the
    
    documents cannot be linked back to a state actor.                     Nothing in
    
    Appellant's complaint intimates that Tolar's intention in releasing
    
    the information to Raymond was to make it available for future
    
    publication.
    
         Likewise, Appellant has failed to aver facts that suggest an
    
    agreement between the state actors and the private actors to
    
    publish the materials released pursuant to the subpoena.                        The
    
    publication of the material by some of the private parties, more
    
    than a year after the issuance of the subpoena, is too attenuated
    
    from the initial state action to support an agreement among the
    
    parties. See Tosh v. Buddies Supermarkets, Inc., 
    482 F.2d 329
    , 331
    
    (5th Cir.1973).     Appellant, himself, alleges in his complaint that
    
    
    
                                             11
    the material released by Raymond to private parties was in contempt
    
    of the consent judgment.             Cf. Hoai v. Vo, 
    935 F.2d 308
    , 314
    
    (D.C.Cir.1991) (concluding that when private parties abused D.C.
    
    court procedures, their actions cannot be ascribed to the state).
    
    Further, the subpoena was issued at the request of the Catholic
    
    Church, which is not a party to the present lawsuit.                     Appellant
    
    cannot now convincingly argue that Connick, Bigelow, and Tolar
    
    conspired    with    the   other    parties     to   release    the    material    in
    
    violation of Appellant's rights.                Without an agreement between
    
    private and state actors any possible joint action involving only
    
    private parties is not actionable under § 1983.
    
    V. State Law Claims
    
    A. Jurisdiction
    
             Appellant    argues       that   the    district      court   abused     its
    
    discretion by retaining jurisdiction over the pendent state claims
    
    once it dismissed the federal claims that were the basis of its
    
    jurisdiction.7      Appellant contends that the district court should
    
    have dismissed the state court claims without prejudice.
    
             The district court has discretionary power to adjudicate
    
    
    
         7
          Several of the Appellees argue that the district court
    retained jurisdiction even after it dismissed the federal claims
    because Appellant had alleged diversity as a basis for federal
    jurisdiction. When Appellant, a New York citizen, added Rivera,
    an alleged New York citizen, as a party, he destroyed complete
    diversity and, thus, his basis for diversity federal
    jurisdiction. Whalen v. Carter, 
    954 F.2d 1087
    , 1095 (5th
    Cir.1992).
    
                                              12
    pendent claims after it has dismissed the federal claims that
    
    originally invoked its jurisdiction. United Mine Workers v. Gibbs,
    
    
    383 U.S. 715
    , 725-26, 
    86 S. Ct. 1130
    , 1138-39, 
    16 L. Ed. 2d 218
    
    (1966);    Transource Int'l, Inc. v. Trinity Indus., Inc., 
    725 F.2d 274
    , 286 (5th Cir.1984).         Although at one time the Supreme Court
    
    leaned heavily toward requiring a district court to dismiss pendent
    
    claims when the underlying federal claims had been dismissed, the
    
    Court now takes the position that a district court should decide
    
    whether to retain jurisdiction based on considerations of judicial
    
    economy, convenience, fairness, and comity.             See Carnegie-Mellon
    
    Univ. v. Cohill, 
    484 U.S. 343
    , 350 n. 7, 
    108 S. Ct. 614
    , 619 n. 7,
    
    
    98 L. Ed. 2d 720
     (1988);         Rosado v. Wyman, 
    397 U.S. 397
    , 404-05, 
    90 S. Ct. 1207
    , 1213-14, 
    25 L. Ed. 2d 442
     (1970).
    
         Appellant argues that this Court has held that when federal
    
    claims have been dismissed pre-trial, pendent claims should be
    
    dismissed without prejudice because there has been no substantial
    
    use of federal judicial resources.            See La Porte Constr. Co. v.
    
    Bayshore Nat'l Bank, 
    805 F.2d 1254
     (5th Cir.1986).            In La Porte, we
    
    reversed   the    district     court's    retention   of   jurisdiction     and
    
    dismissal on the merits of pendent claims after it had dismissed
    
    the plaintiff's RICO claim on the basis of Federal Civil Procedure
    
    Rule 12(b)(6).     Id. at 1257.
    
         In Guidry v. Bank of LaPlace, 
    954 F.2d 278
     (5th Cir.1992),
    
    however,   we    held   that   the   district   court   did   not   abuse   its
    
    
                                             13
    discretion in retaining jurisdiction over some pendent claims even
    
    after it had dismissed the federal claims on the basis of Rule
    
    12(b)(6).     In Guidry, we reviewed La Porte and distinguished that
    
    case on three grounds.        First, unlike the plaintiff in La Porte,
    
    the plaintiff in Guidry did not file a prompt motion following
    
    judgment of dismissal asking the court to modify its decision and
    
    dismiss the state claims for lack of jurisdiction rather than on
    
    the merits.    Nor did the Guidry plaintiff argue in his opposition
    
    to the defendants' motions to dismiss that the district court
    
    should dismiss the pendent claims without prejudice if it were to
    
    dismiss the federal claims.        The plaintiff raised his argument for
    
    the first time on appeal.       Id. at 285.
    
         Second, the La Porte defendants, in their memorandum to the
    
    district court in support of their motion to dismiss, argued that
    
    the pendent claims should be tried by a state court.            The Guidry
    
    defendants never took the position that the state claims should be
    
    tried in the state court.          We explained that the principle of
    
    fairness suggests that once the plaintiff has the opportunity to
    
    argue sufficiency of the merits to the district court, and the
    
    court has rendered a correct decision, such plaintiff should not be
    
    allowed   a    second   try   in   state   court   over   the   defendants'
    
    objections.     Id. at 286.
    
         Finally, the state claims in La Porte, although satisfying the
    
    "common nucleus of operative fact" test necessary for supplemental
    
    
                                          14
    jurisdiction, were not as similar to the federal claims as the
    
    pendent and federal claims in Guidry.            In Guidry, the state claims
    
    were fully briefed and argued.            Therefore, we concluded that the
    
    district   court      did   not   abuse    its    discretion    in   retaining
    
    jurisdiction over the state claims.           Id.
    
          The facts concerning the 12(b)(6) dismissal in the present
    
    case resemble those in Guidry.        Although there is an indication in
    
    the   record   that    Appellant    objected      to   the   district   court's
    
    dismissal with prejudice, he did not file a formal motion nor did
    
    he argue in his opposition to Appellees' motions to dismiss that
    
    the district court should dismiss the pendent claims without
    
    prejudice if it were to dismiss the federal claims. Moreover, none
    
    of the Appellees argued to the district court that a state court
    
    should decide the state claims.            All parties extensively briefed
    
    the state claims to the district court.             Finally, there is a close
    
    relationship between the issues and facts underlying the state and
    
    federal claims.        Thus, the principles of judicial economy and
    
    fairness weigh heavily in favor of the district court's disposal of
    
    the pendent claims on the merits.
    
    B. State Constitutional Claims
    
          Appellant's state constitutional claims mirror his federal
    
    claims under § 1983.        Louisiana courts have generally held that
    
    state due process and privacy claims must, like federal claims,
    
    involve state action.         See, e.g., Delta Bank & Trust Co. v.
    
    
                                          15
    Lassiter, 
    383 So. 2d 330
    , 334 (La.1980);          Hatfield v. Bush, 
    540 So. 2d 1178
    , 1182 (La.App. 1st Cir.1989).           Thus, for the same
    
    reasons discussed above, we affirm dismissal of the state law
    
    claims.
    
    C. Negligence Claims
    
         Appellant's only discussion of his negligence claims against
    
    Paddison and Tschirn is in his reply brief.       An appellant abandons
    
    all issues not raised and argued in its initial brief on appeal.
    
    United Paperworkers Int'l Union v. Champion Int'l Corp., 
    908 F.2d 1252
    , 1255 (5th Cir.1990);     Piney Woods Country Life Sch. v. Shell
    
    Oil Co., 
    905 F.2d 840
    , 854 (5th Cir.1990);             Nissho-Iwai Co. v.
    
    Occidental Crude Sales, Inc., 
    729 F.2d 1530
    , 1539 n. 14 (5th
    
    Cir.1984).
    
          Appellant does not brief the negligence claims against
    
    Connick. A party who inadequately briefs an issue is considered to
    
    have abandoned the claim.      Villanueva v. CNA Ins. Cos., 
    868 F.2d 684
    , 687 n. 5 (5th Cir.1989) (civil).
    
    D. Invasion of Privacy
    
         Appellant alleges that Raymond, Paddison, Tschirn, Angelico,
    
    WDSU, Rivera   and   Tribune   invaded   his   right    of   privacy   under
    
    Louisiana Civil Code article 2315. Under Louisiana law, one can be
    
    held liable for invasion of privacy for making an "unreasonable
    
    disclosure of embarrassing private facts."             Jaubert v. Crowley
    
    Post-Signal, Inc., 
    375 So. 2d 1386
    , 1388 (La.1979).           To recover for
    
    
                                       16
    this tort, a plaintiff must prove that 1) the defendant publicized
    
    information      concerning    the   plaintiff's     private   life,     2)   the
    
    publicized matter would be highly offensive to the reasonable
    
    person, and 3) the information is not of legitimate public concern.
    
    Roshto v. Hebert, 
    439 So. 2d 428
    , 430 (La.1983).             Whether a matter
    
    is of public concern is a question of law for the court.                      See
    
    Rosanova    v.    Playboy     Enters.,      Inc.,   
    411 F. Supp. 440
    ,   444
    
    (S.D.Ga.1976), aff'd, 
    580 F.2d 859
     (5th Cir.1978).
    
         The district court held that the materials were a matter of
    
    legitimate public concern. It explained that the materials related
    
    to Appellant's guilt or innocence of criminal conduct.8                Also, the
    
    material implicated the public's concern with the performance of
    
    its elected DA, especially because the DA's decision cannot be
    
    reviewed by a court.          See State v. Perez, 
    464 So. 2d 737
    , 744
    
    (La.1985) (explaining that the district attorney is given absolute
    
    discretion in the institution of criminal charges).               Finally, the
    
    materials   concerned       Appellant's     activities    while   an    ordained
    
    Catholic priest and the Church's response to those activities.
    
         At oral argument, Appellant conceded the newsworthiness of the
    
    details surrounding his story.           Appellant contends, however, that
    
    the broadcast portions of the homemade videotape and allegedly
    
    
    
         8
          Homosexual sodomy is      considered a crime against nature in
    Louisiana. La.Rev.Stat. §       14:89 (West 1989). Additionally,
    Louisiana makes it a crime      to intentionally possess child
    pornography. La.Rev.Stat.       § 14:81.1(A)(3) (West Supp.1993).
    
                                           17
    confidential deposition added nothing to this topic and were what
    
    constituted the invasion of his privacy.                 We disagree.        The
    
    materials broadcast by the Appellees were substantially related to
    
    Appellant's story.     Perhaps the use of the materials reflected the
    
    media's insensitivity, and no doubt Appellant was embarrassed, but
    
    we are not prepared to make editorial decisions for the media
    
    regarding    information    directly    related    to    matters     of   public
    
    concern.9     See, e.g., Ross v. Midwest Communications, Inc., 
    870 F.2d 271
    , 275 (5th Cir.) ("judges, acting with the benefit of
    
    hindsight,    must    resist    the   temptation    to      edit    journalists
    
    aggressively"), cert. denied, 
    493 U.S. 935
    , 
    110 S. Ct. 326
    , 
    107 L. Ed. 2d 316
     (1989);        Neff v. Time, Inc., 
    406 F. Supp. 858
    , 860
    
    (W.D.Pa.1976) (noting that "the courts are not concerned with
    
    establishing canons of good taste for the press or the public")
    
    (internal quotations omitted); Cape Publications, Inc. v. Bridges,
    
    
    423 So. 2d 426
    , 427-28 (Fla.Dist.Ct.App.1982) (concluding that when
    
    plaintiff's    nude   picture   was    relevant    to   a   story    of   public
    
    interest, there is no invasion of privacy, even though picture may
    
    be embarrassing or distressful to the plaintiff), cert. denied, 
    464 U.S. 893
    , 
    104 S. Ct. 239
    , 
    78 L. Ed. 2d 229
     (1983).
    
    VI. Amendment of Pleadings
    
    
    
         9
          Because we find the broadcast of the materials a legitimate
    matter of public concern, we need not address whether the media
    is entitled to immunity from liability under the First Amendment
    for the public disclosure of lawfully obtained truthful facts.
    
                                          18
          Appellant argues that the district court erred in dismissing
    
    his complaint without leave to amend.             Although leave to amend
    
    should be freely given, this is not a case in which the district
    
    court denied Appellant's request to amend.          See La Porte, 805 F.2d
    
    at 1256.    Appellant did not ask the district court for leave to
    
    amend;     his brief to this Court is his first such request.
    
    Moreover, Appellant has failed to indicate specifically how he
    
    would amend his complaint to overcome the 12(b)(6) dismissal.
    
    Therefore, we have no basis on which to find an abuse of discretion
    
    by the district court.        See id. at 1256-57;        accord Romani v.
    
    Shearson   Lehman   Hutton,   
    929 F.2d 875
    ,    880-81   (1st   Cir.1991)
    
    (concluding that failure to request to amend arguably precludes the
    
    court of appeals from reviewing the issue);            Sinay v. Lamson &
    
    Sessions Co., 
    948 F.2d 1037
     (6th Cir.1991) (holding a district
    
    court does not abuse its discretion in failing to grant a party
    
    leave to amend when such relief is not sought).
    
                                   CONCLUSION
    
         We hereby modify the district court's judgment insofar as it
    
    dismisses with prejudice Appellant's claims for due process on the
    
    issue of transactional immunity and for fair trial under the state
    
    and federal constitutions to dismiss those claims for lack of
    
    subject matter jurisdiction.        The district court's judgment is
    
    affirmed as modified.
    
         MODIFIED IN PART and AFFIRMED.
    
    
                                        19
    20
    

Document Info

DocketNumber: 92-03781

Filed Date: 7/26/1996

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (45)

Mine Workers v. Gibbs , 383 U.S. 715 ( 1966 )

Rosado v. Wyman , 397 U.S. 397 ( 1970 )

Adickes v. SH Kress & Co. , 398 U.S. 144 ( 1970 )

Paul v. Davis , 424 U.S. 693 ( 1976 )

Duke Power Co. v. Carolina Environmental Study Group, Inc. , 438 U.S. 59 ( 1978 )

Gomez v. Toledo , 446 U.S. 635 ( 1980 )

Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343 ( 1988 )

Leatherman v. Tarrant County Narcotics Intelligence and ... , 507 U.S. 163 ( 1993 )

Charles A. Tosh v. Buddies Supermarkets, Inc. , 482 F.2d 329 ( 1973 )

Louis F. Rosanova v. Playboy Enterprises, Inc. , 580 F.2d 859 ( 1978 )

donald-fadjo-v-michael-coon-individually-and-as-investigator-for-the , 633 F.2d 1172 ( 1981 )

Walter L. Kaylor, Freda Moore, and Juanita Rowe v. Ron ... , 661 F.2d 1177 ( 1981 )

Kaiser Aluminum & Chemical Sales, Inc. v. Avondale ... , 677 F.2d 1045 ( 1982 )

Noe Villanueva v. Oscar B. McInnis , 723 F.2d 414 ( 1984 )

Transource International, Inc. v. Trinity Industries, Inc., ... , 725 F.2d 274 ( 1984 )

Richard Arsenaux v. Henry J. Roberts, Jr. , 726 F.2d 1022 ( 1982 )

Arthur B. Powers v. Glenn E. Coe and Austin J. McGuigan , 728 F.2d 97 ( 1984 )

Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc. , 729 F.2d 1530 ( 1984 )

James Elliott and Joseph Defley v. Leander H. Perez, Jr., ... , 751 F.2d 1472 ( 1985 )

Auster Oil & Gas, Inc. v. Matilda Gray Stream , 764 F.2d 381 ( 1985 )

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