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