Lee v. Morial, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-30875
Summary Calendar
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GEORGE LEE, III,
INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED,
Plaintiffs-Appellants,
VERSUS
MARC MORIAL,
MAYOR OF THE CITY OF NEW ORLEANS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY;
CITY OF NEW ORLEANS;
RICHARD PENNINGTON,
CHIEF OF POLICE FOR THE CITY OF NEW ORLEANS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(99-CV-2952)
_________________________
April 26, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
The New Orleans Police Department
(“NOPD”) suspended George Lee, III, with-
* Pursuant to 5TH CIR. R. 47.5, the court has
(continued...)
*(...continued)
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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2
out pay because prosecutors had charged him
with rape and armed robbery. The NOPD
announced the suspension and their suspicions
at a press conference. After four trials, Louisi-
ana convicted Lee of several counts of forcible
rape and kidnaping. Lee sued, alleging that
NOPD’s suspension and press conference vio-
lated the federal and Louisiana constitutions
and Louisiana statutes. The district court
found that Lee failed to state a claim for vio-
lations of his federal rights under the Fourth,
Sixth, and Fourteenth Amendments and dis-
missed the state law claims without prejudice
because it declined to exercise supplemental
jurisdiction. Finding no error, we affirm.
I.
In August 1999, NOPD officers arrested
Lee for aggravated rape, aggravated kidnap-
ing, and armed robbery. On the same day,
NOPD suspended Lee for 120 days for violat-
ing an internal rule requiring officers to adhere
to the law. The chief of the NOPD, Richard
Pennington, gave a press conference describ-
ing Lee as a rapist and announcing his emer-
gency suspension. Lee spent 120 days in jail
before an Orleans Parish judge ruled that the
officers lacked probable cause for the arrest.
The state then dropped the charges.1
In November 1999, a grand jury indicted
Lee on two counts of sexual battery, two
counts of extortion, and three counts of sec-
ond degree kidnaping. Lee pleaded not guilty,
and a jury found him not guilty of extortion
but hung on one count of sexual battery and
two counts of kidnaping. The court reset the
case for trial, but the state dropped the
charges.2
In February 2000, the state launched a sec-
ond case, reinstating the remaining charges
and adding more. The state charged Lee with
six counts of forcible rape and four counts of
second degree kidnaping. Lee pleaded not
guilty. The case went to trial in April 2000,
but the court declared a mistrial, finding that
the state had concealed Brady material and or-
dering the prosecution to produce the evidence
to the defense. The state then again dropped
the charges in the second case.
In May 2000, the state brought a third case,
reinstating the charges and adding new counts.
The state charged Lee with seven counts of
forcible rape and five counts of second degree
kidnaping. Lee pleaded not guilty. The trial
began in October 2000 but lasted only seven
days; the court declared a mistrial because of
prosecutorial misconduct because the
prosecutor had planted evidence on the
defendant’s clothing sometime between the
second and third trials.3 In February 2001,
Lee faced trial a fourth time; the jury convicted
him on all counts and sentenced him to thirty
1 This account of the August 1999 arrest and
suspension reflects the most favorable reading of
Lee’s complaint, Schultea reply, response to the
motion to dismiss, and appellant’s brief. None of
these documents spells out the initial arrest and
suspension fully. The city of New Orleans is also
opaque about the initial arrest.
2 We have omitted all of the appeals to the
intermediate courts and the Louisiana Supreme
Court; we also omit the contempt proceedings
spawned by prosecutorial misconduct. None of
these events is directly relevant to the appeal.
3 The Louisiana Court of Appeal’s decisions
provide a useful summary of the criminal case’s
procedural history. See State v. Lee, 767 So. 2d
97, 98 (La. App. 4th Cir. 2000); State v. Lee , 778
So. 2d 656, 657-59 (La. App. 4th Cir. 2001); State
v. Lee, 787 So. 2d 1020, 1024-27 (La. App. 4th
Cir. 2001).

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3
years at hard labor.
II.
In September 1999, Lee sued under 42
U.S.C. §§ 1981 and 1983 for alleged
violations of his constitutional rights. The
complaint named as defendants Mayor Marc
Morial, NOPD Chief Richard Pennington, and
the city of New Orleans. Lee sued Morial and
Pennington in their individual and official
capacities.
The complaint alleged several constitutional
violations stemming from the suspension and
its publication. First, Lee alleged that the
defendants had violated the Fourteenth
Amendment’s Due Process Clause by failing to
give him notice of the suspension, denying him
a presuspension name-clearing hearing, and
publicizing the rape charges at a press
conference. Second, Lee claimed that pub-
licizing the rape violated his Fourth Amend-
ment right to privacy. Third, he averred that
the NOPD violated the Fourteenth
Amendment’s Equal Protection Clause by
adopting a disciplinary policy that
systematically disadvantaged black officers.
Finally, Lee claimed that the publication
compromised his Sixth Amendment right to an
impartial jury in his subsequent criminal trial.
In December 1999, the defendants filed an
answer and first asserted that the complaint
failed to state a claim on which relief could be
granted. In January 2000, the court held a
pretrial conference; the parties agreed not to
file amendments to pleadings any later than
thirty days after the conference; but the district
court reserved the right to extend any of the
deadlines by granting a motion for a
continuance.
Defendants moved to dismiss under FED. R.
CIV. P. 12(b)(6). The court dismissed the city
and Morial and Pennington in their official
capacity because Monell v. City of New York
Dep’t of Social Servs., 436 U.S. 658 (1978),
requires the plaintiff to point to a municipal
custom or policy that inflicted the injury. Lee
failed to do so. The court’s memorandum
described a willingness to reinstate the claims
if Lee amended the complaint appropriately.
The court then turned to the claims against
Morial and Pennington in their individual ca-
pacities and found that the complaint failed to
set forth facts with sufficient particularity to
create individual liability. The court dismissed
the Fourth and Sixth Amendment claims, then
ordered Lee to file a Schultea reply to the
answer supplying specific facts that supported
his other claims. First, Lee had an obligation
to identify particular state law or contractual
bases for his property right to avoid
suspension or retain his position. Second, the
court insisted that Lee plead whether he
requested a name-clearing hearing. Third, the
court ordered Lee to explain in greater detail
the facts supporting his Equal Protection
claim.
On the same day as the district court’s or-
der, Lee filed a pleading labeled “Plaintiff’s
Reply to Defendant’s Answer and Affirmative
Defenses.” The court ruled that Lee’s reply
failed to satisfy the requirements of its earlier
order. The reply and proposed amendments
sought to add multiple new defendants and
substantially to alter the original complaint.
The court held that Lee was not in compliance
with the order and rejected the reply, then
instructed Lee to “review [the] June 1, 2000
Memorandum and Order more carefully and
attempt to comply with the precise directions
given.” The court did not specify a due date
for the next Schultea reply. Lee filed a notice

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4
of appeal from the order dismissing his Fourth
and Sixth Amendment claims.
Lee filed a second Schultea reply and a mo-
tion to amend the original complaint. The
court ordered the case closed because of the
pending criminal proceedings in the Parish of
Orleans and pending appeal to this court. The
district court denied Lee’s motion to amend
the complaint because it had closed the case,
but specified that its denial “is without
prejudice to the right of the plaintiff to re-urge
the motion if the case is restored to the trial
docket.”
A panel of this court granted Lee’s
unopposed motion to dismiss the appeal
without prejudice. Then, after Lee’s
conviction, defendants filed a motion to
dismiss the remainder of the claims under FED.
R. CIV. P. 12(b)(6). Lee filed a response to
the motion to dismiss. The district court filed
a memorandum concluding that Lee had never
effectively amended his complaint, considering
his Schultea reply, and ruling that Lee had
failed to state a claim for any federal
constitutional violation.
III.
Lee appeals the denials of his motions to
amend the complaint. After a responsive
pleading has been filed, the court should grant
“leave” to amend “freely” “when justice so re-
quires.” Fed. R. CIV. P. 15(a). We review for
abuse of discretion the refusal to allow amend-
ment.4
Lee filed his first motion to amend before
the district court had ruled on any of the dis-
positive motions. The court rejected the mo-
tion because it did not remedy any of the flaws
identified in the court’s memorandum. If an
amended complaint cannot survive a motion to
dismiss, a district court has the discretion to
refuse the amendment.5 The district court
instead instructed Lee to study the court’s
memorandum and submit amendments that
would cure the complaint’s deficiencies.
Lee then filed his second Schultea reply and
a motion to amend. The court denied the
motion because Lee had already filed an appeal
with the Fifth Circuit. District courts do not
abuse their discretion by denying a motion to
amend after the plaintiff has appealed the
judgment. A proper notice of appeal divests
the district court of jurisdiction over all
matters relating to the appeal.6 Although this
court may have lacked jurisdiction, and the
district court may have retained the power to
amend, the district court chose not to allow
amendment.
4 Lewis v. Fresne, 252 F.3d 352, 356 (5th Cir.
2001); Carbalan v. Vaughn, 760 F.2d 662, 664-65
(5th Cir. 1985).
5 Pan-Islamic Trade Corp. v. Exxon Corp., 632
F.2d 539, 546 (5th Cir. 1980) (“Clearly, if a com-
plaint as amended is subject to dismissal, leave to
amend need not be given.”); DeLoach v. Woodley,
405 F.2d 496, 496-97 (5th Cir. 1969) (finding
court need not amend when complaint fails to cure
original, fatal defects).
6 Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (per curiam) (“The filing
of a notice of appeal is an event of jurisdictional
significanceSSit confers jurisdiction on the court of
appeals and divests the district court of its control
over those aspects of the case involved in the
appeal.”) (citation omitted); United States v.
Hitchmon, 602 F.2d 689, 694 (5th Cir. 1979) (en
banc) (finding that a properly filed appeal stripped
the district court of jurisdiction over matters re-
lating to the appeal).

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5
The proposed amendment would have add-
ed more parties and substantially altered the
underlying case while on appeal. The district
court knew that if this court found jurisdiction,
the amendment would have no effect.7 Rather
than making a guess about appellate
jurisdiction, the district court displayed
sensitivity to the well-established principle that
an appellate court normally has the power to
determine its own jurisdiction.8 This
awareness marks sound judicial administration,
not an abuse of discretion.9
IV.
A.
“We review the district court’s ruling under
[rule] 12(b)(6) de novo.” Shipp v. McMahon,
234 F.3d 907, 911 (5th Cir. 2000), cert.
denied, 532 U.S. 1052 (2001). The court
must liberally construe the complaint in favor
of the plaintiff and assume the truth of all
pleaded facts. Brown v. Nationsbank Corp.,
188 F.3d 579, 586 (5th Cir. 1999). “The court
may dismiss a claim when it is clear that the
plaintiff can prove no set of facts in support of
his claim that would entitle him to relief.”
Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999).
FED. R. CIV. P. 8(a)’s generic pleading
requirements govern suits against
municipalities and individual defendants in
their official capacity. Anderson v. Pasadena
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
defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests.”
Leatherman v. Terrant County Narcotics
Intelligence & Coordination Unit, 507 U.S.
163, 168 (1993) (citation omitted).
Lee argues that the district court erred by
applying a “heightened pleading standard” to
his claims against Morial and Pennington as
individuals. In Leatherman, the Court held
that federal courts could not apply a
“heightened pleading standard” immunity to
states, municipalities, and government
employees sued in their official capacity. Id. at
165, 166-67. Nothing in Leatherman spoke to
whether qualified immunity requires § 1983
plaintiffs to satisfy a heightened pleading
standard for claims against government
officials in their individual capacity.
We recognized the open question in Schul-
tea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en
banc), and offered a solution, recognizing that
even rule 8 requires that plaintiffs plead “more
7 Dayton Indep. Sch. Dist. v. U.S. Mineral
Prods. Co., 906 F.2d 1059, 1063-64 (5th Cir.
1990) (declaring amended complaint ineffective
because district court had significantly changed the
status of the case before the court of appeals).
8 As the Eight Circuit explained in a similar
case:
[A]ppellate jurisdiction is primarily an issue
for the appellate court. Therefore, if an
appeal is taken from an interlocutory order
and the issue of appealability is in doubt, the
district court should stay its hand until we
resolve the issue of our jurisdiction.
State ex. rel. Nixon v. Couer D’Alene Tribe, 164
F.3d 1102, 1106-07 (8th Cir. 1999).
9 Lee also fails to point out any harm caused by
the refusal to amend. In its June 2001,
memorandum, the court considered both the
original complaint and the rule 7 reply’s
allegations. Lee does not explain why refusing to
permit formal amendment affected the facts
considered by the district court when resolving the
rule 12(b)(6) motion.

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6
than conclusions.” Id. at 1431, 1434. If the
complaint alleges only conclusions, the court
should order the plaintiff to file a reply to the
answer under FED. R. CIV. P. 7(a). Id. at
1433.10 The court then considers whether the
complaint and rule 7 reply “support[ ]” the
claim “with sufficient precision and factual
specificity to raise a genuine issue as to the
illegality of defendant’s conduct at the time of
the alleged acts.” Id. at 1434.11 The district
court correctly applied the heightened pleading
requirement required by Schultea and per-
mitted by rule 7.12
B.
Holding a municipality or a municipal of-
ficial acting in his official capacity liable under
§ 1983 requires a finding of a municipal cus-
tom or policy. Kentucky v. Graham, 473 U.S.
159, 165-66 (1985); Monell, 436 U.S. at 694.
The official policy or custom must inflict the
plaintiff’s injury. Monell, 436 U.S. at 694.
To show an unconstitutional policy or cus-
tom, the plaintiff must (1) identify the policy or
custom, (2) connect the policy or custom with
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
(5th Cir. 1984) (en banc). We define an
official policy as “a policy statement, or-
dinance, regulation, or decision that is
officially adopt ed and promulgated by the
municipality’s lawmaking officers or by an
official to whom the lawmakers have delegated
policymaking authority.” Johnson v. Moore,
958 F.2d 92, 94 (5th Cir. 1992). Although
even a single decision by a final policymaker
can establish official policy, Pembaur v.
Cincinnati, 475 U.S. 469, 483-84 (1986), only
the decisions of officials possessing “final
policy making authority” represent official
policy. Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 737 (1989) (emphasis added).
The district court dismissed all of Lee’s
claims against the city and Morial and
Pennington in their official capacities. The
complaint identified the mayor as the person
10 Rule 8(a)(2) does not apply to rule 7 replies,
because rule 8(a)(2) applies only to “original
claim[s], counterclaim[s], cross-claim[s], or third-
party claim[s].” Id.
11 Several panels have applied the Schultea
standard. E.g., Shipp, 234 F.3d at 912 (“[I]f the
pleadings on their face show an unreasonable vio-
lation of a clearly establish[ed] constitutional right,
the defense of qualified immunity will not sustain
a motion to dismiss under Rule 12(b)(6).”); Reyes
v. Sazan, 168 F.3d 158, 161-62 (5th Cir. 1999)
(reversing district court for failure to order
Schultea reply when initial complaint only alleged
“bare conclusion[s]”).
12 Our precedent actually supports applying the
pre-Leatherman pleading standard to claims
against individual officers. Anderson, 184 F.3d
439 (“This court thereafter declined to abandon the
requirement, articulated in Elliott v. Perez, 751
F.2d 1472 (5th Cir. 1985), that plaintiffs suing
governmental officials in their individual capacities
must allege specific conduct giving rise to a
constitutional violation.”) (citation omitted); Mea-
dowbriar Home for Children, Inc. v. G.B. Gunn,
81 F.3d 521, 531 (5th Cir. 1996) (finding that
Elliot’s pleading requirement for individual
defendants survived both Leatherman and Schul-
tea). The continued validity of Elliott’s heightened
(continued...)
12(...continued)
standard for individual defendants renders the
district court’s application of Schultea’s pleading
standards harmless. See Brandley v. Keeshan, 64
F.3d 196, 200 (5th Cir. 1995). In this case,
however, we apply Schultea, because the district
court ordered a rule 7 reply.

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7
responsible for the NOPD and Pennington as
the person who held a press conference
labeling Lee a rapist. The district court found
this insufficient to allege an unconstitutional
official policy, to identify the final policymaker
under state or local law, or to establish the
city’s liability for that person’s actions. Lee
does not make a single argument or identify a
single fact on appeal that would establish lia-
bility for the city or Morial and Pennington in
their official capacity; we therefore assume
that he appeals only the dismissal of his claims
against Morial and Pennington in their
individual capacity.
C.
Officials who perform discretionary duties
can assert the defense of qualified immunity
when sued in their individual capacity. Harlow
v. Fitzgerald, 457 U.S. 800, 815, 818 (1982).
To overcome qualified immunity, the plaintiff
must demonstrate (1) the violation of a
constitutional right clearly established at the
time of the incident and (2) an objectively rea-
sonable official would consider the conduct
unlawful. Hare v. City of Corinth, 135 F.3d
320, 325 (5th Cir. 1998). Because Lee’s
pleadings do not allege violations of
constitutional rights, we need not address the
question of objective reasonableness.
V.
Lee argues that his pleadings state a claim
for violating his right to due process under the
Fourteenth Amendment. He argues that, con-
trary to the district court’s finding, he
established his status as a permanent civil
servant and that Morial and Pennington did
not afford him adequate pre-suspension
process. Lee also contends that Pennington’s
press conference compromised his reputation
as a peace officer without due process. The
Supreme Court has squarely rejected his first
theory of recovery, and Lee’s pleadings fail to
allege an essential element of the second.
A.
To state a claim for deprivation of due pro-
cess, Lee must plead and prove (1) the
deprivation of a constitutionally protected
interest and (2) constitutionally inadequate
procedures. Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538, 541 (1985).
To resolve the scope of Lee’s constitutionally
protected property interests, we must look to
state law. Garcia v. Reeves County, Texas, 32
F.3d 200, 203 (5th Cir. 1994).
State law determines whether a public em-
ployee has a statutory right to continue work
and receive pay. Most states give workers a
statutory right to continued employment but
not a particular job or position. Suspending
the public employee without pay can raise
more serious constitutional questions than sus-
pending the public employee with pay. Davis
v. Mann, 882 F.2d 967, 973 (1989). Some
state laws also create a property interest in the
non-pecuniary benefits of a particular
occupation, such as reputation or status.
Kinsey v. Salado Indep. Sch. Dist., 950 F.2d
988, 997 (1992) (en banc) (finding that state
law did not establish such a property right).
In his appellant’s brief, complaint, and
rule 7 reply, Lee alleges various and confusing
sources of his right to continued employment.
The district court found that his descriptions of
state law were only conclusional and that he
had not alleged a property right to avoid
suspension. We find it unnecessary to reach
the question of his right to avoid suspension
under Louisiana state law because the
defendants did not have an obligation to
provide a pre-suspension hearing.

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8
When determining the adequacy of process,
we must balance three factors: (1) the private
interest affected; (2) the risk of erroneous de-
privation from current and proposed
procedures; and (3) the government’s interest.
Matthews v. Eldridge, 424 U.S. 319, 335
(1976). The Supreme Court twice has held
that public employers may immediately
suspend employees without pay who have
been charged with felonies.
In FDIC v. Mallen, 486 U.S. 230, 232
(1988), regulations permitted the FDIC to sus-
pend indicted officials. The parties and the
majority agreed that a high-ranking bank of-
ficial criminally indicted for making misleading
statements to the FDIC did not have a con-
stitutional right to a presuspension hearing.
Id. 240-41. The state’s interest in preserving
public confidence in the bank outweighs the
individual interest in receiving pay for a few
months or weeks. Id. The grand jury’s ex
parte finding of probable cause provides a suf-
ficient basis for both the arrest and the
suspension. Id. The Court described the more
difficult and relevant constitutional question as
how long the suspended employee must wait
before a post-suspension hearing. Id. at 242,
246-47. We need not linger on this question,
however, because Lee has not asserted in any
of his pleadings or briefs that the NOPD vio-
lated his due process rights by denying a post-
suspension or pretermination hearing. He ar-
gues only the illegality of his suspension.
In Gilbert v. Homar, 520 U.S. 924, 926-27
(1997), a university suspended a campus po-
lice officer without pay immediately after his
arrest in a drug raid. The police filed a
criminal complaint alleging felony violations,
which they later dismissed, but the university
still demoted the officer to groundskeeper be-
fore ending the suspension. Id. at 927. The
Court reasoned that the employee has only a
slight property interest in avoiding a temporary
suspension and post-suspension process could
satisfy that need. Id. at 932. The Court also
explained that “the State has a significant
interest in immediately suspending, when fel-
ony charges are filed against them, employees
who occupy positions of great public trust and
high public visibility, such as police officers.”
Id. The Court held that an arrest and formal
charge provides the same ex parte finding of
probable cause created by an indictment. Id.
at 934. The Court emphasized that the public
employer’ real constitutional duty was to pro-
vide prompt and adequate post-suspension
procedures. Id. at 934-35.13
Lee’s pleadings seek relief only for the un-
lawful suspension, and his arrest and formal
charge were sufficient to justify the
suspension. He does not argue that he did not
have access to post-suspension procedures.
Nor does he argue that the NOPD’s pre-
termination procedures failed to pass
constitutional muster. The Supreme Court has
held that when the state brings felony charges
against the employee the public employer may
promptly suspend the employee without a
hearing.
B.
Lee also argues that the court erred by dis-
13 Public employers need not provide a full-
fledged presuspension hearing. Caine v. M.D.
Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en
banc) (finding informal appearances before
committee satisfied due process requirements
before suspension so long as hospital later provided
an adequate postsuspension hearing); Darlak v.
Bobear, 814 F.2d 1055, 1064 (5th Cir. 1987)
(finding that an informal investigation and
opportunity to deny allegations were adequate
process prior to suspension).

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9
missing his due process claim premised on
Pennington’s press conference and reputation-
al injury. Lee, however, has never alleged that
he requested a name-clearing hearing, which is
a necessary element of the constitutional tort.
The Fourteenth Amendment recognizes an
individual’s liberty interest in his “good name,
reputation, honor, or integrity.” Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971). A
public employer implicates this protected lib-
erty interest by making public defamatory
statements about an employee when refusing
to hire, suspending, firing, or making other
employment decisions. Owen v. City of In-
dependence, Mo., 445 U.S. 622, 633 n.13
(1980); Dennis v. S & S Consol. Rural High
Sch. Dist., 577 F.2d 338, 341-42 (5th Cir.
1978). To prevail on his § 1983 claim based
on the defendants’ refusal to hold a name-
clearing hearing, Lee must demonstrate:
(1) that the NOPD took an adverse
employment action; (2) that Pennington made
stigmatizing charges against him in connection
with the action; (3) that the charges were false;
(4) that the defendants did not provide notice
or an opportunity to be heard prior to the
action; (5) that the defendants made the charg-
es public; (6) that he requested a hearing to
clear his name; and (7) that the defendants
refused the request. Hughes v. City of
Garland, 204 F.3d 223, 226 (5th Cir. 2000)
(citations omitted).
Lee has never pleaded facts showing that he
requested and was denied a hearing to clear his
name. This court repeatedly has emphasized
that the plaintiff must request such a hearing.14
Lee argued in the district court, although he
does not repeat the argument in his appellant’s
brief, that incarceration barred him from
requesting the hearing. We previously have
held that a public employee’s hospitalization
did not excuse the employee from requesting
a name-clearing hearing. Galloway v.
Louisiana, 817 F.2d 1154, 1158 (5th Cir.
1987).
Like the plaintiff in Galloway, Lee does not
explain why he could not request the hearing
from jail by correspondence or through his at-
torney. Lee’s failure to plead a request for a
name-clearing hearing and a denial is fatal to
this claim.
VI.
Lee argues that the district court erred by
dismissing his claims under the Fourth Amend-
ment. Lee, however, has never identified a
coherent legal theory or constitutional tort that
would entitle him to recover for invasion of his
Fourth Amendment right to privacy.
The Fourth Amendment does not create a
general right protecting public employees from
defamation. Paul v. Davis, 424 U.S. 693, 712
(1976); Kerr v. Lyford, 171 F.3d 330, 339 (5th
Cir. 1999). The Fourth Amendment
establishes a tort for malicious persecution, but
the plaintiff must allege that the criminal action
terminated in his favor. Kerr, 171 F.3d at 340.
Lee admits that a jury ultimately convicted him
of rape.
Finally, Lee argues that he has stated a
claim for “false light invasion of privacy,” but
14 Rosenstein v. City of Dallas, 876 F.2d 392,
396 & n.7 (5th Cir.), vacated in part, 884 F.2d
174 (5th Cir. 1989), reinstated in relevant part,
(continued...)
14(...continued)
901 F.2d 61 (5th Cir. 1990); Compos v. Guillot,
743 F.2d 1123, 1126 (5th Cir. 1984); In re Sel-
craig, 705 F.2d 789, 796 (5th Cir. 1983).

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10
that tort arises under Louisiana law, not the
federal constitution. Doe v. Doe, 941 F.2d
280, 288 (5th Cir. 1991). The district court
properly dismissed the Fourth Amendment
claims, because Lee has never articulated a
coherent legal theory or the necessary facts.
VII.
Lee asserted an equal protection violation
in the district court; if he raises the argument
on appeal, he does so only in passing. Regard-
less, the district court properly dismissed the
claim for the reasons set forth in its June 2000
and June 2001 memoranda.
VIII.
Lee alleges that Pennington’s press
conference deprived him of a fair criminal trial
and violated his Sixth Amendment right to an
impartial jury. The district court refused to
consider this claim because the state criminal
trial was still pending, and the 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
conviction or sentence has been reversed on
direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized
to make such a determination, or called into
question by a federal court’s issuance of a writ
of habeas corpus.” Id. at 486-87. If the
conviction remains in place, the plaintiff’s
proper remedy lies in direct appeal to state
courts or filing for a writ of habeas corpus
from state or federal courts. Id.
IX.
Lee reasserts state law claims on appeal on-
ly indirectly. For example, he repeatedly refers
to the “false light invasion of privacy claim”
cognizable under Louisiana law. The district
court did not pass on those claims. Instead,
after dismissing the federal claims, it refused to
exercise supplemental jurisdiction. Lee has
not advanced a reason to classify that decision
as an abuse of discretion. We cannot think of
a relevant factor that would counsel in favor of
retaining jurisdiction, so we affirm.15 Because
the district court dismissed the claims without
prejudice, Lee still has the option of re-filing
them in state court.
AFFIRMED.
15 28 U.S.C. § 1367(c) (“The district courts
may decline to exercise supplemental jurisdiction
over a claim . . . if . . . the district court has
dismissed all claims over which it has original
jurisdiction.”); Cabrol v. Town of Youngsville, 106
F.3d 101, 110 (5th Cir. 1997) (dismissing
appellant’s state law claims because he failed to
provide a persuasive reason why the court should
have retained jurisdiction).

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