concurring and dissenting:
I join both Judge Higginbotham and Judge Barksdale in disclaiming the constitutional tort of malicious prosecution. I join Judge Barksdale and Judge Jones in rejecting a remand on the state claim. I join Judge Barksdale in rejecting the due process claim. I would remand for retrial on whatever remains of the Fourth Amendment claims.
EDITH H. JONES, Circuit Judge, with whom SMITH, CLEMENT and PRADO, Circuit Judges, join, concurring and dissenting:
Like Judge Barksdale, I applaud the court’s decision to jettison its mischievous and unfounded theory constitutionalizing the tort of malicious prosecution. This result is overdue. See Brummett v. Cambie, 946 F.2d 1178 (5th Cir.1991); Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir.1999) (Jones, J., concurring); Gordy v. Burns, 294 F.3d 722 (5th Cir.2002). While I largely agree with Judge Higginbotham’s discussion of this point, I do not subscribe to the majority’s broad remand order.
In particular, the majority purports to allow Castellano to retry state law claims against the two remaining appellants. This is wrong for two reasons. As Judge Barksdale notes, Castellano did not appeal from the magistrate judge order consolidating his state law malicious prosecution claim into a § 1983 claim. Moreover, Cas-tellano has clearly disavowed a state law claim as recently as in his response to the petition for rehearing en banc. The disavowal turns on quirks of state law rather than on this court’s constitutional about-face.1 The majority opinion continues a troublesome trend in this court’s recent en banc decisions of deviating from normal standards of appellate practice. See, e.g., United States v. Southland Mgmt. Corp., 326 F.3d 669 (5th Cir.2003) (en banc) (Jones, J., concurring); Coggin v. Longview Indep. Sch. Dist., 337 F.3d 459 (5th Cir.2003) (en banc) (Jones, J., dissenting). I dissent from this apparently unnecessary remand.2
On the other hand, I cannot agree with Judge Barksdale’s argument that Castella-*962no waived any possible constitutional claim by his trial court pleadings. At every step of the litigation, he conscientiously attempted to conform to this court’s decisions and to accomplish the ultimately impossible task of harmonizing our case law with that of the Supreme Court. Because this court changed the game technically on Castellano, he should be allowed to retry his claim as one for violation of procedural due process based on the appellants’ fabrication of evidence against him.3 Judge Barksdale also powerfully argues that because Texas law affords Castellano an adequate state remedy in a malicious prosecution claim, the Pamtt doctrine withholds a constitutional remedy. While this position may prove correct, we have no post-Parmtt guidance on it from the Supreme Court, and several courts have allowed claims like Castellano’s to proceed without mention of Parratt. See, e.g., Newsome v. McCabe, 256 F.3d 747 (7th Cir.2001); Jean v. Collins, 221 F.3d 656 (4th Cir.2000) (en banc); Brady v. Dill, 187 F.3d 104, 114 (1st Cir.1999); McMillian v. Johnson, 88 F.3d 1554, 1566-70, on reh., 101 F.3d 1363 (11th Cir.1996); Taylor v. Waters, 81 F.3d 429, 436 n. 5 (4th Cir.1996); Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988); Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir.1988). For now, I would side with the other appellate courts and concur in this portion of the majority’s remand.
RHESA HAWKINS BARKSDALE, Circuit Judge, with whom EMILIO M. GARZA, Circuit Judge, joins, concurring in part and dissenting in part:
As is true of many well meaning, attempted solutions to long-standing, significant problems, the majority opinion offers good news and bad. The good is our finally proscribing a claim under 42 U.S.C. § 1983 for malicious prosecution. The bad comes in two doses: substituted for the freshly minted proscription is an erroneous new § 1983 claim for a due process violation; and this action is being remanded for a new, open-ended trial not only on that new claim but on others as well. This double-barrelled blast of bad news is compounded by Castellano’s never having requested on appeal any of the relief provided him so generously, albeit so erroneously, by the majority sua sponte. In sum, while I concur fully in the good news, I must respectfully dissent from the bad.
The starting point for the new § 1983 claim’s being erroneous is the maxim “Ubi jus, ibi remedium” — “Where there is a right, there is a remedy”. See, e.g., Texas & P.Ry. Co. v. Rigsby, 241 U.S. 33, 40, 36 S.Ct. 482, 60 L.Ed. 874 (1916). Our federal system counterpoint is: “Where there is a right, there may not be a federal law remedy”. Restated, it may be that the remedy must be through state law. This reflects, among other things, the limited powers granted by our federal constitution, the concomitant limited role of federal courts, and the proper balance between state and federal law.
Accordingly, it is indeed passing strange that, on the one hand, the majority properly prohibits pursuing a state law malicious prosecution claim under § 1983, while, on the other, it improperly creates, sua sponte no less, a new federal law remedy to be pursued under § 1983: a witness’ pre-trial evidence fabrication and perjury at trial equals denial of Fourteenth Amendment due process. (The majority does not state, however, whether the denial is “substantive” or “procedural”; as discussed infra, that distinction is a critical factor.) It is even more strange that the *963majority creates this new remedy in the face of the crystal clear limiting signal in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (holding no claim under § 1983 for malicious prosecution based on asserted Fourteenth Amendment substantive due process right to no prosecution without probable cause), especially the concurrence by Justice Kennedy, id. at 281, 114 S.Ct. 807. No authority need be cited for the rule that federal courts should avoid constitutional issues if possible, yet the majority goes out of its way, sua sponte, to create this new remedy.
On top of all this, the majority remands, sua sponte, for a new trial on this new remedy and several other issues. In other words, on appeal, Castellano has not sought any of this relief. Under our long established rules of appellate procedure, this failure alone precludes the majority’s sua sponte remedy-creation and remand.
Consistent with my dissent from the vacated panel opinion, I concur in the holding that malicious prosecution may not be pursued through § 1983. See Castellano v. Fragozo, 311 F.3d 689, 712 (5th Cir.2002) (Barksdale, J., dissenting), vacated by 321 F.3d 1203 (5th Cir.2003); Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir.1999) (Jones, J., concurring). This was the sole reason for en banc review. Most regrettably, new, unbriefed issues have been used to diminish, if not swallow, this new holding. Again, the majority has confected, sua sponte, a new § 1983 due process claim to replace the now torpedoed § 1983 malicious prosecution claim. Again, to make matters even worse, it remands, sua sponte, for an open-ended new trial on this and other issues.
Accordingly, I must respectfully dissent in part. The majority erred in establishing this new § 1983 claim. And, again, in order to establish it and to remand for the new trial on it and other claims, the majority turned its back on long-standing rules of appellate procedure. There is no justification for creating this new § 1983 claim and remanding to allow Castellano yet another round of litigation, despite his repeated failures at trial and on appeal to raise the very issues the majority now allows him belatedly to try on remand. We are not a court of original error; yet that is the role played by the majority. It has turned the trial and appeal process on its head.
I.
At this stage, it is critical to appreciate that only two defendants remain in this action: Fragozo, a police officer who was a part-time security guard for Castellano; and Sanchez, who was employed by Castel-lano. Fragozo and Sanchez are linked in various ways, including alleged fabrication of evidence prior to, and alleged perjury at, Castellano’s criminal trial. Fragozo is the requisite “state actor” for § 1983 purposes.
The following defendants no longer remain in this action; the law of the case bars Castellano from bringing any of them back in on remand. Dismissed were: the County of Bexar, Texas; its district attorney’s office; its prosecutor; the City of San Antonio, Texas, for which Fragozo was a police officer; and Alfred Castro, an arson investigator for that city’s fire department. Immediately after removal to federal court, the county, the district attorney’s office, and the prosecutor were dismissed on the basis of prosecutorial immunity. At trial, each of the then remaining four defendants moved for judgment as a matter of law, with that relief being granted the city; and, although the jury returned a verdict against Fragozo and Sanchez, it did not find Castro liable. In sum, of the original seven defendants, only two remain.
*964Castellano did not cross-appeal the dismissal of these five defendants. Again, the law of the case bars him from bringing any of them back in on remand. Again, only Fragozo and Sanchez remain. In conjunction with those two remaining defendants, the majority opinion contains several errors and omissions related to the procedural history of this action which demonstrate, in part, why the new § 1983 claim and remand are improper.
First, Castellano’s third amended complaint presented § 1983 claims under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. According to the majority, all but the Fourth Amendment claim were dismissed. Maj. Opn. at 944, 954, and 956. Instead, all but the Fourth and First Amendment claims were dismissed. Castellano abandoned the latter.
According to the majority, Castellano, by amendment to his complaint, abandoned his state law malicious prosecution claim. Maj. Opn. at 960 and 961. Instead, over Castellano’s objection, the magistrate judge merged that state law claim with Castellano’s § 1983 Fourth Amendment claim.
This case was tried on Castellano’s now proscribed § 1983 malicious prosecution claim; a quite substantial jury verdict resulted. But, as noted, that verdict was against only two individuals. When they appealed, Castellano did not cross-appeal any of his numerous dismissed claims (ie., § 1983 claims concerning the Fifth, Sixth, Eighth, and Fourteenth Amendments); or the consolidation of his Fourth Amendment claim with his state law malicious prosecution claim; or the dismissal of the other defendants, such as the city. Accordingly, the only issue on appeal — including before our en banc court — was the jury’s malicious prosecution verdict against Sanchez (Castellano’s former employee) and Fragozo (the policeman who had worked for Castellano as a part time security guard and was linked to Sanchez).
Castellano was successful before the panel. At rehearing en banc, he provided no new briefing, electing to rely on his panel brief. As discussed infra, the majority states that, although Castellano did not cross-appeal, he nevertheless urged, at some point on appeal, affirmation of the jury’s malicious prosecution verdict on the separate basis of due process. This is simply not correct. And, although the majority does not suggest Castellano urged affirmation on the basis of other constitutional and state law claims, it nevertheless remands for a new trial with respect to those claims as well.
II.
The majority remands for a new trial on the following: its new Fourteenth Amendment due process claim (again, as discussed infra, it does not distinguish between. “substantive” and “procedural”); a Fourth Amendment claim; a state malicious prosecution claim; and “any other” claim under state law when, on remand, Castellano amends his complaint for the fourth time. I would not allow a new trial on any of these.
A.
The new § 1983 due process claim con-fected by the majority fails on two bases. First, the issue was never presented on appeal. Second, it is barred by the Par-rott doctrine.
1.
Our prudential appellate rules preclude us from entertaining a Fourteenth Amendment due process claim of any stripe. This is especially true because it is a constitutional issue; one we should, and can properly, avoid. In district court, Castel-*965lano pleaded a procedural due process claim, which was dismissed along with his Fifth, Sixth, and Eighth Amendment claims. Castellano prevailed at a jury trial on another basis (malicious prosecution) against only two of seven defendants.
When those two defendants appealed, Castellano elected not to raise by cross-appeal (or otherwise) the dismissal of any of these claims, including his Fourteenth Amendment due process claim (again, he had abandoned his First Amendment claim). In general, even without filing a cross-appeal, an appellee can still present an issue on appeal that does not seek to modify the judgment; in other words, he must cross-appeal only when he seeks to alter it. E.g., Kelly v. Foti, 77 F.3d 819, 822 (5th Cir.1996). But, obviously, even if a cross-appeal is not required to present an issue, the appellee must still present it on appeal if he wants it considered. E.g., United States v. Hill, 42 F.3d 914, 917 n. 8 (5th Cir.), cert. denied, 516 U.S. 843, 116 S.Ct. 130, 133 L.Ed.2d 79 (1995). Castellano did neither.
The majority holds, based upon an extremely thin reed, that Castellano presented the new Fourteenth Amendment due process claim, thereby allowing our court to consider it: “Castellano has attempted to salvage his verdict, as put at oral argument, on the basis that contrary to the ruling of the magistrate judge he did state a due process claim and it in practical effect was before the jury”. Maj. Opn. at 960 (emphasis added). Generally, of course, our court does not consider issues raised for the first time at oral argument — most especially at en banc oral argument. E.g., Vargas v. Lee, 317 F.3d 498, 503 n. 6 (5th Cir.2003). Although Castellano did plead a procedural due process claim in district court, he did not present a due process claim at any point on appeal — not in his panel brief, not in his en banc brief (which merely adopted the panel brief), and not even at en banc oral argument.
This claim may not be considered for three reasons: (1) at en banc oral argument, Castellano never urged this court to affirm on due process grounds — -procedural or otherwise; (2) in his panel and en banc briefs, he never urged affirmance on such grounds; and (3) at issue is a jury verdict for malicious prosecution, to which the cross-appeal exception relied on by the majority, discussed infra, does not apply.
a.
Even assuming we should consider an issue presented for the first time at en banc oral argument, I am puzzled by the majority’s insistence that, at that argument, Castellano urged affirmation on the basis of due process. Castellano never did so; in fact, on several instances, he refused to make such a request, even when repeatedly pointed in that direction by our court.
There were several procedural due process questions asked Castellano’s counsel by several judges. Most notably, immediately after a colloquy over whether procedural, instead of substantive, due process had been left open by Albright (Castellano presumed, as he has since his first due process claim in district court, that only procedural due process was available), another judge: (1) provided a lengthy description of the procedural due process claim in the context of perjured testimony and an unfair trial; (2) identified the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), line of cases; and (3) asked Castellano’s counsel what sort of argument he would make under this legal theory in support of the judgment. To his credit, because he had never presented the issue, Castellano’s counsel responded: “Your honor, I’m not sure I can answer that question today, but I would certainly *966welcome the opportunity to brief the issue fully if the court would so request”. Cas-tellano did not then urge, just as he had not previously urged, our court to affirm on the basis of a due process violation. This was confirmed by the fact that he was not prepared to discuss the point and did not attempt to wing it at en banc oral argument.
b.
Nowhere in his panel or en banc briefs does Castellano request this court to affirm on the basis of a § 1983 due process claim. One issue raised by defendants’ appeal was the claimed reversible error caused by the quite erroneous inclusion of the term “due process” in the malicious prosecution jury instruction. But Castel-lano never contended on appeal that the inclusion of this term was a correct statement of the law or that our court should affirm on due process grounds.
In fact, Castellano took the opposite position. In claiming in his panel brief that there was no error in the instructions— certainly not reversible error — Castellano was saying that the erroneous inclusion of the term “due process” in the instruction did not affect the trial’s outcome. He was not asserting that our court should affirm the judgment because procedural due process so requires, or even that the jury reached its verdict on that basis. To the contrary, he was maintaining that we should affirm in spite of the erroneous inclusion of the words “due process” in the instruction. Neither of Castellano’s briefs (panel or en banc) includes a contention that this court should affirm because his due process rights were violated.
c.
Even if Castellano had urged affirmation based on due process grounds, he would have had to cross-appeal in order to do so; the exception to the cross-appeal rule simply does not apply in this instance. The majority states: “It is settled that an ap-pellee may urge any ground available in support of a judgment even if that ground was earlier and erroneously rejected by the trial court”. Maj. Opn. at 960 (emphasis added; citing Hill, 42 F.3d at 917 n. 8; Hoyt R. Matise Co. v. Zurn, 754 F.2d 560, 565 n. 5 (5th Cir.1985); City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 n. 4 (5th Cir.1976)). For some instances (not so here), this is a correct statement of the rule. Here, however, the majority mistakenly stretches this rule far beyond its intended scope. Again, our court is not affirming a judgment; instead, we are vacating a judgment premised on a jury’s verdict based on a malicious prosecution, not a due pivcess, claim. Again, the exception to the cross-appeal rule only applies where the appellee urges affirmation on the basis of a claim rejected by the district court; Castellano did not do so. He was quite satisfied with, and clung tenaciously to, his judgment based on malicious prosecution.
An examination of the cases relied upon by the majority demonstrates the exception’s proper application. In Hill, on defendant’s appeal from the sentence imposed following his guilty plea, we allowed the Government to urge affirmation on the basis of a statute that had been rejected by the “district court’s ruling”. The judgment was affirmed. 42 F.3d at 917 n. 8. In Zurn, the appellee maintained that the record provided an alternative ground to support the district court’s bench trial decision. Our court held an appellee may take the position on appeal, without filing a cross-appeal, that the record supports “the court’s judgment”. 754 F.2d at 565 n. 5. Likewise, our court held in Birchfield that the district court’s statement, upon dismissing the complaint on two grounds, to the effect that defendant’s other contentions were inappropriate for determination on a motion to dismiss, did not require a *967cross-appeal in order to assert those other contentions on appeal. 529 F.2d at 1254 n. 4. None of these cases involves a jury verdict.
To contend that a trial judge’s ruling on an issue was erroneous and that we should therefore affirm, without a cross-appeal, on that basis may, in some instances (not so here) be correct. That is not the situation at hand. Castellano has failed to follow any of our appellate rules with respect to the due process claim he presented only in district court; we are not permitted to consider it.
2.
Assuming arguendo that, on appeal, Castellano did properly present a due process claim, it is barred by the Parratt doctrine. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overrated in part by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), held: where state law provides an adequate post-deprivation remedy, the plaintiff is barred from claiming, through § 1983, a procedural due process violation. This prohibition, however, does not extend to claimed violations of recognized substantive rights incorporated in the Fourteenth Amendment. E.g., Augustine v. Doe, 740 F.2d 322 (5th Cir.1984) (holding Parratt inapplicable to claimed violation of recognized Fourth Amendment substantive right, but remanding another claim to determine whether state actors’ conduct was “official policy”, or instead “random and unauthorized” and therefore a procedural due process violation — a claim barred by Parratt). For this reason, understanding the distinction between procedural and substantive due process, and determining which claim Castellano pleaded in district court, is most essential. Unfortunately, the majority brushes this aside in its relentless effort to provide Castellano a remedy — any remedy — on remand.
Along this line, it is again imperative to recognize the defendants who are, and are no longer, in this action. The county, the district attorney’s office, the prosecutor, the city, and its arson investigator are out; only Fragozo and Sanchez remain. In short, Fragozo is the only “state actor” and an extremely tenuous one at that.
As discussed below, in district court, Castellano pleaded a procedural due process violation. Indeed, the Supreme Court has only characterized the type of conduct Castellano alleges — fabricated evidence and perjured testimony — as violative of procedural, not substantive, due process. Carving out a new, stand-alone substantive right under the Fourteenth Amendment, one that was not pleaded by Castellano in district court and has never been articulated by the Supreme Court, is not warranted, to say the least. This is especially true where the alleged conduct by the state actor (Fragozo, the police officer and part time security guard for Castellano) is of the “random and unauthorized” type pinpointed by Parratt as being violative of procedural due process. Parratt, 451 U.S. at 541, 101 S.Ct. 1908.
In district court, Castellano pleaded a procedural, not substantive, due process violation. In his third amended complaint, he claimed that he was deprived of his right to due process and a fair trial because the defendant witnesses allegedly fabricated evidence and gave perjured testimony. Defendants were of the view that, post-Albright, a § 1983 claim for substantive due process was prohibited. Therefore, they contended in their summary judgment motions that Castellano had pleaded a proscribed substantive due process claim that should be dismissed.
In response, Castellano seized every opportunity to clarify his position, denying that his claim was for a violation of substantive due process; in one instance, he *968called defendants’ characterization “disingenuous”. Instead, Castellano carefully-explained that, because Albright apparently did not allow a stand-alone substantive due process claim, he was not asserting one.
Whether this interpretation of Albright is accurate is irrelevant. For the purpose of deciding what claims Castellano presented in district court, we need look no further than to his own interpretation. The only substantive constitutional violations Castellano claimed were under the First, Fourth, Fifth, Sixth,, and Eighth Amendments, made applicable through the Fourteenth Amendment. And, for a separate Fourteenth Amendment claim, he asserted violation of his right to procedural due process and was deliberate in explaining to the magistrate judge that he was not claiming a violation of substantive due process.
Pursuant to Parratt, the existence of an available independent and adequate state remedy precludes Castellano’s procedural due process claim. The only exception is when the plaintiff “pleads and proves” that available state remedies are inadequate to redress the wrong. E.g., Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). Castellano did not do so; on the contrary, he pushed for relief through an independent state malicious prosecution claim, apparently appreciating its “adequacy” enough to object when the magistrate judge consolidated it with his Fourth Amendment claim.
Castellano’s pleadings aside, and as noted, the Supreme Court has only characterized conduct of the type alleged by Castellano as a violation of procedural due process. The majority correctly cites Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935), for the proposition that fabricated evidence and perjured testimony are violative of due process. Maj. Opn. at 957. But as Chief Justice Rehnquist explained in the Al-bright plurality opinion, such activities are properly understood, under the Mooney, Brady line of cases, to implicate procedural, not substantive, due process:
Winship [397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)] undoubtedly rejected the notion that all of the required incidents of a fundamentally fair trial were to be found in the provisions of the Bill of Rights; but it did so as a matter of procedural due process: “This notion [that the government must prove the elements of a criminal case beyond a reasonable doubt] — basic in our law and rightly one of the boasts of a free society — is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’ ” Similarly, other cases relied on by the dissent, including Mooney ... [and] Brady ... were accurately described in [United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)] as “dealing with the defendant’s right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution.”
Albright, 510 U.S. at 273 n. 6, 114 S.Ct. 807 (citations omitted; emphasis added).
In fact, the conduct described in some of these cases, prosecutorial — not witness— fabrication of evidence and its knowing use of perjured testimony, for example, is much more fundamental to the fairness of a trial than, as with Fragozo and Sanchez, a witness’ independent fabrication of evidence and perjury — conduct not linked to the prosecutor’s conduct. Nevertheless, the Supreme Court characterized such prosecutorial conduct as procedural. Indeed, this is why, for deciding whether there is a procedural due process violation, Parratt and its progeny consider whether conduct was “random and unauthorized” (invoking procedural due process), or in*969stead part of an established state procedure that is fundamentally flawed. See Parratt, 451 U.S. at 543, 101 S.Ct. 1908; see also Copeland, 57 F.3d at 479. Here, the former, not the latter, factor is in play concerning the two remaining defendants.
This procedural/substantive distinction is indispensable to § 1983 analysis because, as discussed, Parratt precludes § 1983 claims predicated on procedural due process where there is an adequate state remedy, but does not preclude such claims predicated on the violation of substantive rights that have been incorporated into the Fourteenth Amendment. But even if we assume arguendo that, in district court, Castellano did claim a violation of substantive due process (an assumption quite forcefully rejected by Castellano), it is not at all clear that a witness’ fabricating evidence and committing perjury at trial is a sufficient basis for a substantive due process violation.
As noted, courts have permitted § 1983 recovery for recognized substantive violations, despite the availability of state law remedies. See, e.g., O’Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985) (concluding the Parratt doctrine, while barring § 1983 claim for procedural due process, does not bar one for claimed violation of the “substantive eighth amendment right to be free from cruel and unusual punishment”) (emphasis added); Augustine, 740 F.2d at 327 (holding Parratt doctrine does not bar § 1983 claim for violation of the “substantive [Fourth Amendment] right protected by the Constitution against infringement by state governments”). But I find no cases, and the majority cites none, where a court has recognized a substantive due process violation for a witness’ evidence fabrication and perjury. And some circuits have interpreted Albright as precluding all § 1983 claims that are predicated on a no more specific constitutional violation than substantive notions of due process of law (but as allowing procedural due process or articulated constitutional provisions such as the ■ Fourth Amendment). See, e.g., Merkle v. Upper Dublin School Dist., 211 F.3d 782, 791 (3d Cir.2000).
In an apparent effort to side step the Parratt bar, the majority refers in its opinion only to “due process” (due process simpliciter?). See, e.g., Maj. Opn. at 952 956, 957, and 958. But, to truly escape Parratt, the majority must mean substantive due process. The Parratt doctrine precludes simply blending procedural and substantive due process; instead, it requires identifying the precise nature of the claimed constitutional violation.
The conduct about which Castellano complained in district court constitutes a procedural due process violation for which state law provides an adequate post-deprivation remedy. Remember, Castellano is not seeking a new criminal trial because his trial was fundamentally unfair. The state courts provided habeas relief, and the State did not re-prosecute. Instead, Castellano is seeking damages for alleged wrongs — now only by Sanchez and Frago-zo — that occurred before and during his criminal trial. In such instances, the state post-deprivation remedies are the “best the state can do” to allow injured individuals recovery after injury has occurred. Augustine, 740 F.2d at 327. Such state remedies are sufficient to address due process violations that are “random and unauthorized” and therefore violate procedural due process. Id.
The majority is attempting to treat conduct the Supreme Court has already characterized as potentially violative of procedural due process as though it is also violative of a recognized substantive constitutional right (as with O’Quinn and the Eighth Amendment or Augustine and the Fourth). In so doing, it apparently hopes *970that Castellano’s § 1983 claim will escape the effect of Parratt and somehow become “supplementary to [rather than precluded by] state remedies for constitutional injury”. Maj. Opn. at 957. In support, the majority cites Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Id. But that case, involving police officers breaking into and ransacking a home, concerned the recognized substantive Fourth Amendment right made applicable by the due process clause of the Fourteenth Amendment. The majority attempts to •slip past the Parratt bar on this same ground. Effectively, the majority can only be considering Castellano’s claim as some sort of substantive due process claim, but has avoided the damning label.
The alleged conduct by Sanchez and Fragozo is precisely the type of “random” and “unpredictable” activity that Parratt expressly prohibits being remedied through a claim under § 1983 — this conduct relates to procedural due process and there are adequate state remedies. Again, Parratt distinguishes between the “random and unauthorized (and hence unpredictable) conduct of a state actor” (such as is at issue here) and “conduct that the state can contain and direct by instituting procedural safeguards”. Augustine, 740 F.2d at 327. The availability of a post-deprivation state tort remedy does satisfy due process in the former instance, but not in the latter. Id. Again, the conduct at issue here — alleged witness fabrication of evidence and perjury — is precisely the sort of “random and unauthorized” conduct to which Parratt applies; therefore, the existence of adequate post-deprivation state remedies, such as through a malicious prosecution claim, bars a § 1983 procedural due process claim.
Relying almost exclusively on Justice Kennedy’s Albright concurrence, the majority concludes that “the Parratt doctrine is [not] applicable to Castellano’s claim that the manufacturing of evidence and use of perjured testimony at trial ... denied him due process”. Maj. Opn. at 958. The majority first claims that Justice Kennedy warned of the contra-indications of Parratt, noting that in some instances federal power ought to be vindicated, rather than rely on state law remedies. This is true; but that is only part of the equation. The majority then refers, by way of example, to Monroe’s, “reading of § 1983 as supplementary to state remedies for constitutional injury”. Maj. Opn. at 957. Returning to Justice Kennedy, the majority states that this notion — of § 1983 claims supplementing state remedies — “finds expression in Justice Kennedy’s statement that a claim of malicious initiation of criminal proceedings ‘differs in kind’ from claims that implicate ‘fundamental fairness in the determination of guilt at trial’ ”. Maj. Opn. at 957. The majority then determines that this latter type of claim is one “in which the federal power ought to be vindicated” and is therefore not barred by Parratt. Id.
As a preliminary matter, Justice Kennedy made a factual distinction between malicious initiation of charges and conduct that occurs during a trial; this was only a factual, chronological distinction. The majority’s conclusion is that the distinction Justice Kennedy made between the conduct in Albright’s case and in other cases is actually a significant legal decision, identifying the conduct in those other cases as “beyond the reach of Parratt ”. Maj. Opn. at 958. Justice Kennedy never made such a conclusion. As noted, Chief Justice Rehnquist, writing for the plurality, characterized these as violations of procedural due process; Justice Kennedy did not challenge that.
That Justice Kennedy walked Albright’s conduct through the Parratt analysis, but did not do so for other types of conduct *971(like that at issue here), in no way implies that Parratt does not apply to the latter. Albright did not involve witness evidence fabrication and perjury; accordingly, Justice Kennedy did not address it. But, by walking the conduct at issue here through the steps Justice Kennedy applied in Al-bright, it is clear that Parratt’s proscriptions are a perfect fit.
Even assuming, arguendo, that Justice Kennedy’s factual distinction is meant to imply that there are substantive due process rights in the fundamental fairness of a trial, he does not identify conduct sufficient to invoke them beyond a prosecutor’s knowing use of perjury (.Mooney) and the requirement of proving elements of a criminal conviction beyond a reasonable doubt ('Winship). It is the majority that holds that a loitness’ evidence fabrication and perjury are sufficient to invoke it.
But again, a due process claim can bypass Parratt in only two ways: (1) the claim is substantive; or (2) it is procedural, but available state remedies are inadequate. There is no dispute that Castellano has neither pleaded nor proved the inadequacy of state remedies. Apparently this is why the majority finds it necessary to provide cover for the only possible claim— substantive due process. But, because Castellano argued to the magistrate judge against construing his claim as substantive, the majority labels it, simply, “due process”.
To support bypassing Parratt, the majority points to Justice Kennedy’s statements that courts have “been cautious in invoking the rule of Parratt” and that “[w]e want to leave an avenue open for recourse where we think the federal power ought to be vindicated”. Maj. Opn. at 957 (quoting Albright, 510 U.S. at 284-85, 114 S.Ct. 807 (Kennedy, J., concurring)). Again, the majority opines that one avenue for vindication is where a witness fabricates evidence or commits perjury; but, again, Justice Kennedy never says that. Again, the majority cites language from earlier in Justice Kennedy’s concurrence, where he made a factual distinction, without elaboration, on the difference between the type of conduct in Albright and that in other cases. See Albright, 510 U.S. at 283, 114 S.Ct. 807 (Kennedy, J., concurring). Of particular importance to this action, Justice Kennedy then cautioned, however:
But the price of our ambivalence over the outer limits of Parratt has been its dilution.... The Parratt rule has been avoided by attaching a substantive rather than procedural label to due process claims (a distinction that if accepted in this context would render Parratt a dead letter) and by treating claims based on the Due Process Clause as claims based on some other constitutional provision.
Albright, 510 U.S. at 285, 114 S.Ct. 807 (Kennedy, J., concurring). (Of course, this is precisely what the majority is doing— trying to characterize the two remaining defendants’ conduct as violative of something other than procedural due process, so that the new claim can slip past Par-ratt.) To stem this “dilution”, Justice Kennedy offers this compelling guidance:
These evasions are unjustified given the clarity of the Parratt rule: In the ordinary case where an injury has been caused not by a state law, policy, or procedure, but by a random and unauthorized act that can be remedied by state law, there is no basis for intervention under § 1983, at least in a suit based on “the Due Process Clause of the Fourteenth Amendment simpliciter”.
Id. (emphasis added). There can be no more accurate description of Castellano’s due process claim in district court. (Again, he does not present such a claim on appeal.)
*972As a final note, the very reason why, in state court, Castellano added federal law claims must not be overlooked. He did so through amended complaints in an apparent effort to avoid state law immunity. Justice Kennedy warned: “The commonsense teaching of Parratt is that some questions of property, contract, and tort law are best resolved by state legal systems without resort to the federal courts”. Albright, 510 U.S. at 284, 114 S.Ct. 807 (Kennedy, J., concurring). He later notes that “[t]he Parratt principle respects the delicate balance between state and federal courts and comports with the design of § 1983.... ” Id. Parratt makes very clear: “Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process”. Parratt, 451 U.S. at 544, 101 S.Ct. 1908. In Parratt, there was “no contention that the procedures themselves [were] inadequate”. Id. at 543, 101 S.Ct. 1908. Nor is there one here.
B.
In his third amended complaint, Castel-lano added a Fourth Amendment claim. As noted, the magistrate judge consolidated it with Castellano’s original state law malicious prosecution claim. Although Castellano objected to this rejection of the state law malicious prosecution claim as a separate, stand-alone claim, he never objected to the transformation of the Fourth Amendment claim into a § 1983 malicious prosecution claim. And, as with his procedural due process claim, he did not present the issue on appeal.
We should not remand for a new trial on a Fourth Amendment claim. At trial and on appeal, despite Albright, Castellano repeatedly turned his back on the one claim he had under federal law — the Fourth Amendment. He was denied trial on a Fourth Amendment claim and a supplemental state malicious prosecution claim; but, he elected not to contest that denial on appeal.
Litigation must come to an end; fairness must be shown both sides. In my view, it is quite unfair to defendants, especially in the light of what repeatedly took place at trial concerning the Fourth Amendment claim, to afford Castellano yet another opportunity to try such a claim.
C.
As noted, Castellano originally pleaded a state malicious prosecution claim. As also noted, the majority incorrectly states he “amended his complaint, purposely abandoning [this] claim under state law”. Maj. Opn. at 960. In his original state court complaint, Castellano presented only a malicious prosecution claim. Following his addition of § 1983 claims (apparently to avoid state law immunity) and the subsequent removal of the action to federal court, the magistrate judge ruled that Cas-tellano’s action was based entirely on malicious prosecution in the context of a claim brought pursuant to § 1983. Castellano’s motion for reconsideration was denied.
The magistrate judge erred in placing the state law claim under § 1983; Castel-lano identified the error and objected. But, as noted, he never presented the issue on appeal. Instead, he contended in our court that the judgment was correct (and, by extension, that the consolidation ruling upon which the verdict is based should stand). Significantly, the majority never suggests Castellano presented this issue on appeal. Nevertheless, it remands for a new trial to include a malicious prosecution claim.
The majority states that Castellano “purposely abandoned” his state law malicious prosecution claim “because our case law said the elements of malicious prosecu*973tion under state law and under a § 1983 claim were the same”. Maj. Opn. at 960-1. As noted, this is inaccurate; the magistrate judge, not Castellano, merged the claims. Presumably, the majority, out of sympathy for Castellano, would still give him the benefit of this change in our precedent, considering it unfair for Castellano to be burdened by our earlier erroneous precedent.
But Castellano was not so burdened. He made a specific objection by motion to the consolidation (which was denied). Thereafter, as noted, he did not present the issue on appeal — even though he had every reason to do so. He was quite aware of both Albright and Judge Jones’ extremely compelling concurrence in Kerr, and had access to the law with respect to this issue in other circuits. Every factor on which our court now relies in changing the law concerning § 1983 malicious prosecution was either expressly or constructively before Castellano in district court. Indeed, he considered the magistrate judge’s ruling on this issue erroneous. It was his option, therefore, to present this contention on appeal. He elected not to do so. We cannot now pretend that he did. Nor can we allow him to pursue this claim on remand.
D.
As a final act of lawyering this action for Castellano, the majority also allows him to plead “any [other] state claims he may have” on remand. Maj. Opn. at 961. This action has become open-ended. In essence, the majority is starting it anew. Instead, it should be at an end.
III.
Sympathy for a litigant does not permit us to entertain claims not presented on appeal — most especially, those of constitutional dimension. It most certainly does not allow us to create, sua sponte, a new remedy for that litigant and an erroneous remedy at that. At Castellano’s election, only the now-proscribed § 1983 malicious prosecution claim was at issue before our court; the following claims were not: (1) Fourteenth Amendment due process; (2) Fourth Amendment; (3) state malicious prosecution; and (4) any other state claim Castellano can dream up on remand. In addition to the new § 1983 due process claim’s being violative of Parratt, any relief the majority accords Castellano on these issues greatly exceeds the scope of this appeal and is violative of long established appellate rules to which we require parties to adhere — day in and day out — at their prejudice.
Accordingly, although I fully concur in our finally proscribing a claim under § 1983 for malicious prosecution, I must respectfully dissent from both the creation of the new § 1983 due process remedy and the remand of this action for yet another round of litigation. Instead, I would vacate and render for appellants. This is not an unfair result — far from it. It is the result for which Castellano, by his election on appeal, rolled the dice ... and lost.
. A judgment or settlement of a Texas Tort Claims Act case involving a government employer bars the continuation of an action or judgment against an employee of that department "whose act or omission gave rise to the claim.” Texas Civil Practice & Remedies Code § 101.106; Thomas v. Oldham, 895 S.W.2d 352, 355-57 (Tex.1995); see also Owens v. Medrano, 915 S.W.2d 214 (Tex.App. — Corpus Christi 1996, writ den'd.) (judgment against City of San Benito on claims including one for malicious prosecution bars suit against its police officers on same claim); Brand v. Savage, 920 S.W.2d 672, 674-75 (Tex.App.— Houston [1st Dist.] 1995).
. I also dissent from allowing Castellano on remand to try a Fourth Amendment claim properly limited, in events and damages, to pretrial events. He never sought such limited relief in the trial court. Awarding it here is, as Judge Barksdale says, impermissibly law-yering the case for Castellano.
. Whether this claim will survive a defense based on the appellants' absolute witness immunity has not been briefed and remains open on remand.