Cinel v. Connick

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.

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