Berger v. City of New Orleans

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-30200
(Summary Calendar)
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ERIC BERGER,
Plaintiff-Appellant,
versus
CITY OF NEW ORLEANS; RICHARD PENNINGTON,
in his official capacity as Superintendent of Police,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(CV-00-1596)
_________________________________________________
September 4, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM*:
New Orleans attorneys Frank G. DeSalvo and Harry J. Boyer,
Jr., of Frank G. DeSalvo, A.P.L.C., filed suit on behalf of
Plaintiff-Appellant Eric Berger, a New Orleans Police Officer,
directly under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution and Art. 1 § 3 of the
*
Pursuant to 5TH Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH Cir. R. 47.5.4.
1
Louisiana Constitution against Defendants-Appellees City of New
Orleans and its police Superintendent Richard Pennington, in his
official capacity. The district court dismissed Berger’s suit
pursuant to Fed. R. Civ. P. 12(b)(6) for the obvious reason that
Berger cannot maintain a cause of action directly under the
Fourteenth Amendment when seeking to assert Constitutional
violations against municipalities or governmental actors, but must
employ the applicable statutory mechanism when one exists —— here,
42 U.S.C. § 1983. As a result of our review, we are completely
satisfied that the district court correctly disposed of Berger’s
suit for precisely the right reasons, which are set forth in the
court’s careful analysis. Our review also convinces us that
Berger’s appeal by these same attorneys is wholly without merit, so
we dismiss it as frivolous.
We review the district court’s dismissal under 12(b)(6) de
novo, keeping in mind that such dismissals are disfavored and
infrequently granted.1 This does not mean, however, that an appeal
from such a ruling cannot be frivolous, and this one clearly is.
On appeal, counsel for Berger do not argue that they should have
been given leave to amend their pleadings so as to assert their
client’s claim under the correct statutory framework. Indeed they
could not so argue because they never sought leave to file an
amended complaint, either during the course of proceedings in the
1
Shipp v. McMahon, 234 F.3d 907, 911 (5th Cir. 2000).
2
district court or after that court granted judgment, under either
Rule 59(e) or Rule 60(b). Rather they have continued doggedly to
insist, as they did in the district court, that they are entitled
to pursue a direct cause of action for their public-employee client
under the Fourteenth Amendment. They are absolutely wrong as a
matter of law, and either knew they were wrong all along or clearly
should have known that well before filing this appeal.
The district court correctly noted that we have long harbored
a great reluctance to allow the pursuit of constitutional causes of
action directly.2 Even the most cursory reading of our case law
demonstrates beyond cavil that we have permitted prosecution of
such actions directly under the Constitution only when necessitated
by a total absence of alternative courses and “no other means”
existed to seek “redress for flagrant violations of the plaintiff’s
constitutional rights.”3 When a statutory mechanism is available,
§ 1983 being a prime example, plaintiffs must invoke its
protection.4
Counsels’ reliance on City of Willowbrook v. Olech is not only
misplaced, it is egregiously erroneous.5 Contrary to counsels’
2
Hearth, Inc. v. Dep’t. of Pub. Welfare, 617 F.2d 381 (5th
Cir. 1980).
3
Id. at 382.
4
Id.; see, e.g., Hunt v. Smith, 67 F. Supp. 2d 675, 681 (E.D.
Tex. 1999).
5
City of Willowbrook v. Olech, 528 U.S. 562 (2000).
3
bald misrepresentation to this court, Olech did not approve of a
direct cause of action under the Fourteenth Amendment.
Diametrically to the contrary, the plaintiffs in Olech6 advanced
Fourteenth Amendment claims pursuant to § 1983, the very statute
counsel should have invoked in asserting Berger’s claims —— as they
should have known and, we speculate, did know, given their history
of representing police officers in such cases.
On appeal, Berger’s counsel neither briefed nor listed as a
contested issue the district court’s dismissal of Berger’s
supplemental state law claims pursuant to 28 U.S.C. § 1367(c)(3).
As such failure constitutes abandonment of this claim, it is deemed
waived, so we do not address it.
Even though Berger’s initial suit was not dismissed as
frivolous by the district court, his lawyers’ mindless advancement
of the same flawed legal arguments on appeal clearly reflects
frivolousness. Undeterred, as they should have been, by the
district court’s pellucid explanation of our jurisprudence and by
their own misrepresentation of precedent from this court and the
U.S. Supreme Court, counsels’ prosecution of this appeal is at best
professionally irresponsible and at worst deliberately abusive of
the appellate process, wasting judicial resources and
simultaneously depriving their client of any chance of success that
he might otherwise have had.
6
See Olech, 160 F.3d 386 (7th Cir. 1998); Olech, 1998 WL
196455 (N.D. Ill. 1998).
4
For the foregoing reasons we are in complete agreement with
the district court’s disposition of Berger’s action. Berger’s
appeal of the court’s dismissal of his lawsuit pursuant to Rule
12(b)(6) is dismissed as frivolous, and counsel are ordered to file
memoranda or a joint memorandum, not to exceed twenty (20) pages in
length, within thirty (30) days after this opinion is filed, to
show cause why they should not be sanctioned for their
unprofessional performance in this appeal.
APPEAL DISMISSED as frivolous; COUNSEL ORDERED to show cause why
they should not be sanctioned.
5