15 F.3d 1338 (5th Cir. 1994), 92-3781, Cinel v. Connick

Docket Nº:92-3781.
Citation:15 F.3d 1338
Party Name: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.
Case Date:March 11, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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15 F.3d 1338 (5th Cir. 1994)

Dino CINEL, Plaintiff-Appellant,


Harry F. CONNICK, Individually and as District Attorney for

the Parish of Orleans, State of Louisiana, et al.,


No. 92-3781.

United States Court of Appeals, Fifth Circuit

March 11, 1994

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[Copyrighted Material Omitted]

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Arthur A. Lemann, III, Lemann, O'Hara & Miles, New Orleans, LA, for plaintiff-appellant.

Dino Cincel, pro se.

Michael Phillip Mentz, Hailey McNamara, Hall, Larman & Papale, Metairie, LA, Raymond Joseph Salassi, Jr., James E. Wright, III, Jones, Walker, Waechter, Poitevent, Carre're & Denegre, John Robert Martzell, Martzell, Thomas & Bickford, New Orleans, LA, for Darryl J. Tschirn.

Victoria L. Bartels, William F. Wessel, Wessel, Bartels & Ciaccio, New Orleans, LA, for Harry F. Connick, et al.

Michael Gerard Riehlman, Asst. Co. Atty., New Orleans, LA, for George Tolar, etc.

Gary Raymond, pro se.

John Emerson Galloway, Galloway, Johnson, Tompkins & Burr, P.L.C., Jacques Francois Bezou, Derussy, Bezou & Matthews, New Orleans, LA, for David Paddison.

Stephen B. Lemann, Gerard Alford Bos, Monroe & Lemann, New Orleans, LA, for Richard Angelico, et al.

Mary Ellen Roy, Debra J. Hale, Phelps, Dunbar, Rutledge C. Clement, Jr., Amelia W. Koch, Locke, Purnell, Rain, Harrell, P.C., New Orleans, LA, for Geraldo Rivera, et al.

Luther T. Munford, Phelps Dunbar, Jackson, MS, for Geraldo and Tribune.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before DUHE and EMILIO M. GARZA, Circuit Judges and STAGG 1, District Judge.

DUHE, 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.


In 1988 Dino Cinel was a Roman Catholic priest at St. Rita's 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

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directing the DA's office to release the materials found in 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 Sec. 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 Appellees' motions to dismiss under Federal Rules of Civil Procedure 12(b)(6). Cinel appeals.


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 Envtl. Study Group, Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 2635, 57 L.Ed.2d 595 (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 Sec. 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 Sec. 1983 Case

The district court applied this Circuit's heightened pleading requirement for Sec. 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

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when the district court rendered its Order and Reasons on August 14, 1992. Subsequently, in Leatherman v. Tarrant County Narcotics Intelligence & 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.

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. Sec. 1983 for a violation of his rights to privacy and due process. 3 To state a cause of action under Sec. 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).

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...

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