856 F.2d 128
49 Ed. Law Rep. 18
MEDICAL LAUNDRY SERVICE, A DIVISION OF OPLCO, INC.,
The BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA,
BIRMINGHAM; S. Richardson Hill, both as an individual and
in his capacity as President of the University of Alabama
("UAB"); Dennis Sanchez, both as an individual and in his
official capacity as Assistant Director of the Department of
Pharmacy at UAB; Vance Alexander, both as an individual and
in his official capacity as Associate Director of the
Department of Pharmacy at UAB; Herman Lazarus, both
individually and in his official capacity as Director of the
Department of Pharmacy at UAB; James E. Moon, both
individually and as Administrator of the University of
Alabama Hospitals; Bob Cummings, both individually and as
Associate Director of Purchasing at UAB; Clark Taylor, both
individually and in his official capacity as Associate
Administrator for Operations at UAB; Lester Elliot, both
individually and in his official capacity as Supervisor of
the Linen Service Department at UAB; Martin Novak, both
individually and in his official capacity as Assistant
Administrator for Operations of UAB; et al., Defendants-Appellees.
United States Court of Appeals,
Sept. 28, 1988.
Fred McCallum, Jr., Lange, Simpson, Robinson & Somerville, Richard Patrick Carmody, Birmingham, Ala., for plaintiff-appellant.
Ina B. Leonard, Office of Counsel, Katherine S. Weed, Birmingham, Ala., for Bd. of Trustees of the University of Alabama, et al.
Leura J. Garrett, Asst. Atty. Gen., Montgomery, Ala., amicus curiae for State of Ala.
Appeal from the United States District Court for the Northern District of Alabama; Sam C. Pointer, Jr., Judge.
Before RONEY, Chief Judge, and ANDERSON and EDMONDSON, Circuit Judges.
The court sua sponte amends the opinion issued on March 23, 1988, and published at 840 F.2d 840, by deleting footnote 2 and substituting therefor the following footnote 2:
2. Other issues, including the issue raised by Chief Judge Roney's dissent, res judicata, collateral estoppel, and the application of Parratt v. Taylor, 451 U.S. 527 [101 S.Ct. 1908, 68 L.Ed.2d 420] (1981), were neither addressed by the district court nor briefed on appeal, and therefore should be addressed initially on remand.
Chief Judge Roney in dissent raises the issue of whether a simple breach of contract by the state rises to the level of a constitutional deprivation. While we probably would agree with Chief Judge Roney's resolution of this case, we exercise our discretion not to address and not to decide the issue because the issue has not been raised by the parties or briefed. We prefer that the issue be addressed and decided in the first instance by the district court on remand.
The court having been polled at the request of one of the members of the court and a majority of the circuit judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; 11th Circuit Rule 35-5), the case shall not be reheard in banc and the mandate shall issue in due course.