                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                   _______________________________

                              No. 01-30200
                           (Summary Calendar)
                   _______________________________


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this opinion should not be published and is not precedent except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
