Medical Laundry Service, a Division of Oplco, Inc.,plaintiff-appellant, v. the Board of Trustees of the University of Alabama,birmingham; S. Richardson Hill, Both As an Individual Andin His Capacity As President of the University of Alabama("uab"); Dennis Sanchez, Both As an Individual and in Hisofficial Capacity As Assistant Director of the Department Ofpharmacy at Uab; Vance Alexander, Both As an Individual Andin His Official Capacity As Associate Director of Thedepartment of Pharmacy at Uab; Herman Lazarus, Bothindividually and in His Official Capacity As Director of Thedepartment of Pharmacy at Uab; James E. Moon, Bothindividually and As Administrator of the University Ofalabama Hospitals; Bob Cummings, Both Individually and Asassociate Director of Purchasing at Uab; Clark Taylor, Bothindividually and in His Official Capacity As Associateadministrator for Operations at Uab; Lester Elliot, Bothindividually and in His Official Capacity As Supervisor Ofthe Linen Service Department at Uab; Martin Novak, Bothindividually and in His Official Capacity As Assistantadministrator for Operations of Uab; et al., Defendants-appellees, 856 F.2d 128 (11th Cir. 1988)

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.