Is plaintiff entitled to amend his complaint to include a Fifth Amendment claim?

Finally, we note that in the proceedings below the district judge had expressed a willingness to allow plaintiff to amend his complaint to include a Fifth Amendment claim. Although the plaintiff's complaint was not so amended, plaintiff did assert a due process claim in a pre-trial memorandum, as well as in answers to interrogatories. In view of recent developments in this area of the law, See, e. g., Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and the district judge's prior expression of willingness to permit such an amendment, plaintiff should be entitled to amend his complaint in the proceedings on remand to include a Fifth Amendment claim if he so desires.

Judgment reversed and cause remanded to the district court for further proceedings.