Summary
In Gilbert, the Fifth Circuit affirmed the district court's dismissal of a lawsuit against the director of the TMB because of Eleventh Amendment immunity.
Summary of this case from Allibone v. Tex. Med. Bd.Opinion
No. 07-11207, Conference Calendar.
December 10, 2008.
Jerry M. Gilbert, Iowa Park, TX, for Plaintiffs-Appellants.
Dolores Gilbert, Iowa Park, TX, pro se.
Mark Douglas White, Sprouse Shrader Smith, Amarillo, TX, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 7:07-CV-07.
Before DAVIS, WIENER, and PRADO, Circuit Judges.
Jerry and Dolores Gilbert appeal the dismissal for lack of subject matter jurisdiction of a complaint alleging that the defendants hampered the Gilberts' prosecution of an unsuccessful medical malpractice suit and subsequently failed to investigate, prosecute, and discipline the parties involved in that lawsuit. The district court determined that the complaint failed to allege a federal claim and that the claims were barred by the Eleventh Amendment. This determination is reviewed de novo. Musslewhite v. State Bar of Texas, 32 F.3d 942, 945 (5th Cir. 1994).
A case that does not present either federal question jurisdiction CIR diversity jurisdiction should be dismissed for lack of subject matter jurisdiction. See FED. R.Civ.P. 12(b)(1), (h)(3); Nauru Phosphate Royalties, Inc. v. Drago Daic hiterests, Inc., 138 F.3d 160, 163 n. 1 (5th Cir. 1998). Under the Eleventh Amendment, federal courts lack jurisdiction to entertain suits in law CIR equity against a non-consenting state, CIR a state agency, by its own citizens. See In re Soileau, 488 F.3d 302, 305 (5th Cir. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1220, 170 L.Ed.2d 60 (2008); Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 573 (5th Cir. 2002). Eleventh Amendment immunity applies equally to state agencies and state officials when sued in their official capacities because official capacity suits are construed as suits against the state. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). As all of the defendants in this case are entitled to Eleventh Amendment immunity, the district court's dismissal of the complaint is affirmed. Hafer, 502 U.S. at 25, 112 S.Ct. 358; see TEX. GOV'T CODE ANN. § 554.001 (2008). We find no merit in the Gilberts' suggestion that we exercise supplemental jurisdiction over this appeal.
AFFIRMED.