Fennell v. TX Education Agency

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-50374
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50374 Summary Calendar

PATRICIA L. FENNELL, also known as Patty L. Fennell; RAMESES SCHOOL OF SAN ANTONIO, TEXAS, as Represented by Patty Fennell,

Plaintiffs-Appellants,

versus

THE TEXAS EDUCATION AGENCY, Mike Moses, Pat Pringle, Linda Mora, Tom Canby, Jim Thompson, Nora Rainey, David Loeske, Rita Chase, Delia Blanco, Michael Richmond, Linda Mora, Judge Joan Allen & Mr. Brooks Flemister, all in their Official Capacities; THE TELECOMMUNICATIONS INFRASTRUCTURE BOARD,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CV-1044-FB -------------------- August 22, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Patricia L. Fennell (“Fennell”) and the Rameses School of San

Antonio, Texas (“Rameses”) appeal from the dismissal of their

action against the Texas Education Association (“TEA”), the Texas

Infrastructure Board (“TIF Board”), and twelve state officials

sued, with one exception, in both their official and individual

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50374 -2-

capacities. The action sought compensatory damages, punitive

damages, the restoration of a $40,000 grant, and the permanent

continuation of Rameses as a state charter school.

The district court dismissed all claims against the TEA and

the TIF Board for lack of subject matter jurisdiction based on the

defendants’ Eleventh Amendment immunity. “In the absence of

consent, a suit in which the State or one of its agencies or

departments is named as the defendant is proscribed by the Eleventh

Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 100 (1984). This bar to federal jurisdiction “applies

regardless of the relief sought.” Id. Appellants’ reliance on

Monell v. Department of Social Servs., 436 U.S. 658 (1978), is

misplaced. Monell concerned suit under 42 U.S.C. § 1983 against a

municipality, and in no way suggests that state agencies are

subject to suit in federal court.

The district court likewise dismissed all claims against the

state officers sued in their official capacities for lack of

subject matter jurisdiction. Suits against state officers in their

official capacities seeking the payment of moneys from the state

treasury for alleged compensatory damages, monetary damages, and

payments in the nature of equitable restitution are barred by the

Eleventh Amendment. See Clay v. Texas Women’s Univ., 728 F.2d 714,

715 (5th Cir. 1984). The Eleventh Amendment “may not be evaded by

suing state employees in their official capacity since such an

indirect pleading device remains in essence a claim upon the state

treasury.” Stem v. Ahearn, 908 F.2d 1, 3 (5th Cir. 1990).

Likewise, although a federal court may award prospective injunctive No. 00-50374 -3-

relief based on a violation of federal law, see Edelman v. Jordan,

415 U.S. 651, 666-67 (1974), federal courts are forbidden “from

exercising remedial authority in any form if the award of such

relief against a nonconsenting state is based on a state law

claim.” Lelsz v. Kavanagh, 807 F.2d 1243, 1252 (5th Cir. 1987).

The district court also ruled that plaintiffs’ claims under 42

U.S.C. §§ 1981 and 1983 against the state officers in their

individual capacities were barred by qualified immunity. In

qualified immunity cases, plaintiffs are held to a heightened

pleading requirement which demands “allegations of fact focusing

specifically on the conduct of the individual who caused the

plaintiffs' injury.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.

1999). Suits against governmental actors in their individual

capacities “must be pleaded with factual detail and particularity,

not mere conclusionary allegations.” Anderson v. Pasadena Indep.

Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999) (quotations and

citations omitted). Fennell and Rameses offer only conclusory

allegations and fail to show why the state officials are not

entitled to qualified immunity; accordingly, their claims under §§

1981 and 1983 were properly dismissed. See id.

Finally, the district court ruled that the complaint failed to

state a claim under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e(1)-(15). Fennell does not brief the issue of the

Title VII claim’s dismissal, and has thereby abandoned any

arguments she might conceivably assert. Even pro se litigants must

brief arguments in order to preserve them. See Yohey v. Collins,

985 F.2d 222, 225 (5th Cir. 1993). Arguments not adequately argued No. 00-50374 -4-

in the body of the brief are deemed abandoned on appeal. See id.

at 224-25.

The judgment of the district court is in all respects

AFFIRMED.