IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30995 _____________________
NEW ORLEANS TOWING ASSOCIATION, INC; DUCROS AUTOMOTIVE, INC; D&G BODY SHOP INC; DON HINGLE’S BODY SHOP, INC; STEVENS BODY & FENDER, INC
Plaintiffs - Appellees
v.
M J FOSTER, JR, Individually and in his official capacity as Governor of the State of Louisiana; RICHARD P IEYOUB, Individually and in his official capacity as Attorney General of the State of Louisiana; W R WHITTINGTON, Colonel, Individually and in his official capacity as Deputy Secretary and Superintendent of the Department of Public Safety and Corrections, Office of State Police
Defendants - Appellants
_________________________________________________________________
Appeal from the United States District Court for the Eastern District of Louisiana _________________________________________________________________ February 6, 2001
Before KING, Chief Judge, WIENER, Circuit Judge, and LYNN,* District Judge.
KING, Chief Judge:**
* District Judge of the Northern District of Texas, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Defendants-Appellants appeal the district court’s judgment
denying their motion to dismiss Plaintiffs-Appellees’ state law
damage claims. The district court concluded that the Eleventh
Amendment did not shield Defendants-Appellants from the
Plaintiffs-Appellees’ claims for damages insofar as the suit was
against them in their individual capacities. For the following
reasons, we AFFIRM the district court’s judgment and REMAND for
further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 17, 1999, Plaintiffs-Appellees the New Orleans
Towing Association, Inc.; Ducros Automotive, Inc.; D & G Body
Shop, Inc.; Don Hingle’s Body Shop, Inc.; and Stevens Body &
Fender, Inc. (collectively the “Plaintiffs”) sued Defendants-
Appellants M.J. Foster, Jr., Louisiana’s Governor; Richard
Ieyoub, Louisiana’s Attorney General; and W.R. Whittington,
Deputy Secretary and Superintendent of Louisiana’s Department of
Public Safety and Corrections (collectively the “Defendants”), in
both their official and individual capacities. The Plaintiffs,
companies in the towing business and an association of tow truck
operators, claim, inter alia, that by enforcing The Louisiana
Towing and Storage Act, LA. REV. STAT. ANN. §§ 32:1711-32:1750
(West 2000) (the “Act”), against the Plaintiffs’ businesses,
Defendants have violated and continue to violate the First
47.5.4.
2 Amendment, Commerce Clause, Due Process Clause, and Equal
Protection Clause of the U.S. Constitution and certain equivalent
sections of the Louisiana Constitution. More specifically, the
Plaintiffs allege that they and their members have been
unconstitutionally ticketed and fined by the Louisiana Department
of Public Safety and Corrections (the “Department”) for
violations of the Act. The Plaintiffs argue that the Act is
preempted by federal law, that the Act is unconstitutional, and
that the Defendants exceeded their statutory authority in fining
them. The Plaintiffs sought a declaratory judgment to this
effect, an injunction prohibiting the Defendants from enforcing
the Act, and money damages.
On May 28, 1999, the Defendants moved to dismiss the
Plaintiffs’ complaint, asserting that the Eleventh Amendment
barred the claims for injunctive, declaratory, and monetary
relief that were based upon Louisiana law. The district court
dismissed the suit as to the state law claims for declaratory and
injunctive relief, but allowed the state law claims for monetary
relief against the Defendants in their individual capacities to
continue. The district court concluded that the Eleventh
Amendment precluded claims for injunctive, declaratory, and
monetary relief against the Defendants in their official
capacities, to the extent that they were based on state law.
However, the district court found that “[t]he Eleventh Amendment
does not prevent the plaintiffs from seeking to recover against
3 the defendants personally” if the Plaintiffs are attempting to
recover “money damages directly from the [Defendants’] own
pockets.”
On appeal, the issue is simply the potential individual-
capacity liability of the Defendants for damages — liability
presumably based upon an unconstitutional pattern of fining the
Plaintiffs. At this stage of the proceedings, without any
factual development, we are only called upon to resolve the
narrow legal question whether the district court properly
declined to dismiss the Plaintiffs’ state law claims for damages
against the Defendants in their individual capacities. On the
bare complaint, we are even reluctant to pass judgment on what
appears to be a rather suspect damages action directed against
state officials. We make clear that we are intimating no
position on the merits of the allegations because there is no
evidence before us at this early stage in the proceedings.1
II. STANDARD OF REVIEW
The denial of a motion to dismiss, which raises a colorable
claim of immunity, is appealable under the collateral order
1 We note that in its August 25, 1999 order on the Defendants’ motion to dismiss, the district court ordered that the Plaintiffs file a Rule 7(a) reply tailored to the Defendants’ defense of qualified immunity. The Plaintiffs filed such a reply on September 10, 1999. Because the issue of qualified immunity was not raised on appeal, we leave it to the district court to determine if the Plaintiffs’ Rule 7(a) reply pleads sufficient facts to hold the state officials liable for damages.
4 exception to the finality requirement of 28 U.S.C. § 1291 (1993).
See Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993); see
also Champagne v. Jefferson Parish Sheriff’s Office, 188 F.3d
312, 313 (5th Cir. 1999). We review de novo a district court’s
denial of a Rule 12(b)(6) motion to dismiss on immunity grounds.
See Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 285 (5th Cir.),
cert. denied, 120 S. Ct. 2007 (2000); Malina, 994 F.2d at 1124.
A motion to dismiss under Rule 12(b)(6) “‘is viewed with
disfavor and is rarely granted.’” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quoting Kaiser
Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050
(5th Cir. 1982)). The complaint must be liberally construed in
favor of the Plaintiffs, and all facts pleaded in the complaint
must be taken as true. See id.; see also Campbell v. Wells Fargo
Bank, 781 F.2d 440, 442 (5th Cir. 1986).
Finally, “[t]he issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims. Indeed it may appear on the face
of the pleadings that a recovery is very remote and unlikely but
that is not the test.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457
U.S. 800 (1982). Instead, “[t]he district court may not dismiss
a complaint under rule 12(b)(6) ‘unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his
5 claim which would entitle him to relief.’” Collins, 224 F.3d at
498 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
III. SUITS AGAINST STATE OFFICIALS IN THEIR
INDIVIDUAL CAPACITIES ARE NOT BARRED BY THE ELEVENTH AMENDMENT
In deciding the narrow question whether the Plaintiffs may
bring an individual-capacity suit against the Defendants for
damages arising under state law, we first lay out the analytical
framework in which we address the Defendants’ Eleventh Amendment
arguments. We conclude, with no judgment as to the merits of the
underlying action, that the Defendants may be sued in their
individual capacities for damages.
A. Individual-Capacity Actions Versus
Official-Capacity Actions
The Supreme Court has interpreted the Eleventh Amendment to
provide that “‘an unconsenting State is immune from suits brought
in federal courts by her own citizens as well as by citizens of
another state.’” Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984) (quoting Employees v. Dep’t of Pub. Health &
Welfare, 411 U.S. 279, 280 (1973)). This immunity also extends
to state officials who are sued in their official capacities
because such a suit is actually one against the state itself.
See id. at 117.
We recognize that “[t]he performance of official duties
creates two potential liabilities, individual-capacity liability
6 for the person and official-capacity liability for the [state].”
Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478,
484 (5th Cir. 2000). Suits brought against a state official in
his official capacity “generally represent only another way of
pleading an action against an entity of which an officer is an
agent.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (internal
quotations omitted) (quoting Kentucky v. Graham, 473 U.S. 159,
165 (1985)). “Personal-capacity suits, on the other hand, seek
to impose individual liability upon a government officer for
actions taken under color of state law.” Id. In the former case
of liability, the Supreme Court has held that the Eleventh
Amendment bars state law claims against state officials for
injunctive or monetary relief. See Pennhurst, 465 U.S. at 117.
However, it is well established in this circuit that a suit
against a state officer in his or her individual capacity for
money damages is not a suit against the state for purposes of
Eleventh Amendment immunity. See Wilson v. UT Health Ctr., 973
F.2d 1263, 1271 (5th Cir. 1992) (“Pennhurst and the Eleventh
Amendment do not deprive federal courts of jurisdiction over
state law claims against state officials strictly in their
individual capacities.”), cert. denied, 507 U.S. 1004 (1993);
Hays County Guardian v. Supple, 969 F.2d 111, 125 (5th Cir. 1992)
(“The Eleventh Amendment does not bar state-law actions against
state officials in their individual capacity.”), cert. denied,
506 U.S. 1087 (1993); Crane v. Texas, 759 F.2d 412, 428 n.17 (5th
7 Cir.) (“The Eleventh Amendment is obviously no bar to actions for
damages against officials sued in their individual
capacities[.]”), cert. denied, 474 U.S. 1020 (1985); see also
Hafer, 502 U.S. at 30-31.
When a suit is brought against only state officials,
questions arise regarding whether the suit is actually one
against the state. See Pennhurst, 465 U.S. at 101. In this
regard, the general rule is that “[t]he Eleventh Amendment bars a
suit against state officials when ‘the state is the real,
substantial party in interest.’” Id. (quoting Ford Motor Co. v.
Dep’t of Treasury, 323 U.S. 459, 464 (1945)); Ford Motor Co. v.
Dep’t of Treasury, 323 U.S. 459, 464 (1945) (“And when the action
is in essence one for the recovery of money from the state, the
state is the real, substantial party in interest and is entitled
to invoke its sovereign immunity from suit even though individual
officials are nominal defendants.”). Whether a state is the real
party in interest depends upon the nature of the relief sought.
A suit in which relief is sought nominally against a state
official “‘is in fact against the sovereign if the decree would
operate against the latter.’” Pennhurst, 465 U.S. at 101
(quoting Hawaii v. Gordon, 373 U.S. 57, 58 (1963)); see also
Dugan v. Rank, 372 U.S. 609, 620 (1963) (“The general rule is
that a suit is against the sovereign if the judgment sought would
expend itself on the public treasury or domain, or interfere with
the public administration, or if the effect of the judgment would
8 be to restrain the Government from acting, or to compel it to
act.” (internal quotations omitted)).
In the instant case, the Plaintiffs argue that the Eleventh
Amendment is no bar to their state law claims against the
Defendants because they are suing the Defendants in their
individual capacities. The Defendants contend, however, that
because the state law damage claims against them arise out of
their actions in “‘enforcing’ state law” and, thus, while they
were “carrying out” their official responsibilities, Pennhurst
State School & Hospital v. Halderman, 465 U.S. 89 (1984),
dictates that they are protected by the Eleventh Amendment. As a
legal matter, without regard to the underlying merits of the
Plaintiffs’ damages action, we disagree with the Defendants’
conclusion.
Pennhurst was a suit brought by residents of the Pennhurst
State School and Hospital in which the residents sought both
injunctive and monetary relief from the state officials in their
official capacities for claimed violations of state and federal
law. The district court granted the residents injunctive relief,
which the court of appeals affirmed. The Supreme Court reversed.
Concluding that “[a] federal court’s grant of relief against
state officials on the basis of state law, whether prospective or
retroactive, does not vindicate the supreme authority of federal
law,” Pennhurst, 465 U.S. at 106, the Supreme Court held that “a
federal suit against state officials on the basis of state law
9 contravenes the Eleventh Amendment when . . . the relief sought
and ordered has an impact directly on the State itself.” Id. at
117. Furthermore, the Court stated that “a claim that state
officials violated state law in carrying out their official
responsibilities is a claim against the State that is protected
by the Eleventh Amendment.” Id. at 121. Consequently, the
Supreme Court remanded the case to the court of appeals to
determine to what extent the district court relied on federal law
in determining the need for an injunction.
This court has held that “Pennhurst . . . [does] not deprive
federal courts of jurisdiction over state law claims against
state officials strictly in their individual capacities.”
Wilson, 973 F.2d at 1271. Seizing upon a portion of the above-
quoted language in Pennhurst, however, the Defendants contend
that the relevant inquiry in a case such as this is whether the
officials were alleged to have violated state law in “carrying
out their official responsibilities.” If so, the Defendants
maintain that they are protected from suit by the Eleventh
Amendment because, at the time of the alleged injury to the
Plaintiffs, they were enforcing state law.
Although not specifically addressed in this circuit, the
Defendants’ argument has been raised and rejected by the Supreme
Court and by other courts of appeals. See Hafer, 502 U.S. at 27-
28 (“The requirement of action under color of state law means
that Hafer may be liable for discharging respondents precisely
10 because of her authority as auditor general. We cannot accept
the novel proposition that this same official authority insulates
Hafer from suit.”). See also, e.g., Hardin v. Straub, 954 F.2d
1193, 1200 (6th Cir. 1992) (“Straub seems to construe this
holding as meaning that if his actions were taken as part of his
job, then they were taken in his official capacity and that
Eleventh Amendment immunity applies. . . . In light of Hafer,
Straub’s statement of law is incorrect.”). The Supreme Court
clarified in Hafer v. Melo that “the phrase ‘acting in their
official capacities’ is best understood as a reference to the
capacity in which the state officer is sued, not the capacity in
which the officer inflicts the alleged injury.” 502 U.S. at 26.
Therefore, we conclude that any confusion existing after
Pennhurst, as illustrated in Defendants’ argument, has been
resolved by the Hafer decision.2
2 We recognize that in Hughes v. Savell, a panel of this court relied on Pennhurst to express that “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State.” 902 F.2d 376, 378 (5th Cir. 1990). The Defendants rely on Hughes to support its argument that Pennhurst “requires an analysis of how the state official acted when causing injury to the plaintiff.” We conclude, however, that we must read this language in Hughes in the context of the facts of that particular case. In Hughes, a state prisoner sued a security officer and the warden of the Louisiana State Penitentiary, alleging constitutional violations under 42 U.S.C. § 1983 and also pendent state law claims for negligence stemming from the officer’s failure to protect the plaintiff from an attack by another prisoner. The plaintiff argued to this court that he was suing the officials in their individual capacities, although he had failed to specify such in his original complaint. See id. at 378-79. The court recognized this argument, but appeared to
11 We are not inclined, however, to interpret Hafer’s language
to mean that by merely pleading a suit against state officials in
their individual capacities in the caption of the complaint, the
suit is automatically transformed into one against the state
officials personally. Indeed, “[t]he real interests served by
the Eleventh Amendment are not to be sacrificed to elementary
mechanics of captions and pleadings.” Idaho v. Coeur d’Alene
Tribe, 521 U.S. 261, 270 (1997); see also Hafer, 502 U.S. at 27
conclude that it was irrelevant because “Louisiana law places the onus on the state to protect one prisoner from attacks by another prisoner” and because Louisiana case law “impute[s] the employee’s negligence to the state for purposes of assigning liability.” Id. at 379 (referencing Louisiana law that “‘the state is . . . liable for its [prison] employee’s (sic) failure to use reasonable care’” and that “‘the blame is not so much personal as due to the undermanned and harassed conditions in which these employees must perform their most important duties’” (alterations in original) (quoting Breaux v. Louisiana, 326 So. 2d 481, 482, 484 (La. 1976))). The court also noted that it could find “no Louisiana case which holds a prison guard individually liable for such an attack.” Id. The court found that because the officer was “serving in his official capacity” when the incident occurred, “Louisiana tort law places the duty to safeguard Hughes on the State of Louisiana and designates Savell as Louisiana’s agent.” Id. Therefore, the court concluded that the only avenue for Hughes to sue the official was as an agent of the state, i.e., in the state official’s official capacity. See id. As such, Pennhurst barred suit on the plaintiff’s state law claims because the suit was against the state official in his official capacity. See id. Applying Hughes, the question in this case is whether under Louisiana law, the liability of the Defendants will be imputed to the state of Louisiana. See Reyes v. Sazan, 168 F.3d 158, 162 (5th Cir. 1999). We specifically asked the parties to be prepared to address this question at oral argument. The Defendants conceded that there is no Louisiana law imputing liability on the state or that would prevent the state officials from being sued in their individual capacities, and our research failed to reveal any such law. Accordingly, Hughes does not control our analysis.
12 (“[T]he distinction between official-capacity suits and personal-
capacity suits is more than ‘a mere pleading device.’”).
Instead, as we stated above, the relevant question in the state
law claim context is whether the relief sought operates against
the state. See Pennhurst, 465 U.S. at 101-02; see also Scheuer,
416 U.S. at 237.
B. The Current Suit
In the instant case, the district court denied the
Defendants’ motion to dismiss to the extent that the Plaintiffs
claimed damages against the Defendants in their individual
capacities. The district court properly limited the relief for
the alleged state law violations to monetary relief to be paid
from the Defendants’ own pockets. This relief does not operate
against the state. See Kentucky v. Graham, 473 U.S. 159, 167-68
(1985) (“A victory in a personal-capacity action is a victory
against the individual defendant, rather than against the entity
that employs him.”). Furthermore, we agree with the Defendants’
concession that the simple fact that Louisiana law provides for
indemnification of the state officials does not convert the suit
into one against the state. See Hudson v. City of New Orleans,
174 F.3d 677, 687 n.7 (5th Cir.) (“The Eleventh Amendment does
not come into play in personal capacity suits, and the existence
of an indemnification statute promising to pay judgments when an
officer is sued in his individual capacity does not extend the
Eleventh Amendment’s protections around the officer.” (citation
13 omitted)); cert. denied, 528 U.S. 1004 (1999); Flowers v. Phelps,
964 F.2d 400, 401 n.2 (5th Cir. 1992) (“The existence of a state
immunity statute does not render these individuals immune from
federal suit.”).
Considering the pleadings in the light most favorable to the
Plaintiffs, we conclude that the Plaintiffs have pleaded facts
demonstrating that they are seeking to impose individual and
personal liability on the named Defendants, although they have
yet to establish these claims by proof. Moreover, in their
motion to dismiss, the Defendants offer up the defense of
qualified immunity, a defense that is intended to protect the
Defendants from personal liability. See Hafer, 473 U.S. at 166-
67 (“When it comes to defenses to liability, an official in a
personal-capacity action may, depending on his position, be able
to assert personal immunity defenses, such as objectively
reasonable reliance on existing law. The only immunities that
can be claimed in an official-capacity action are forms of
sovereign immunity, . . . such as the Eleventh Amendment.”
(citations omitted)). We hold that, on this narrow question of
law, the district court did not err in refusing to grant the
Defendants’ motion to dismiss insofar as it related to the
Plaintiffs’ state law claims against the Defendants in their
individual capacities.
IV. CONCLUSION
14 For the foregoing reasons, we AFFIRM the judgment of the
district court and REMAND for further proceedings consistent with
this opinion.