Yu v. TX Dept of Trans

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 2003
• Docket: 02-50957
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS April 18, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-50957 Summary Calendar

LI YU, Administrator of Estate of Wei Y. Wu,

Plaintiff-Appellant,

versus

STATE OF TEXAS DEPARTMENT OF TRANSPORTATION; CAROLINE A. HERRERA, In her Individual Capacity and her Official Capacity, Materials and Test Section, Construction Division, Texas Department of Transportation; KATHERINE L. HOLTZ, In her Individual Capacity and her Official Capacity, Materials and Test Section, Construction Division, Texas Department of Transportation,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas (A-01-CV-741-SS)

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Li Yu appeals, pro se, the dismissal of her action under the

Americans With Disabilities Act, Title VII of the 1964 Civil Rights

Act, 42 U.S.C. § 1983, 42 U.S.C. §1985 and Texas tort law. We

affirm for essentially the reasons stated by the district court in

its 7 January and 2 August 2002 orders.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Li Yu asserts, for the first time on appeal, default judgment

should have been entered against Defendants because they failed to

timely answer her complaint. No authority need be cited for the

proposition that our court will not consider contentions made for

the first time on appeal. In any event, the Texas Department of

Transportation (TxDOT) timely filed 12(b)(1) and (b)(6) motions and

Herrera and Holtz timely filed answers in response to the

complaint.

The district court properly held it lacked subject matter

jurisdiction because TxDOT and Herrera and Holtz, in their official

capacities, were immune from suit under the Eleventh Amendment.

E.g., Board of Trustees of the University of Alabama v. Garrett,

531 U.S. 356 (2001). While there may be subject matter

jurisdiction for the Title VII claim, the district court properly

dismissed that claim for failure to exhaust administrative

remedies. Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir.

1994).

Finally, the district court did not abuse its discretion in

dismissing, for failure to prosecute, the claims against Herrera

and Holtz, in their individual capacities. Salinas v. Sun Oil Co.,

819 F.2d 105, 106 (5th Cir. 1987).

AFFIRMED