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Gilbert v. Perry , 302 F. App'x 320 ( 2008 )


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  •           IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 07-11207
Conference Calendar             Charles R. Fulbruge III
Clerk
JERRY M GILBERT; DOLORES GILBERT
Plaintiffs-Appellants
v.
RICK PERRY, Governor of Texas; MARTHA S DICKIE, President of the State
Bar of Texas; DONALD W PATRICK, Executive Director of the Texas Medical
Board; JOSEPH B MORRIS, Chair for The State Commission on Judicial
Conduct
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.
PER CURIAM:*
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
*
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should not be published and is not precedent except under the limited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. 07-11207
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 or
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
Interests, Inc.,
    138 F.3d 160
    , 163 n.1 (5th Cir. 1998). Under the Eleventh
Amendment, federal courts lack jurisdiction to entertain suits in law or equity
against a non-consenting state, or a state agency, by its own citizens. See In re
Soileau,
    488 F.3d 302
    , 305 (5th Cir. 2007), cert. denied,
    128 S. Ct. 1220 
    (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 (1991);
Will v. Mich. Dep't of State Police,
    491 U.S. 58
    , 71 (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
    ; 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.
2