Mildred Jones v. Robin Giarrusso , 517 F. App'x 246 ( 2013 )

Case: 12-30927 Document: 00512183159 Page: 1 Date Filed: 03/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 21, 2013
No. 12-30927 Lyle W. Cayce
Summary Calendar Clerk
MILDRED JONES,
Plaintiff-Appellant
v.
ROBIN GIARRUSSO, Orleans Parish Judge; LOUISIANA STATE,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-494
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mildred Jones filed suit claiming due process violations by Louisiana State
court judge Robin Giarrusso and by the State of Louisiana. The district court
dismissed because it lacked subject matter jurisdiction. We AFFIRM.
The federal complaint was filed in February 2012, three years after Jones
brought suit in Louisiana state court. Current defendant Robin Giarrusso was
the state court judge. Judge Giarrusso admitted the plaintiff’s attorney-son,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-30927
Ricky Nelson Jones, pro hac vice in order to represent his mother. After the
defendants in that case demonstrated that Jones’s son was a necessary witness,
Judge Giarrusso applied state Bar rules to hold that the son could no longer be
the attorney in the case. Admission pro hac vice was revoked. Jones took an
interlocutory appeal. A Louisiana Court of Appeal upheld the revocation of the
attorney’s admission and affirmed the denial of Jones’s motion for summary
judgment. Jones v. Next Generation Homes, LLC, 76 So. 3d 1238 (La. App. 4th
Cir. 2011). We are unaware of any further proceedings in the state trial court.
Jones brought the current suit in the U.S. District Court for the Eastern
District of Louisiana, alleging that removing her attorney was a due process
violation. She sought to have her son reinstated as her attorney and the state
court action stayed pending resolution of the federal court suit, or alternatively,
the removal to federal court of the state court suit she filed in 2009.
This court reviews a district court’s dismissal for lack of subject matter
jurisdiction de novo. Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th Cir.
2012). The Eleventh Amendment bars citizens’ suits against a State in federal
court. Cozzo v. Tangipahoa Parish Council, 279 F.3d 273, 280 (5th Cir. 2002).
The State of Louisiana has not waived immunity. LA. REV. STAT. ANN. §
13:5106(A) (2010). Congress has not abrogated it. See Cozzo, 279 F.3d at 281.
The exception that allows suits against state officials for prospective injunctive
relief does not apply, as Jones seeks retroactive relief. See Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 105-06 (1984) (citing Ex Parte Young, 209
U.S. 123 (1908)). Therefore, we do not have jurisdiction to hear the suit against
Louisiana because the State retains sovereign immunity. Id.To the extent that Jones seeks an injunction of state court proceedings,
that relief is barred by the Anti-Injunction Act. 28 U.S.C. § 2283. As to removal
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No. 12-30927
of her state court suit to federal court, Jones as plaintiff has no right to remove
her own case. See 28 U.S.C. § 1441(a).
The suit against Judge Giarrusso in her official capacity is also barred as
effectively a suit against the State. Will v. Mich. Dep’t of State Police, 491 U.S.
58, 71 (1989).
AFFIRMED.
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