Hymes v. State of Mississippi ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2008
No. 06-60953
Summary Calendar Charles R. Fulbruge III
Clerk
LARRY EDWARD HYMES
Plaintiff-Appellant
v.
STATE OF MISSISSIPPI, and its Legislature, Agencies, and Tribunals;
GEORGE KELLY; GEORGE DUNBAR PREWITT, JR; WILLARD MCILWAIN
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:05-CV-181
Before HIGGINBOTHAM, CLEMENT and HAYNES, Circuit Judges
PER CURIAM:*
Larry Edward Hymes appeals from the district court’s grant of the state
defendants-appellees’ motion to dismiss his pro se civil lawsuit for lack of
subject-matter jurisdiction, pursuant to FED. R. CIV. P. 12(b)(1). We review de
novo the district court’s grant of a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction. Musslewhite v. State Bar of Tex., 32 F.3d 942, 945
(5th Cir. 1994).
*
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should not be published and is not precedent except under the limited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. 06-60953
Hymes argues that the district court did not lack subject matter
jurisdiction because Mississippi has waived its sovereign immunity in cases
raising claims such as his. However, the cases he has cited address only the
State’s waiver of immunity in state court, not in federal court. The district court
did not err in determining that Mississippi and its agencies were immune from
suit in federal court. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984); Voisin’s Oyster House, Inc. v. Guidry, 799 F.2d 183, 185 (5th Cir.
1986).
Hymes argues that he met the Ex Parte Young1 exception to sovereign
immunity because he sued the state officials who occupy the state tribunals
(courts) to enjoin their enforcement of a statute that is unconstitutional as
applied. Although Hymes sought to amend his complaint to name the individual
state officials who occupy the state courts, the magistrate judge denied his
motion to amend. Thus, he does not meet the Ex Parte Young exception. See
Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
Hymes challenges the denial of his motion to amend his complaint. The
magistrate judge denied the motion to amend and, although Hymes filed a
timely motion to reconsider that ruling, the district court did not address the
motion to reconsider. Accordingly, we lack jurisdiction to review the denial of
the motion to amend and dismiss this portion of the appeal. See Alpine View Co.
Ltd. v. Atlas Copco AB, 205 F.3d 208, 220 & n.8 (5th Cir. 2000). In any event,
the district court has broad discretion to enforce the integrity of the pretrial
scheduling order, and the deadlines for amendment and discovery had expired
when the magistrate judge ruled on the motion to amend. See Turnage v.
General Elec. Co., 953 F.2d 206, 208 (5th Cir. 1992).
Because the district court did not err in dismissing the complaint based on
Eleventh Amendment sovereign immunity, we do not address the dismissal on
1
Ex parte Young, 209 U.S. 123, 148-49 (1908).
2
No. 06-60953
Rooker/Feldman2 grounds. Hymes’s various other complaints about the district
court’s handling of his case, including claims that the district court misconstrued
his claims and misstated the procedural and legal history of his claims, do not
call into doubt the district court’s conclusion regarding the threshold issue of
subject matter jurisdiction. See Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 n.7
(5th Cir. 1992).
The judgment of the district court is AFFIRMED in part, and the appeal
is DISMISSED in part.
2
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).
3