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Schwarzer v. Shanklin ( 2021 )


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  • Case: 20-40083      Document: 00516035711         Page: 1    Date Filed: 09/29/2021
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
September 29, 2021
No. 20-40083                          Lyle W. Cayce
Summary Calendar                             Clerk
Mark Cliff Schwarzer,
Plaintiff—Appellant,
versus
Brody Shanklin; Robert French; Sherri Adelstein; Paul
Johnson; Sharon Keller,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:18-CV-434
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Mark Cliff Schwarzer, Texas prisoner # 1433741, filed a civil rights
complaint pursuant to
    42 U.S.C. § 1983
     against a district attorney, two state
judges, a clerk of court, and a court reporter related to their alleged actions
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40083      Document: 00516035711            Page: 2    Date Filed: 09/29/2021
No. 20-40083
and omissions in connection with his state criminal trial and state habeas
proceedings. The district court granted the defendants’ motions to dismiss
the complaint for lack of subject matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1). Schwarzer filed a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e), which the district
court denied. He now appeals both the dismissal of his complaint and the
denial of his Rule 59(e) motion.
We review de novo a dismissal for lack of subject matter jurisdiction
under Rule 12(b)(1). Ramming v. United States,
    281 F.3d 158
    , 161 (5th Cir.
2001). We review the denial of a Rule 59(e) motion for an abuse of discretion.
Dearmore v. City of Garland,
    519 F.3d 517
    , 520 (5th Cir. 2008).
Schwarzer first argues that, because the district court initially referred
his case to a magistrate judge (MJ), it was required to wait for the MJ to issue
a recommendation before the court could “resume jurisdiction” over his
case. His argument is without merit as the district court retains total control
and jurisdiction over cases referred to an MJ. See United States v. Raddatz,
    447 U.S. 667
    , 681-82 (1980).
In dismissing Schwarzer’s complaint, the district court concluded
that he failed to establish standing to bring suit for injunctive relief that would
require the defendants to take certain actions in the performance of their
duties. The court also determined that Schwarzer failed to show that the
defendants were not immune from suit under the Eleventh Amendment.
Schwarzer argues that his claims fall within the exception to Eleventh
Amendment immunity provided by Ex parte Young,
    209 U.S. 123
    , 155-56
(1908). Schwarzer does not meaningfully challenge the district court’s
determination that he lacked standing to seek injunctions directing the
defendants in the performance of their duties.              Accordingly, he has
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No. 20-40083
abandoned any challenge to the district court’s dismissal on that basis. See
Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
To the extent that Schwarzer challenges the district court’s dismissal
of his claims seeking litigation costs and “prospective declaratory relief,” he
lacked standing to bring those claims. See Steel Co. v. Citizens for a Better
Env’t,
    523 U.S. 83
    , 107 (1998); Stringer v. Whitley,
    942 F.3d 715
    , 720 (5th Cir.
2019). To the extent that he challenges the dismissal of his claim seeking an
injunction ordering the district attorney “to stop slandering” him, that claim
was barred by the Eleventh Amendment. See Verizon Md., Inc. v. Pub. Serv.
Comm’n of Md.,
    535 U.S. 635
    , 645 (2002); Paul v. Davis,
    424 U.S. 693
    , 697-
98 (1976). Further, because Schwarzer’s Rule 59(e) motion did not establish
a “manifest error of law or fact” or present newly discovered evidence, the
district court did not abuse its discretion in denying the motion. See Advocare
Int’l LP v. Horizon Laboratories, Inc.,
    524 F.3d 679
    , 691 (5th Cir. 2008)
(internal quotation marks and footnotes omitted).
We will not consider Schwarzer’s newly raised claim suggesting that
the district court ordered the clerk’s office not to docket a first amended
complaint and a class certification motion that Schwarzer alleges he mailed
to the district court. See Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342
(5th Cir. 1999).
AFFIRMED.
3