darren... v. City of New York

Case: 17-20391 Document: 00514469694 Page: 1 Date Filed: 05/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 11, 2018
No. 17-20391
Summary Calendar Lyle W. Cayce
Clerk
DARREN . . . ,
Plaintiff-Appellant
v.
CITY OF NEW YORK; STEVEN SCHWARTZ, City of New York’s
Registrar/trustee; DARREN JAMES MICHAELS, City of New York’s
Registered organization identified by certificate number 156-60-356317; DOES
1 THROUGH 5,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-410
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
A pro se individual, identified as “darren . . .”, filed a petition in the
district court seeking declaratory and injunctive relief. Essentially, the relief
sought was a name change to be reflected on a New York issued birth
certificate. The district court dismissed the petition with prejudice, finding
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-20391 Document: 00514469694 Page: 2 Date Filed: 05/11/2018
No. 17-20391
that it lacked subject-matter jurisdiction. The court alternatively stated that
even if it had jurisdiction, it would decline to exercise such jurisdiction as it
lacked the authority to order the relief sought by the plaintiff. This appeal
followed.
We review de novo a district court’s dismissal for lack of subject-matter
jurisdiction. Musslewhite v. State Bar of Tex., 32 F.3d 942, 945 (5th Cir. 1994).
The district court determined that the plaintiff failed to show that the New
York defendants waived immunity from suit. On appeal, the plaintiff asserts
that the City of New York is a privately held company and that waiver is not
necessary. This assertion is fantastical, conclusory, and not supported by any
fact. He does not show that the district court erred in finding that it lacked
subject-matter jurisdiction over the New York defendants. See id.
The plaintiff does not address the district court’s conclusion that his
birth certificate number was not a proper party to a suit. Therefore, any
challenge to this determination is deemed abandoned. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th Cir. 1993).
We reject any suggestion that jurisdiction arose under the Declaratory
Judgment Act. See 28 U.S.C. §§ 2201–02. That Act does not provide an
independent basis for jurisdiction; it permits declaratory relief only if there is
another basis for jurisdiction. Simi Inv. Co. v. Harris Cnty., Tex., 236 F.3d 240,
247 (5th Cir. 2000). The plaintiff identifies no other valid basis for jurisdiction,
and the district court did not err in dismissing the petition. See Earnest v.
Lowentritt, 690 F.2d 1198, 1203 (5th Cir. 1982). However, the judgment should
have reflected a dismissal without prejudice.
Accordingly, the district court’s judgment dismissing the petition is
MODIFIED to be without prejudice and is AFFIRMED as modified. The
motion for summary disposition is DENIED.
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