Anderson v. Abbott , 83 F. App'x 594 ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                December 9, 2003
    Charles R. Fulbruge III
    Clerk
    No. 03-10946
    Conference Calendar
    RONNIE ANDERSON,
    Plaintiff-Appellant,
    versus
    GREG ABBOTT, Attorney General of Texas,
    Child Support Division,
    Defendant-Appellee.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:03-CV-892-A
    --------------------
    Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Ronnie Anderson has appealed the district court’s order
    dismissing his complaint against Greg Abbott, Attorney General of
    Texas, Child Support Division (the “Attorney General”), asserting
    that too much of his income had been withheld for child support
    payments.   The district court determined that it did not have
    jurisdiction over the action, as the Attorney General is immune
    from suit in federal court under the Eleventh Amendment.
    *
    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    this opinion should not be published and is not precedent except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. 03-10946
    - 2 -
    “[A]n unconsenting State is immune from suits brought in
    federal courts by her own citizens . . . .”     See Pennhurst State
    Sch. & Hosp. v. Halderman, 
    465 U.S. 89
    , 100 (1984) (internal
    quotation marks omitted).   “The Eleventh Amendment bars a suit
    against state officials when the state is the real, substantial
    party in interest.”   
    Id. at 101
     (internal quotation marks
    omitted).   “Thus, the general rule is that relief sought
    nominally against an officer is in fact against the sovereign if
    the decree would operate against the latter.”     
    Id.
     (internal
    quotation marks and brackets omitted).     “And, as when the State
    itself is named as the defendant, a suit against state officials
    that is in fact a suit against a State is barred regardless of
    whether it seeks damages or injunctive relief.”     
    Id.
     at 101–02.
    An exception is provided for suits against state officials
    alleging violations of federal law, in which case “the federal
    court may award an injunction that governs the official’s future
    conduct, but not one that awards retroactive monetary relief.”
    
    Id.
     at 102–03 (discussing Ex parte Young, 
    209 U.S. 123
    , 160
    (1908), and Edelman v. Jordan, 
    415 U.S. 651
    , 666–67 (1974)).
    Anderson contends that his complaint falls within the Ex parte
    Young exception.
    Anderson contends for the first time on appeal that his
    action is grounded on a violation of the Personal Responsibility
    and Work Opportunity Reconciliation Act of 1996, which amended
    Title IV-D of the Social Security Act.     Anderson does not state
    No. 03-10946
    - 3 -
    specifically which provision of the Social Security Act was
    violated by the Attorney General or why he believes that he has a
    private right of action under the Social Security Act.     See
    Blessing v. Freestone, 
    520 U.S. 329
    , 340–48 (1997).
    Anderson contends that his right to due process was violated
    and that he is seeking prospective injunctive relief only.
    Anderson contends also that the Attorney General violated his
    rights under the Eighth Amendment prohibition against excessive
    fines.   Although Anderson contends that he is suing the Attorney
    General in his individual capacity, he does not contend that the
    Attorney General was personally involved in a constitutional
    violation.    Anderson contends only that he asked a child support
    officer (not a defendant) to reduce the amount of his child
    support payment, but that his request was refused notwithstanding
    the fact that the case officer had the discretion under state law
    to extend the payment terms on hardship grounds.   Anderson has
    not alleged facts showing that the case officer’s refusal was
    pursuant to an unconstitutional state policy implemented by the
    Attorney General.    See Thompkins v. Belt, 
    828 F.2d 298
    , 303 (5th
    Cir. 1987).
    Because the appeal is without arguable merit, it is
    dismissed as frivolous.    See Howard v. King, 
    707 F.2d 215
    , 219-20
    (5th Cir. 1983); 5TH CIR. R. 42.2.
    APPEAL DISMISSED.