Reiter v. Treacy ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51090
Summary Calendar
WAYNE J. REITER,
Plaintiff-Appellant,
versus
WILLIAM TREACY; K. MICHAEL CONAWAY;
TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
(A-99-CV-224-JN)
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June 7, 2000
Before POLITZ, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Wayne J. Reiter appeals from the district
court’s dismissal of his claims with prejudice, rather than without
prejudice. He also asserts on appeal that the district court erred
in not granting his motion for extensions of time within which to
conduct discovery and to respond to Defendants-Appellees Treacy and
Conaway’s motion for summary judgment. We find no reversible error
in the court’s failure to grant Reiter a 60-day extension of time
*
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that this opinion should not be published and is not precedent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.
to conduct discovery; and we modify the district court’s judgment
and affirm it as modified.
Reiter argues that the district court’s dismissal of his
claims with prejudice was error, insisting that claims barred by
Eleventh Amendment immunity may be dismissed only without
prejudice. "Because sovereign immunity deprives the court of
jurisdiction, the claims barred by sovereign immunity can be
dismissed only under Rule 12(b)(1) and not with prejudice."
Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (1996). Reiter is
therefore correct that the district court erred in dismissing his
claims against the Board with prejudice. As the dismissal itself
has not been challenged, we modify the district court’s judgment to
be without prejudice, and affirm it as modified.
Reiter also argues that the district court’s dismissal with
prejudice of his claims against Treacy and Conaway was error to the
extent that the district court dismissed the claims against the
individual defendants in their official capacities. The district
court expressly stated, however, that it perceived no claims
against those individuals in their official capacities and was
addressing Reiter’s claims against Treacy and Conaway only in their
individual capacities and dismissing them on grounds of qualified
immunity. As Reiter has neither challenged the dismissal of his
individual capacity claims nor contended that the district court
erred in construing his complaint, we discern no error and consider
this issue no further. See United States v. Brace, 145 F.3d 247,
255 (5th Cir.)(en banc), cert. denied, 525 U.S. 973 (1998). The
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district court’s dismissal with prejudice of the claims against
Treacy and Conaway in their individual capacities for qualified
immunity is affirmed, and Reiter has failed to brief the issue of
these individuals’ official capacities, so such claims are waived.
Moreover, to the extent that his claims against the individuals
could have been deemed to be asserted against them in their
official capacities, such claims are construed to be asserted
against the state and would have been subject to the same Eleventh
Amendment dismissal without prejudice as to the Board if Reiter had
preserved such dismissals on appeal —— which, again, he has not.
Finally, Reiter argues that the district court erred by not
granting him a 60-day extension of time in which to respond to
Treacy and Conaway’s motion for summary judgment. A district
court’s denial of discovery is reviewed for abuse of discretion.
Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291 (5th Cir. 1994). Here,
the district court did not abuse its discretion in denying Reiter
more time for discovery. Reiter’s motion for an extension of time
expressly sought only 14 days to respond to the motion for summary
judgment, which the district court granted. The court did not
specifically mention the 60 days sought for discovery, but we find
no abuse of discretion in the court’s failure to extend the time
further for Reiter to conduct discovery.
The district court’s decision dismissing with prejudice
Reiter’s claims against the Texas State Board of Public Accountancy
is modified to be without prejudice and affirmed as thus modified.
The court’s dismissal with prejudice of Reiter’s claims against
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William Treacy and K. Michael Conaway in their individual
capacities on grounds of qualified immunity is affirmed, as is the
court’s dismissal of those defendants in their official capacities,
for Reiter’s failure to preserve that issue on appeal.
DISMISSAL AFFIRMED, but without prejudice as to the Texas State
Board of Public Accountancy.
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