“A party forfeits an argument by failing to raise it in the first instance in the district court—thus raising it for the first time on appeal—or by failing to adequately brief the argument on appeal.”
How later courts described this case
- “A party forfeits an argument by failing to raise it in the first instance in the district court—thus raising it for the first time on appeal—or by failing to adequately brief the argument on appeal.”
Written by the judges who cited it.
The opinion
Case: 25-30021 Document: 78-1 Page: 1 Date Filed: 11/05/2025
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 25-30021
November 5, 2025
____________
Lyle W. Cayce
Stephen Paul Preziosi, Clerk
Plaintiff—Appellant,
versus
Louisiana Department of Children and Family Services;
Terri P. Ricks; Gary E. Franklin; Christian Merrit;
Bridget Depland Grant,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:23-CV-1097
______________________________
Before Davis, Stewart, and Ramirez, Circuit Judges.
Per Curiam: *
In this case, Plaintiff-Appellant Stephen Preziosi filed suit against the
Louisiana Department of Children and Family Services (“DCFS”) and five
individual officers (the “Officers”) (collectively, the “Defendants”) in their
official and individual capacities. The district court dismissed Preziosi’s
claims with prejudice, stating that DCFS is entitled to sovereign immunity
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 25-30021 Document: 78-1 Page: 2 Date Filed: 11/05/2025
No. 25-30021
and that Preziosi failed to adequately allege facts detailing misconduct by the
Officers. We MODIFY the district court’s judgment of dismissal with
prejudice against DCFS and the Officers in their official capacities to a
judgment without prejudice, and we AFFIRM the judgment as modified.
I
In 1998, Preziosi initiated divorce proceedings that resulted in him and
his former spouse sharing joint custody of their child. Preziosi alleges that his
former spouse falsely accused him of domestic violence during his divorce
proceedings. He claims, inter alia, that the Defendants violated his
constitutional rights by intentionally altering his divorce decree and child
support payments, assisting his former spouse in manipulating court
proceedings, and concealing documents that Preziosi requested under the
Freedom of Information Act (“FOIA”).
On August 10, 2023, Preziosi filed suit against the Defendants in the
Western District of Louisiana. 1 On December 12, 2024, the district court
granted DCFS and the Officers’ Rule 12(b)(1) and 12(b)(6) motions,
dismissing all of Preziosi’s claims. 2 The court dismissed Preziosi’s claims
against DCFS, explaining that it did not have subject-matter jurisdiction
because DCFS is entitled to Eleventh Amendment sovereign immunity “as
an agency of the State.” The court further dismissed Preziosi’s claims
_____________________
1
Preziosi filed an amended complaint on October 23, 2023, in which he added
Bridget Depland-Grant, another officer, as a defendant, and he clarified that he was suing
the Officers in both their “official and individual capacities.”
2
The court also denied Preziosi’s motion for a Temporary Restraining Order
(“TRO”), stating that he did not assert any specific facts to show immediate and
irreparable injury. The court stated that a TRO was not an adequate vehicle to challenge
“his state court child support proceedings, its related enforcement actions, the Order
staying discovery[,] or the responses to his FOIA requests.” Additionally, the court denied
Preziosi’s ex parte emergency motion to prevent wrongful incarceration and termination.
2
Case: 25-30021 Document: 78-1 Page: 3 Date Filed: 11/05/2025
No. 25-30021
against the Officers because he “[did] not address or provide factual support
for his allegations against any of the remaining defendants.” Preziosi timely
filed a notice of appeal.
II
As an appeal from a final judgment, this court has jurisdiction under
28 U.S.C. § 1291. We review a district court’s dismissal under 12(b)(1) for
lack of subject-matter jurisdiction de novo. McLin v. Twenty-First Jud. Dist.,
79 F.4th 411, 415 (5th Cir. 2023) (citing Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001)). Specifically, we review the district court’s grant of
a motion to dismiss based on sovereign immunity de novo. Jackson v. Wright,
82 F.4th 362, 366 (5th Cir. 2023); see also McLin, 79 F.4th at 415 (citing
Ramming, 281 F.3d at 161) (“When a Rule 12(b)(1) motion is filed with other
Rule 12 motions, the court first considers its jurisdiction.”).
We also review a district court’s dismissal under Rule 12(b)(6) for
failure to state a claim de novo. McKay v. LaCroix, 117 F.4th 741, 746 (5th
Cir. 2024) (citing Petrobras Am., Inc. v. Samsung Heavy Indus. Co., Ltd., 9
F.4th 247, 253 (5th Cir. 2021)). We “accept[] all well-pleaded facts as true
and view[] those facts in the light most favorable to the plaintiffs.” McLin, 79
F.4th at 415 (citing Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th
Cir. 2008) (quotation omitted)). To survive a motion to dismiss, a plaintiff
must “plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “We do not, however,
accept as true legal conclusions, conclusory statements, or naked assertions
devoid of further factual enhancement.” Edmiston v. Borrego, 75 F.4th 551,
557 (5th Cir. 2023), cert. denied sub nom., Crandel v. Hall, 144 S. Ct. 1002
(2024).
3
Case: 25-30021 Document: 78-1 Page: 4 Date Filed: 11/05/2025
No. 25-30021
However, “[w]e review for abuse of discretion [a] district court’s
choice to dismiss claims with prejudice rather than without prejudice.”
Spivey v. Chitimacha Tribe of La., 79 F.4th 444, 446 (5th Cir. 2023).
III
A
“In most cases, Eleventh Amendment sovereign immunity bars
private suits against nonconsenting states in federal court.” City of Austin v.
Paxton, 943 F.3d 993, 997 (5th Cir. 2019). As a result, “[f]ederal courts are
without jurisdiction over suits against a state, a state agency, or a state official
in his official capacity unless that state has waived its sovereign immunity or
Congress has clearly abrogated it.” Healthy Vision Ass’n v. Abbott, 138 F.4th
385, 396 (5th Cir. 2025) (quoting Moore v. La. Bd. of Elementary & Secondary
Educ., 743 F.3d 959, 963 (5th Cir. 2014)). Sovereign immunity also prohibits
plaintiffs from filing suits “against state officials or agencies that are
effectively suits against a state.” Paxton, 943 F.3d at 997.
But, as the Supreme Court held in Ex parte Young, 209 U.S. 123, 155–
56 (1908), “a federal court may enjoin a state official in his official capacity
from taking future actions in furtherance of a state law that offends federal
law or the federal Constitution.” Abbott, 138 F.4th at 396 (quoting Moore, 743
F.3d at 963). This exception allows plaintiffs to sue state officials “whose
conduct violates federal law.” Wright, 82 F.4th at 367 (quoting Haverkamp v.
Linthicum, 6 F.4th 662, 669 (5th Cir. 2021) (per curiam)). Under this theory,
“when a state actor enforces an unconstitutional law, he is stripped of his
official clothing and becomes a private person subject to suit.” Id.
B
We affirm the district court’s ruling that all claims against DCFS are
barred. DCFS is a state agency that has not consented to being sued and
4
Case: 25-30021 Document: 78-1 Page: 5 Date Filed: 11/05/2025
No. 25-30021
Congress has not expressly abrogated sovereign immunity. Thus, DCFS is
entitled to sovereign immunity.
Regarding the Officers, Preziosi has not asserted an unconstitutional
law that has been enforced against him in order to qualify for an exception
under Ex parte Young. Instead, Preziosi argues that the doctrine of immunity
does not apply when faced with “concrete evidence of constitutional
violations,” however, he fails to assert how the Officers violated any
constitutional provision. Nowhere in his complaint, or appellate brief, does
he explicate what conduct the Officers engaged in to warrant suit. Instead,
Preziosi’s complaint provides conclusory allegations bereft of any specific
facts to support his claims. As the district court correctly explained, we
cannot infer that the Officers are liable absent any factual support. Thus, the
Officers are also entitled to sovereign immunity in their official capacities.
The district court did err when it dismissed Preziosi’s claims against
the Officers in their official capacities with prejudice. If a court dismisses a
case based on sovereign immunity, it must dismiss without prejudice. See
Spivey, 79 F.4th at 449; United States v. $4,480,466.16 in Funds Seized from
Bank of Am. Acct. Ending in 2653, 942 F.3d 655, 666 (5th Cir. 2019). As the
Defendants correctly highlight, dismissal based on sovereign immunity is a
dismissal for lack of subject-matter jurisdiction. Thus, we conclude that the
district court erred when it dismissed Preziosi’s claims with prejudice.
Because the Defendants are clearly entitled to immunity under the
Eleventh Amendment, we hold that that the district court correctly granted
Defendants’ motion to dismiss for lack of subject-matter jurisdiction. We
also hold that, because dismissal based on sovereign immunity is dismissal
for lack of subject-matter jurisdiction, the district court erred when it
dismissed Preziosi’s claims against DCFS and against the Officers in their
official capacities with prejudice.
5
Case: 25-30021 Document: 78-1 Page: 6 Date Filed: 11/05/2025
No. 25-30021
IV
We also affirm the district court’s ruling that Preziosi asserts no
factual allegation against any of the Officers under 12(b)(6). In Preziosi’s
complaint, he stated that he was suing the Officers in their official and
individual capacities. 3 However, on appeal, he only addresses whether the
Defendants are entitled to sovereign immunity. Regardless of whether
Preziosi waived his arguments, we agree with the Defendants and the district
court that he has failed to adequately allege sufficient facts to infer that the
Officers are liable for any constitutional violation in any capacity.
Again, because Preziosi cites no specific conduct from the Officers,
we hold that that the district court correctly granted Defendants’ motion to
dismiss for failure to state a claim.
_____________________
3
The district court declined to address whether Preziosi was suing the Officers in
their official or individual capacities because, under either capacity, Preziosi’s claims fail.
We agree. Because we hold that Preziosi has not sufficiently alleged any specific facts to
substantiate his claims, and he has failed to brief them, we also hold that he waived all other
issues on appeal, including his claim that the Defendants failed to produce documents, the
district court failed to appoint counsel, supervisory and constitutional liability claims
against the Defendants, the allegedly erroneous transfer of the case to Judge Edwards, and
his claims of quantifiable harm. see Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir.
2021) (“A party forfeits an argument by failing to raise it in the first instance in the district
court—thus raising it for the first time on appeal—or by failing to adequately brief the
argument on appeal.”).
We also hold that Preziosi does not have a viable claim regarding whether the
district court erroneously stayed discovery or denied his motion to compel because he failed
to remedy deficiencies that the district court noted, and he did not refile another motion.
6
Case: 25-30021 Document: 78-1 Page: 7 Date Filed: 11/05/2025
No. 25-30021
V
For the foregoing reasons, we MODIFY the district court’s
judgment of dismissal with prejudice against DCFS and the Officers in their
official capacities to a judgment without prejudice, and we AFFIRM the
judgment as modified.
7