the federal Freedom of Information Act applies only to documents under the control of federal agencies
How later courts described this case
- the federal Freedom of Information Act applies only to documents under the control of federal agencies
Written by the judges who cited it.
The opinion
Case: 11-30498 Document: 00511797484 Page: 1 Date Filed: 03/22/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 22, 2012
No. 11-30498
Summary Calendar Lyle W. Cayce
Clerk
KELVIN WELLS; KELDA PRICE WELLS; AARON WELLS; BETHANY
WELLS; PATRICK WELLS,
Plaintiffs-Appellants
v.
STATE ATTORNEY GENERALS OF LOUISIANA; MARILYN P. LEUFROY;
PUBLIC PROTECTION DIVISION; DARRELL BERRY,
Defendants-Appellees
Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CV-376
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Appellants (Wells) appeal the district court’s judgment granting the
appellees’ motion to dismiss their complaint for failure to state a claim upon
which relief could be granted. Wells sought relief under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, et seq.; the Louisiana Equal Housing
Opportunity Act (La. Act), La. R.S. 51:2601, et seq.; and the Civil Rights Act of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30498 Document: 00511797484 Page: 2 Date Filed: 03/22/2012
No. 11-30498
1968. The district court also dismissed the complaint as frivolous pursuant to
28 U.S.C. § 1915(e).
In the district court, Wells sought the enforcement of immigration laws.
This claim is abandoned on appeal due to Wells’s failure to adequately brief it.
See Yohey v. Collins, 985 F2d 222, 225 (5th Cir. 1993). Further, because Wells
did not provide any argument or legal authority to support his conclusional
arguments concerning an alleged denial of equal protection and due process,
those issues are also abandoned. See id.
The district court’s dismissal was based on the complaint being both
frivolous and failing to state a claim upon which relief could be granted; thus,
our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005);
Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).
In this court, Wells contends that the Eleventh Amendment does not bar
a claim against state officials who deprive citizens of their federal rights and
that the defendants violated his rights as an African-American by failing to
investigate his claims of racial discrimination. Although Wells characterizes his
complaints as violations of federal rights, his allegations reflect that he is
complaining about state officers’ failure to comply with their duties under state
law. Because he is alleging non-compliance with state laws, Wells’s claim does
not fall within any exception to Eleventh Amendment immunity; the Eleventh
Amendment bars Wells from seeking prospective injunctive as well as monetary
relief from the defendants in their official capacities. McKinley v. Abbott, 643
F.3d 403, 405-06 (5th Cir.), cert. denied, 132 S. Ct. 825 (2011); see Ex Parte
Young, 209 U.S. 123 (1908).
Wells’s argument that the appellees refused to provide copies of
investigatory documents in violation of the FOIA fails to state a claim because
those federal provisions apply only to documents under the control of federal
agencies. See 5 U.S.C. § 552. With respect to Wells’s contention that the district
court erroneously refused discovery, there was no error because discovery
2
Case: 11-30498 Document: 00511797484 Page: 3 Date Filed: 03/22/2012
No. 11-30498
generally is not allowed until the resolution of immunity issues in the case. See
Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 177 (5th Cir. 1990).
Wells contends that the appellees are liable in their personal capacity
because they failed to investigate the complaints of African-Americans who are
subjected to hate crimes and criminal activity. Because the defense of qualified
immunity was raised, there is no liability unless Wells has shown that “taking
the facts in the light most favorable to the plaintiff, the officer’s alleged conduct
violated a constitutional right.” See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410
(5th Cir. 2009) (internal quotation marks and citation omitted). Wells has not
made the required showing.
The La. Act is substantially equivalent to the federal housing act and
makes it unlawful to racially discriminate against any person in the provision
of services or facilities in connection with the sale or rental of a dwelling. Cf. 42
U.S.C. § 3601, et seq.; La. R.S. 51:2601, et seq., especially § 51:2606. Wells’s
factual allegations were not sufficient to state a claim that the appellees
conducted the investigation of the complaints with racially discriminatory
intent. Cf. Village of Arlington Heights v. Metropolitan Housing Dev., 429 U.S.
252, 270 (1977). Wells has failed to allege facts supporting a claim that the
defendants violated clearly established constitutional rights to be free of racial
discrimination in housing. See Lytle, 560 F.3d at 410. Further, Wells’s claims
have no arguable merit and, thus, were also properly dismissed as frivolous
pursuant to § 1915(e).
Kelvin Wells did not appeal the district court’s judgment awarding the
appellees attorneys’ fees and costs. Thus, we lack jurisdiction to review the
ruling. See FED. R. APP. P. 3(a); Bowles v. Russell, 551 U.S. 205, 214 (2007) (A
timely notice of appeal is mandatory and jurisdictional in a civil case.). Counsel
for the appellees are directed to file a motion seeking any attorneys’ fees and
costs arising out of this appeal.
3
Case: 11-30498 Document: 00511797484 Page: 4 Date Filed: 03/22/2012
No. 11-30498
Wells’s appeal is without arguable merit, see Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983), and it is frivolous; accordingly, it is dismissed. See 5TH
CIR. R. 42.2.
APPEAL DISMISSED.
4