The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2009
No. 09-20207 Charles R. Fulbruge III
Summary Calendar Clerk
MARVINELL HARLAN and GREGORY HARLAN
Plaintiffs-Appellants
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
RALPH ROUSE, Individual Capacity; KENDRICK SMALL, Attorney,
Individual Capacity; TAMARA MILLER, Deputy Director, Individual
Capacity; TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY
SERVICES (CPS); JANICE PETRY, FAD Program Director, Individual
Capacity; RANDY JOINER-HOUSTON, CPS Director, Individual Capacity;
THOMAS CHAPMOND, Executive Director, Individual Capacity; BETTY
HABLE, Ombudsman Director, Individual Capacity
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-1943
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20207
Plaintiffs Marvinell and Gregory Harlan appeal the dismissal of their suit
on defendants’ motion to dismiss. Plaintiffs claim that the defendants violated
their constitutional rights when the Texas Department of Family and Protective
Services (“DFPS”) removed a minor child from their foster care. We agree with
the district court’s disposition of this case.
The district court correctly ruled that it did not have subject matter
jurisdiction over the Department of Health and Human Services because the
department’s sovereign immunity protects the federal government from this suit.
Absent an express waiver of immunity, the United States, its departments and
employees in their official capacities are immune from suit. Hercules Inc. v.
United States, 516 U.S. 417, 422 (1996); In re Supreme Beef Processsors, Inc., 468
F.3d 248, 251-252 (5th Cir. 2006). Similarly, the claims against the Texas DFPS
are barred by the Eleventh Amendment which deprives federal courts of
jurisdiction to hear a suit by a private citizen against a state in federal court.
Alabama v. Pugh, 438 U.S. 781, 781-82 (1978); Okpalobi v. Foster, 244 F.3d 405,
411 (5th Cir. 2001).
The district court also correctly dismissed the three federal employees,
Small, Rouse and Miller, for failure to state a claim and the individual state
defendants, Petrey, Joiner, Chapmond and Hable, on the basis of qualified
immunity. Plaintiffs failed to plead sufficient facts to demonstrate that the
defendants’ conduct violated any constitutional right. The plaintiffs’ adoption
of the minor child was never consummated. The plaintiffs cite no authority,
clearly established or otherwise, that indicates that they had any protected
constitutional rights or interests related to that child. Moreover, plaintiffs’
failure to show that the defendants violated any of plaintiff’s constitutional
rights precludes all of their claims.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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No. 09-20207
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