*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opinion should not be published and is not precedent except under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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-10788

Summary Calendar

 

DANTE D’AGOSTINO, III,

Plaintiff-Appellant,

versus

JEAN LOUIS, ET AL.,

Defendants-Appellees.

 

Appeal from the United States District Court for the

Northern District of Texas

(1:97-CV-27)

 

June 16, 1998

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*

PER CURIAM:

Dante D’Agostino, III, Texas state prisoner # 688309, seeks

appellate relief relative to several interlocutory orders of the

district court, entered by a magistrate judge on authority of 28

U.S.C. § 636(c). The district court authorized a Fed. R. Civ. P.

54(b) appeal, but only of its order dated May 30, 1997, dismissing
1We also note that D’Agostino informed the court below that he

wished to withdraw his official capacity claims against all

defendants except Scott, against whom he sought official capacity

injunctive (and declaratory) relief.

2

D’Agostino’s claims against all the defendants, prison officials,

and employees in their official capacities.

Relative to this May 30, 1997, order, D’Agostino has argued on

appeal only the dismissal of his claim for injunctive (or

declaratory) relief against appellee Wayne Scott (allegedly the

director of the Texas prison system).1

The district court, in its order dated May 30, 1997,

dismissing the entirety of D’Agostino’s official capacity claims on

the basis of the Eleventh Amendment, was under the erroneous

impression that only monetary relief was sought (“[t]he entire

prayer for relief in this case is for monetary damages”). However,

paragraph B of the complaint’s prayer for relief specifically

sought injunctive relief against Scott, as above noted. See

Pennhurst State Sch. and Hospital v. Halderman, 465 U.S. 89, 100-03

(1984). Therefore, the district court’s order dated May 30, 1997,

is VACATED insofar only as it dismissed the claim for injunctive

(or declaratory) relief against Scott in his official capacity, and

said injunctive (or declaratory) claim against Scott in his

official capacity is REMANDED for further proceedings. As to

appropriate authorization of amendment of this remanded claim

following remand, see generally Eason v. Thaler, 14 F.3d 8, 9-10
3

(5th Cir. 1994). D’Agostino’s request that this Court grant him

injunctive relief is DENIED as it has no arguable merit. See A.O.

Smith Corp. v. FTC, 530 F.3d 515, 525 (3d Cir. 1976).

Since D’Agostino does not challenge the May 30, 1997, order in

any respect other than insofar as it dismissed any official

capacity claims for injunctive (or declaratory) relief against

Scott, his complaints concerning his request to withdraw his

consent to proceed under section 636(c) and the magistrate judge’s

refusal to recuse himself are either mooted by our above action or

are nonappealable interlocutory orders beyond the scope of this

Rule 54(b) appeal, and said contentions are hence DISMISSED as moot

or nonappealable.

D’Agostino’s complaints concerning the separate order dated

June 2, 1997, dismissing his claim for monetary damages against

Scott individually, and the separate order denying his motion to

serve process on a “John Doe” defendant, all wholly relate to

nonappealable interlocutory orders beyond the scope of this Rule

54(b) appeal and are hence DISMISSED as nonappealable.

VACATED and REMANDED in part; APPEAL DISMISSED in part;

request for this Court to enter injunction DENIED