IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30998

(Summary Calendar)

 

In Re: HARRY J. MOREL, St. Charles Parish 

District Attorney; KURT SINS, St. Charles 

Parish Assistant District Attorney,

Petitioners,

MURPHY MARTIN COMARDELLE,

Plaintiff-Respondent.

Consolidated with

 

Nos. 98-31001 and 98-31222

 

MURPHY MARTIN COMARDELLE,

Plaintiff-Appellee,

versus

POLLIS HERNANDEZ, also known as Pookie 

Hernandez; ET AL.,

Defendants,

HARRY J. MOREL, St. Charles Parish District 

Attorney; KURT SINS, St. Charles Parish 

Assistant District Attorney,

Defendants-Appellants.

- - - - - - - - - -

Appeals from the United States District Court

for the Eastern District of Louisiana

(98-CV-679-I)

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* 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that this opinion should not be published and is not precedent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.

1 To decide this case, it is not necessary to address the

jurisdictional issue advanced by the prosecutors, of immunity

under the Eleventh Amendment. As all claims against DefendantAppellants have been dismissed, the question of Eleventh

Amendment immunity has been rendered moot.

2

July 25, 2000

Before POLITZ, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

Petitioners Harry J. Morel and Kurt Sins request rehearing of

our affirmance of the district court’s refusal to grant their

motion to dismiss, on the basis of absolute immunity, the claims

filed against them under 42 U.S.C. § 1983 in their official

capacities. As the claims brought against Morel and Sins have all

effectively been dismissed, we grant rehearing and reverse the

district court’s ruling only insofar as it failed to grant the

Defendant-Appellants’ motion to dismiss the claims brought against

them in their official capacities.1 

Plaintiff-Appellee initially brought these claims against

Morel and Sins and against the St. Charles Parish District

Attorneys Office (“the DA’s office”). Shortly thereafter, by ex

parte motion, Plaintiff voluntarily dismissed inter alia all claims

against the DA’s office and that order was entered by the district

court. Several months later, Defendant-Appellants filed a motion

to dismiss the claims brought against them, asserting defenses of
2 Will v. Michigan, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312

(1989). 

3

absolute and qualified immunity as well as Eleventh Amendment

immunity. The district court granted that motion in part, on the

grounds of absolute prosecutorial immunity, dismissing all claims

brought against Morel and Sins in their individual capacities.

Holding that the plaintiff’s complaint also asserted claims against

Defendants-Appellants in their official capacity, the district

court refused to dismiss those claims. 

“[A] suit against a state official in his or her official

capacity is not a suit against the official but rather is a suit

against the official’s office.”2 The claims brought by PlaintiffAppellee against Morel and Sins in their official prosecutorial

capacities are thus claims against the DA’s office. When the court

granted Plaintiffs’ motion and entered an order dismissing their

claims against the DA’s office, the court effectively dismissed the

claims brought against Morel and Sins in their official

prosecutorial capacities. The district court therefore erred in

not formally dismissing the claims asserted against DefendantsAppellants in their official capacities. 

We grant the Defendants-Appellants’ motion for rehearing and

now affirm the district court to the extent it granted the

Defendants-Appellants’ motion to dismiss the claims brought against

them in their individual capacities on the grounds that those

claims are barred by absolute prosecutorial immunity; however, we
3 Three other motions were filed in this matter. DefendantAppellants filed a motion to strike the exhibits attached to

plaintiff-appellee’s response to the petition for rehearing. The

Louisiana District Attorney Association filed a motion to file an

amicus brief on behalf of Morel and Sins. Finally, PlaintiffAppellee filed a motion for leave to file a response to the

amicus brief of the Louisiana District Attorney Association. The

motion to strike and the motion to file an amicus brief are

denied. Leave to file a response brief is denied as moot. 

4

reverse that order insofar as it failed to dismiss the claims

brought against the prosecutors in their official capacities and

remand to the district court to enter an order dismissing the

claims.3

MOTION FOR REHEARING GRANTED; DISTRICT COURT AFFIRMED IN PART,

REVERSED IN PART, and REMANDED WITH INSTRUCTIONS.