UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MAIKIJAH A. HAKEEM, Plaintiff - Appellant,

v. KANSAS DEPARTMENT OF HUMAN SERVICES, Child S upport Enforcement Division; JODI HOWARD, in her individual and official capacities as Commissioner of Kansas Department of Human Services, Defendants - Appellees. No. 22-3144 (D.C. No. 2:21-CV -02417-JAR-TJJ) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MORITZ , BRISCOE , and CARSON , Circuit Judges.

________________ _________________ Plaintiff Maikijah A. Hakeem, proceeding pro se, appeals the district court’s dismissal of his claims br ought against Defendants for th eir alleged “unauthorized interception” of his economic impact paym ents issued under the Coronavirus Aid, Relief, and Economic Security Act of 2020 (the CARES Act) to satisfy his past-due

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 3, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 12 child support obligations. Exercising ju risdiction under 28 U.S.C. § 1291, we AFFIRM the dismissal of Hakeem’s clai ms without opportunity to amend.
I In March 2020, Congress passed the CARES Act, which, in part, provided economic impact payments (EIPs) of up to $1,200 per adult for eligible individuals and $500 per qualifying child. See CARES Act, Pub. L. No. 116-136, § 2201, 134 Stat. 281, 335 (2020) (codified , in part, at 26 U.S.C. § 64 28). Hakeem, who is civilly committed in Minnesota pursuant to a stat e court order, recei ved approximately $1,813.36 in EIPs. ROA at 5–6, 8. Accordi ng to Hakeem, while he was in the care of the State of Minnesota, Defendants, th e Kansas Department for Children and Families (“DCF”) and its Se cretary, Laura Howard, 1 “[i]llegally sei zed Plaintiff[’]s Economic Impact Payment . . . [and] [u]nlawf ully applied [it] to his past-due child support obligations.” Id. at 6. On September 24, 2021, Hakeem filed his complaint in th e United States District Court for the District of Kansas. Id. at 5–16. Therein, he raised two causes of action against Defendants: (1) “unauthorized interception of EIP in violation of the CARES Act,” and (2) “breach of [securi ty] in violation of the CARES Act.” Id.

1 In his complaint, Hakeem lists the “Kansas Department of Human Services, Child Support Enforcement Division” and “Jodi Howard,” in her individual and official capacities as its “Commissioner,” as the defenda nts. ROA at 5, 7. As the district court later noted, however, “there is no such agency or commissioner in Kansas.” Id. at 38. In his response to the district court’s order to show cause, Hakeem clarified that he meant to sue DC F and its Secretary, Laura Howard. See id. at 48, 56–57. Thus, as did the distri ct court, we will proceed in reviewing Hakeem’s appeal with DCF and Laura Howard as Defendants. Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 23 (capitalization removed). After the magist rate judge granted Hakeem’s motion to proceed in forma pauperis , id. at 20–21, Hakeem attempted (but failed) to serve his named defendants. Id. at 22, 38. When the named defendants did not appear, the magistrate judge ordered Hake em to move for default or otherwise show cause why his case should not be dismis sed for failure to prosecute. Id. at 24–25. Hakeem responded with a motion for entry of de fault and affidavits of service. Id. at 28–34. Thereafter, however, the di strict court judge recogni zed that Hakeem’s named defendants did not exist and that his comp laint was subject to mandatory screening under 28 U.S.C. § 1915(e)(2). Id. at 36–40. Thus, the district court screened Hakeem’s complaint and ordered Hakeem to show cause why his complaint should not be dismissed for fa ilure to state claim. Id. Hakeem responded and, therein, clarified who he meant to na me as defendants, discusse d the legal merits of his claims, and requested leave to amend his complaint. Id. at 46–53. Ultimately, the district court issued an order dismissing Hakeem’s complaint for failure to state a claim. Id. at 56–67. Therein, the dist rict court concluded that (1) the CARES Act did not prevent Defendant s from intercepting Hakeem’s EIPs to apply toward his past-due child support de bts, and (2) the stat e was shielded from liability by sovereign immunity. Id. at 59–65. The district c ourt also denied Hakeem leave to amend his complaint, as it conc luded that any opportunity to amend “would be futile.” Id. at 65. Hakeem now appeals the di strict court’s di smissal of his complaint. Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 34 II We review de novo the district court’ s dismissal of an action under 28 U.S.C. § 1915(e)(2) for failure to st ate a claim, applying the sa me standards we employ to review dismissals under Federal Ru le of Civil Procedure 12(b)(6). See Young v.
Davis , 554 F.3d 1254, 1256 (10th Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficien t factual matter, accepted as true, to ‘state a claim to relief that is plau sible on its face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). In conducting our review, we accept all well pleade d facts as true, view them in the light most favorable to the plaintiff, and draw all re asonable inferences in his favor. Brooks v. Mentor Worldwide LLC , 985 F.3d 1272, 1281 (10th Cir. 202 1). Because Hakeem appears pro se, we construe his filings liberally, but we do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005).
III On appeal, Hakeem argues that the distri ct court erred in di smissing his claims for failure to state a claim (in relation to both the substa nce of his CARES Act claim and sovereign immunity), not holding Defendants in defaul t, and denying Hakeem an opportunity to amend his complaint. We concl ude that the district court did not err in any of these respects.
A. EIP Garnishment The district court correctly concluded that Hakeem fa iled to state a claim for relief under both the CARES Act and the Consolidated Appropriations Act (the Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 45 CAA), 2021, Pub. L. No. 116-260, 134 St at. 1182 (2020) (codified, in part, at 26 U.S.C § 6428A).
1. The CARES Act As he did in the district court, Ha keem argues that, “[p]ursuant to the [CARES] Act[,] payments for child-support are among a list of exemptions, which cannot be intercepted and app lied to certain financial oblig ations.” Aplt. Br. at 2. Hakeem is correct that the CARES Act prohibits EIPs fro m being offset to satisfy
certain debts, see CARES Act § 2201(d), but, as the district court explained, past-due child support is not one of them. See Frequently Asked Questions on the Treasury Offset Program (TOP) , Bureau Fiscal Serv., https:// fiscal.treasury.gov/top/faqs-forthe-public-covid-19.html (last modified July 9, 2021) (“Your entire [EIP] authorized by the CARES Act can be offset, up to th e amount of your child support debt.”); see also Ortiz-Rivas v. Mnuchin , No. 20-cv-1844-pp, 2021 WL 1400931, at *2 (E.D. Wis. Apr. 14, 2021) (“Based on the plaintiff’s allegations, it appears that his EIP was offset because he owed delinquent child support. The CARES Ac t authorizes such offsets.”); Smith v. Cameron , No. 3:20-CV-P748-CHB, 2022 WL 109217, at *2 (W.D. Ky. Jan. 11, 2022) (same); Oliver v. Ill. Dep’t of Health & Fam. Servs. , No. 21-cv-1114-SMY, 2021 WL 48 95336, at *2 (S.D. Ill. Oct. 19, 2021) (same). 2 As the district court held, Defe ndants did not violate the CARES Act by intercepting Hakeem’s EIPs to apply the funds toward his unpaid child support obligations.

2 We cite these unpublished decisions from other jurisdictions not as controlling precedent but for th eir persuasive value. Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 56 2. The CAA Hakeem’s complaint states nothing about the CAA. However, both before the district court and on appeal, Hakeem clarif ies that a portion of his EIPs was paid pursuant to the CAA, which, according to Hakeem, protects such payments from garnishment. The district cour t did not err in concluding that Hakeem failed to state a claim for wrongful garnishment under the CAA. The CAA provided a second round of EI Ps ($600 per adult for eligible individuals, plus $600 per qualifying child) to qualifying individuals. 26 U.S.C. § 6428A(a). Subsection 272(d)(2)(A) of the CAA states that “no applicable payment shall be subject to, execution, levy, attachme nt, garnishment, or other legal process, or the operation of any bankruptcy or in solvency law.” CAA § 272(d)(2)(A). To ensure that CAA EIPs are not garnished, any payment made via an “advance refund amount paid pursuant to [26 U.S.C. § 6428A(f)]” and deposited “electronically by direct deposit” must be issued by the Secretary of the Treasury “using a unique identifier that is reasonably sufficient to allow a financ ial institution to identify the payment as an applicable payment.” Id. § 272(d)(2)(B)(i), (d)(2)(E)(iii)(I). If an applicable payment is deposite d into an account that is subject to a garnishment order—but the applicable payment is not properly encoded with a unique identifier— the financial institution that maintains th e garnished account must, “upon the request of the account holder, . . . tr eat the amount of the funds in the account at the time of the request, up to the amount of the app licable payment . . . as exempt from a garnishment order without requiring the cons ent of the party serving the garnishment Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 67 order or the judgment creditor.” Id. § 272(d)(2)(C)(ii). The term “garnishment order” includes a “written instruct ion issued by a court . . . or a State child support enforcement agency, including a lien arisin g by operation of law for overdue child support.” Id. § 272(d)(2)(E)(v). In his response to the district court’s order to show cause, Hakeem argued that his CAA EIP “arrived as a federal tax refu nd rather than as an encoded economic impact payment.” ROA at 50. Thus, without the proper unique identifier, Defendants—who, Hakeem argued, acted as (1) the financial institution that maintained Hakeem’s garnished account, (2) the creditor that re ceived the proceeds of the garnishment, and (3) the state agency th at issued the garn ishment—improperly seized Hakeem’s CAA EIP. Id. Although Hakeem’s arguments before this court are less robust than those he made befo re the district court, he cites Beal v. Davids , No. 1:21-cv-522, 2021 WL 2934835, at *4 (W.D. Mich. July 13, 2021), vacated, in part, by the district court —which the district court exam ined, in depth—to support his position. See Aplt. Br. at 4 n.3; ROA at 61–62.
In Beal , the plaintiff, an inma te with the Michigan De partment of Corrections (the MDOC), alleged that the MDOC im properly seized his $600 CAA EIP from his prisoner trust account to pay his “various debts” owed to the MDOC and the state and federal courts. 2021 WL 2934 835, at *1–2. Although the CAA “does not define the term,” the Beal court “presume[d] that the MDOC ope rates as a financial institution” because it “administers the trust accounts of the prisoners in its custody,” “accepts the relevant payments from the federal government,” and “app ears capable both of Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 78 effectuating garnishment orders a nd of notating exempt payments.” Id. at *5. The court ultimately concluded that the plainti ff had stated a plausible claim for relief against the warden and three ot her employees of his facility:
[The CAA] arguably mandated Defendants to treat $600 of Plaintiff’s funds as exempt from garn ishment. Plaintiff’s allegations do not clearly indicate whether the appli cable payment was issued with an appropriate unique identifier as di rected by Section 272(d)(2)(B). Nevertheless, Plaintiff’s [letter to the MDOC] requested that . . . MDOC treat $600 of Plaintiff’s $1,800 paym ent as exempt from garnishment, because it was a payment under the [CAA].

. . . . Plaintiff’s complaint and attachments suggest that Defendants seized on a technicality—that his paym ent arrived as a federal tax refund rather than as an encoded economic impact payment. Yet, the Defendants appeared to act in th ree capacities simultane ously: the financial institution obligated to treat Plainti ff’s funds as exempt under [the CAA], a creditor to whom Plaintiff owed debt s, and the State ag ency capable of directing a garnishment of Plaintiff’ s funds to pay the creditor. That conflict could plausibly give Defendants a reas on to justify seizing Plaintiff’s funds to pay his debts. However, [the CAA] provides a secondary method for protecting rele vant payments from garnishment. Plaintiff appears to have employed th at secondary method when he sent his [letter to the MDOC]. In short, [the CAA] argua bly mandated that Defendants— corrections officers at the financial institution holding Plaintiff’s funds— treat $600 of Plaintiff’s funds as exempt from garnishment. Plaintiff alleges that they did not . . . . Thus , Plaintiff has alleged facts sufficient to state a claim under [the CAA]. Id. at *5–6. While Beal is similar to Hakeem’s situation in some regards, Hakeem wholly fails to explain how or why it would be proper to consider DCF a “financial institution.” As the district court in this case discussed, unlike the plaintiff in Beal , Hakeem makes no allegations that DCF (1) “h eld his funds,” or (2) “failed to honor Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 89 his request to treat his CAA economic imp act payment as exempt from garnishment, like the MDOC appeared to in Beal .” ROA at 62; see CAA § 272(d)(2)(C)(ii). In fact, it appears that because Hakeem is civilly committed, his funds are being held in a State of Minnesota trust account. See ROA at 17. The Kansas DCF cannot be held liable for receiving funds that were allegedly wrongfully released from his account by a third party financial institution, especia lly when Hakeem does not allege that he informed any of the relevant actors about this error pr ior to filing suit. See Beal , 2021 WL 2934835, at *5–6. 3 Accordingly, the district cour t did not err in concluding that Hakeem failed to state claim for violation of the CAA.
B. Sovereign Immunity As the district court correctly noted, Hakeem’s claims ar e barred by sovereign immunity. “The Eleventh Amendment renders the States [and their agencies] immune from ‘any suit in law or equ ity, commenced or prosecuted . . . by Citizens of another State, or by Citizens or Subj ects of any Foreign State.’” Tennessee v. Lane , 541 U.S. 509, 517 (2004) (quoting U. S. Const. amend. XI); see Collins v. Daniels , 916 F.3d 1302, 1315 (10th Cir. 2019). However, “[a] State ma y waive its sovereign immunity at its pleasure, and in some circumstan ces Congress may abroga te it by appropriate legislation.” Virginia Off. for Prot. & Advoc. v. Stewart , 563 U.S. 247, 253–54 (2011) (internal citation omitted). “A wa iver of sovereign immunity cannot be

3 Of further note, the plaintiff in Beal argued that EIPs are “exempt from any type of seizure to pay debts other than child support .” Beal , 2021 WL 2934835, at *2 (emphasis added). The Beal court, however, did not address the child support exception, which we concl ude is applicable here. Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 910 implied but must be unequivocally expressed.” United States v. Mitchell , 445 U.S. 535, 538 (1980) (interna l quotation marks and cita tion omitted). Similarly, “Congress’ intent to abrogate the States ’ immunity from suit must be obvious from a clear legislative statement.” Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 55 (1996) (internal quotation marks and citation omitte d). Hakeem states that “Defendants are deemed to have waived any immunity,” ROA at 13; Aplt. Br. at 4, but this statement is not supported by any facts or law. First, Hakeem cites Scholl v. Mnuchin , 494 F. Supp. 3d 661, 692 (N.D. Cal. 2020), appeal dismissed (Dec. 11, 2020), to support hi s position that Defendants are not entitled to sovereign immun ity. There, the plaintiffs su ed several federal agencies (including the Internal Revenue Service (the IRS)) and their dire ctors, to challenge the IRS’s policy of withholding EIPs from incarcerated persons “solely because they are or were incarcerated.” Id. at 692. Ultimately, the dist rict court agreed with the plaintiffs and, before doing so, concluded that Congress had abrogated the IRS’s—a federal agency’s—sovereign immunity in the context of its authority under the federal Administrative Pro cedures Act (the APA). Id. at 678; see also id. at 681 (“Congress waived sovereign immunity und er the APA and the court has subject matter jurisdiction to hear the case.”). Scholl , as well as Ha keem’s repeated references to the APA, ar e readily distinguishable fro m the present case. The APA permits suits against federal agencies but does not waive the sovereign immunity of a state agency such as DCF. Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 1011 Second, Hakeem’s citations to out-of-cir cuit cases that con cern the availability of qualified immunity are unavailing, as they con cern a different type of immunity than is at issue here . Aplt. Br. at 6 (citing Grantham v. Trickey , 21 F.3d 289, 295 (8th Cir. 1994) (“There is no disput e that qualified immunity doe s not apply to claims for equitable relief.”); Bradford v. Mo. Dep’t of Corr. , 46 F. App’x 857, 858 (8th Cir. 2002) (“We note that qualified immunity do es not shield officials from equitable relief.”)). Third, Hakeem’s suit is not saved by the “prospective-relief” exception of Ex parte Young

. See Ex parte Young , 209 U.S. 123 (1908). “[U]nder [ Ex parte Young ], a plaintiff may bring suit agai nst individual state officer s acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief.” Muscogee (Creek) Nation v. Pruitt , 669 F.3d 1159, 1166 (10th Cir. 2012). “[A]lthough the doctrine will allow injunctive relief that might have a substantial ancillary effect on a state treasury, it does not allow an award for monetary relief that is the pr actical equivalent of money da mages, even if this relief is characterized as equitable.” ANR Pipeline Co. v. Lafaver , 150 F.3d 1178, 1189 (10th Cir. 1998) abrogated on other gr ounds by Hill v. Kemp , 478 F.3d 1236, 1259 (10th Cir. 2007). To determine whether the Ex parte Young exception applies, the court “need only conduct a straightforward i nquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Muscogee (Creek) Nation , 669 F.3d at 1167 (quotation marks and citation omitted). Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 1112 Here, although Hakeem characterizes the relief he seeks as injunctive, equitable, and prospective, it is not. He seeks the return of funds that were previously taken from him. He alleges no ongoing constitu tional violations that can be remedied by prospective, injunctive re lief. Further, even if Ex parte Young were applicable, it would not save his suit against DCF, whic h is not an “individua l state officer[].” Id.
at 1166. Fourth, although Hakeem se eks to bring claims agai nst Howard, he offers no specific factual allegations a sserting that she personally pa rticipated in the conduct giving rise to his injuries. Fu rther, as noted, Hakeem’s cl aims against Howard in her official capacity ar e barred by the doctrine of sove reign immunity because this immunity extends to “suits for damages and other form s of relief against state defendants acting in their official capacities.” Buchheit v. Green , 705 F.3d 1157, 1159 (10th Cir. 2012). Thus, th e district court did not e rr in dismissing Hakeem’s claims as barred by s overeign immunity.
C. Defendants’ Default Although there were some procedural mi ssteps leading up to the district court’s screening of Hakeem’s suit, the district court was correct to not enter default judgment against Defendants. It appears th at when Hakeem filed his suit, it was assigned to a magistrate judge. Although the magistrate judge granted Hakeem’s motion to proceed in forma pauperis , ROA at 20–21, the case skipped mandatory screening pursuant to 28 U.S.C. § 1915(e)(2 ) and proceeded to se rvice. Eventually, the magistrate judge ordered Hakeem “to either (1) move for entry of default and Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 1213 after entry of default by the Clerk of Court, file a moti on for default judgment as to Defendants Jodi Howard and Kansas Department of Huma n Services, Child Support Division . . . or (2) show good cause in writing . . . why this case should not be dismissed . . . for lack of prosecution.” Id. at 24. After Hakeem responded to the show cause order, however, the district court judge noticed both that Hakeem’s complaint was subject to mandatory screen ing and that the named defendants, the “Kansas Department of Human Servi ces, Child Support Division” and its Commissioner, “Jodi Howard,” did not exist. Accordingly, the district court ordered Hakeem to show cause why his compla int should not be dismissed. Hakeem submitted a response to the court’s order, along with a motion to amend, and the case proceeded to proper screening. Thus, the di strict court did not err in declining to enter default judgment against Defendants—par ticularly in light of the fact that the record does not establish that they were ever served.
D. Leave to Amend the Complaint Finally, the district court did not err in denying Hakeem leave to amend his complaint. We review a dist rict court’s refusal to perm it an amendment for abuse of discretion. Fields v. Okla. State Penitentiary , 511 F.3d 1109, 1113 (10th Cir. 2007). Because Federal Rule of Civil Procedure 15(a) provides that courts “should freely give leave when justice so requires,” Fed. R. Civ. P. 15(a), denial of leave is generally justified only for “ undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, fa ilure to cure deficiencies by amendments previously allowed, or futility of amendment,” Frank v. U.S. West, Inc. , 3 F.3d 1357, 1365 (10th Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 1314 Cir. 1993). Importantly, when the “denia l is based on a determination that amendment would be futile, our review fo r abuse of discretion includes de novo review of the legal basis for the finding of futility.” United States ex rel. Barrick v. Parker-Migliorini Int’l, LLC , 878 F.3d 1224, 1230 (10th Cir. 2017) (quotation marks and citation omitted). The relief that Hakeem seeks—a fe deral court judgment ordering that Defendants repay him his EIP funds—is barred by sove reign immunity, which Hakeem cannot overcome. Further, Hakeem cannot maintain a suit for the wrongful garnishment of his EIPs pursu ant to the CARES Act. This appeal is Hakeem’s second opportunity to show cause why his suit should not be dismis sed, and he has failed to allege any additional facts to overcome th e barriers of immunity and the requirements of his substantive legal claims (e.g., alle gations that the prope rly named defendant should be a non-governmental financial institution that wrongfully garnished his CAA EIP, even after Hakeem informed the financial in stitution about this error). Accordingly, the district court acted within its discretion to deny Hakeem opportunity to amend his complaint. Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 1415 IV For the foregoing reasons, we AFFIRM the district court’s dismissal of Hakeem’s complaint without opportunity to amend.

Entered for the Court

Mary Beck Briscoe Circuit Judge Appellate Case: 22-3144 Document: 010110762821 Date Filed: 11/03/2022 Page: 15