UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DEMETRIOUS SCOTT NERO, Plaintiff - Appellant,

v. STATE OF OKLAHOMA, Defendant - Appellee. No. 22-6121 (D.C. No. 5:22- CV-00370-PRW) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ Demetrious Nero, an Oklahoma state prisoner proceeding pro se, 1 appeals the district court’s order dismis sing his civil-rights complain t without prejudice. For the reasons explained be low, we affirm.

* After examining the appellant’s brief a nd the appellate record, this panel has determined unanimously to honor the appell ant’s request for a decision on the brief without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 1 We liberally construe Nero’s pro se filings, but we will not act as his advocate. James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### October 25, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6121 Document: 010110758041 Date Filed: 10/25/2022 Page: 12 Background Earlier this year, Nero su ed the State of Oklahoma in federal court, alleging that an Oklahoma statute suspending state pr isoners’ civil rights, Okla. Stat. tit. 21, § 65, violates the Fourteenth Amendment to the United States Constitution. As relief, Nero asked the district court to declare that his “civil rights [were] retained even as a state prisoner” and to award him $35,0 00 in damages “for the [allegedly unconstitutional] suspension of [his] civil rights” under the Oklahoma statute. R. 11 (capitalization standardized). He assert ed that jurisdiction was proper under the Declaratory Judgment Ac t, 28 U.S.C. § 2201. Before service on the State, a magistrate judge granted Nero leave to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915(a) and screened his complaint under § 1915(e)(2)(B) and 28 U.S.C. § 1915A(a) . The magistrate judge construed the complaint as advancing clai ms under 42 U.S.C. § 1983 fo r constitutional violations and recommended dismissal on sovereign-immunity grounds . Nero objected to this recommendation, asserting that he brought claims under § 2201, not § 1983, and that the Eleventh Amendment does not bar claims for declaratory relief. The district court reviewed the recomme ndation de novo and adopted it in part. The district court agreed w ith the magistrate judge that if it construed Nero’s complaint as asserting claims under § 1983, the State would be en titled to Eleventh Amendment immunity. But th e district court observed that Nero “specifically declined” to rely on § 1983. R. 31. Nevert heless, the district court dismissed the Appellate Case: 22-6121 Document: 010110758041 Date Filed: 10/25/2022 Page: 23 complaint without prejudice be cause the Declaratory Judg ment Act—the only statute Nero invoked—does not provide an inde pendent federal cause of action. Nero now appeals. Our review is de novo. See Kay v. Bemis , 500 F.3d 1214, 1217 (10th Cir. 2007) (reviewing § 1915(e)(2)(B )(ii) dismissal for failure to state a claim de novo). 2 Analysis On appeal, Nero concedes that his re quest for money damages is barred by the Eleventh Amendment. But he believes th at, despite this “hic cup,” his complaint asserts a valid claim under th e Declaratory Judgment Act be cause declaratory relief is prospective in nature. Aplt. Br. at 2 (capitalization standard ized). As a result, Nero says, the district court s hould not have dismissed his complaint; it should have simply “struck or ignored” the complaint’s request for damages. Id. at 3 (capitalization standardized). But disregarding Nero’s request fo r money damages does not save his complaint. As the district court explained, the Decl aratory Judgment Act does not provide an independent fe deral cause of action. See Skelly Oil Co. v. Phillips Petrol.
Co. , 339 U.S. 667, 671–74 (1950) (describi ng “limited procedural purpose of the Declaratory Judgment Act”). It merely empowers a c ourt “[i]n a case of actual

2 It is somewhat unclear wh ether the district court dism issed for failure to state a claim, given that it also mentioned lack of subject-matter jurisdiction and Eleventh Amendment immunity. But this lack of clar ity makes no difference to our standard of review, which is de novo for each of these issues. See Lindstrom v. United States , 510 F.3d 1191, 1193 (10th Ci r. 2007) (lack of subj ect-matter jurisdiction); Colby v. Herrick , 849 F.3d 1273, 1276 (10t h Cir. 2017) (Eleventh Amendment immunity). Appellate Case: 22-6121 Document: 010110758041 Date Filed: 10/25/2022 Page: 34 controversy within its jurisd iction” to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not furthe r relief is or could be sought.” § 2201(a). In other words, th e Act “enlarge[s] the range of remedies available in the federal courts,” Skelly Oil Co. , 339 U.S. at 671, but it leaves “substantive rights unchanged,” Beacon Theatres, Inc. v. Westover , 359 U.S. 500, 509 (1959). To maintain an action for a declarator y judgment, then, Nero must assert a valid federal cause of action—one that exists independent of any request for declaratory relief. But Nero identifies none. In the district cour t, he invoked § 2201 only and expressly disavowed an intent to rely on § 1983. And on appeal, he continues to rely solely on § 2201. Even if, despite this disa vowal, we liberally construe d Nero’s complaint as one brought under § 1983, we ag ree with the district cour t that § 1983 would not supply the requisite federal cause of action. Section 1983 provides a private right of action against “any person who, under color of state law, deprives another of rights protected by the Constitution.” Ellis ex rel. Ellis Est. v. Ogden City , 589 F.3d 1099, 1101 (10th Cir. 2009). But the State—the onl y defendant named in the complaint—is not a “person” subject to suit under § 1983. Will v. Mich. Dep’t of State Police , 491 U.S. 58, 64 (1989). Moreover, the Eleven th Amendment bars su it against the State “regardless of the nature of the relief sought.” Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100–01 (1984); see also Higganbotham v. Oklahoma ex rel. Okla. Transp. Comm’n , 328 F.3d 638, 644 (10th Ci r. 2003) (explaining that Appellate Case: 22-6121 Document: 010110758041 Date Filed: 10/25/2022 Page: 45 “Eleventh Amendment immunity squarely app lies” when plaintiff sues “state and its agencies seeking declaratory and injunctive relief”). Accord ingly, the district court properly dismissed Ne ro’s complaint.
Conclusion Because the district court did not err in dismissing Nero’s complaint, we affirm. As a final matter, we deny Nero’s motion to proceed IFP on appeal because he has not asserted “a reasoned, nonfrivol ous argument” in support of his position. Lister v. Dep’t of Treasury , 408 F.3d 1309, 1312 (10th Cir. 2005).

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 22-6121 Document: 010110758041 Date Filed: 10/25/2022 Page: 5