IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30498

Summary Calendar

KELVIN WELLS; KELDA PRICE WELLS; AARON WELLS; BETHANY

WELLS; PATRICK WELLS, 

Plaintiffs-Appellants

v.

STATE ATTORNEY GENERALS OF LOUISIANA; MARILYN P. LEUFROY;

PUBLIC PROTECTION DIVISION; DARRELL BERRY,

Defendants-Appellees

Appeals from the United States District Court

for the Middle District of Louisiana

USDC No. 3:10-CV-376

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Appellants (Wells) appeal the district court’s judgment granting the

appellees’ motion to dismiss their complaint for failure to state a claim upon

which relief could be granted. Wells sought relief under the Freedom of

Information Act (FOIA), 5 U.S.C. § 552, et seq.; the Louisiana Equal Housing

Opportunity Act (La. Act), La. R.S. 51:2601, et seq.; and the Civil Rights Act of

United States Court of Appeals

Fifth Circuit

F I L E D

March 22, 2012

Lyle W. Cayce

Clerk

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.

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1968. The district court also dismissed the complaint as frivolous pursuant to

28 U.S.C. § 1915(e). 

In the district court, Wells sought the enforcement of immigration laws. 

This claim is abandoned on appeal due to Wells’s failure to adequately brief it. 

See Yohey v. Collins, 985 F2d 222, 225 (5th Cir. 1993). Further, because Wells

did not provide any argument or legal authority to support his conclusional

arguments concerning an alleged denial of equal protection and due process,

those issues are also abandoned. See id.

The district court’s dismissal was based on the complaint being both

frivolous and failing to state a claim upon which relief could be granted; thus,

our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005);

Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).

In this court, Wells contends that the Eleventh Amendment does not bar

a claim against state officials who deprive citizens of their federal rights and

that the defendants violated his rights as an African-American by failing to

investigate his claims of racial discrimination. Although Wells characterizes his

complaints as violations of federal rights, his allegations reflect that he is

complaining about state officers’ failure to comply with their duties under state

law. Because he is alleging non-compliance with state laws, Wells’s claim does

not fall within any exception to Eleventh Amendment immunity; the Eleventh

Amendment bars Wells from seeking prospective injunctive as well as monetary

relief from the defendants in their official capacities. McKinley v. Abbott, 643

F.3d 403, 405-06 (5th Cir.), cert. denied, 132 S. Ct. 825 (2011); see Ex Parte

Young, 209 U.S. 123 (1908).

Wells’s argument that the appellees refused to provide copies of

investigatory documents in violation of the FOIA fails to state a claim because

those federal provisions apply only to documents under the control of federal

agencies. See 5 U.S.C. § 552. With respect to Wells’s contention that the district

court erroneously refused discovery, there was no error because discovery

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generally is not allowed until the resolution of immunity issues in the case. See

Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 177 (5th Cir. 1990).

Wells contends that the appellees are liable in their personal capacity

because they failed to investigate the complaints of African-Americans who are

subjected to hate crimes and criminal activity. Because the defense of qualified

immunity was raised, there is no liability unless Wells has shown that “taking

the facts in the light most favorable to the plaintiff, the officer’s alleged conduct

violated a constitutional right.” See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410

(5th Cir. 2009) (internal quotation marks and citation omitted). Wells has not

made the required showing.

The La. Act is substantially equivalent to the federal housing act and

makes it unlawful to racially discriminate against any person in the provision

of services or facilities in connection with the sale or rental of a dwelling. Cf. 42

U.S.C. § 3601, et seq.; La. R.S. 51:2601, et seq., especially § 51:2606. Wells’s

factual allegations were not sufficient to state a claim that the appellees

conducted the investigation of the complaints with racially discriminatory

intent. Cf. Village of Arlington Heights v. Metropolitan Housing Dev., 429 U.S.

252, 270 (1977). Wells has failed to allege facts supporting a claim that the

defendants violated clearly established constitutional rights to be free of racial

discrimination in housing. See Lytle, 560 F.3d at 410. Further, Wells’s claims

have no arguable merit and, thus, were also properly dismissed as frivolous

pursuant to § 1915(e).

Kelvin Wells did not appeal the district court’s judgment awarding the

appellees attorneys’ fees and costs. Thus, we lack jurisdiction to review the

ruling. See FED. R. APP. P. 3(a); Bowles v. Russell, 551 U.S. 205, 214 (2007) (A

timely notice of appeal is mandatory and jurisdictional in a civil case.). Counsel

for the appellees are directed to file a motion seeking any attorneys’ fees and

costs arising out of this appeal.

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Wells’s appeal is without arguable merit, see Howard v. King, 707 F.2d

215, 220 (5th Cir. 1983), and it is frivolous; accordingly, it is dismissed. See 5TH

CIR. R. 42.2. 

APPEAL DISMISSED.

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