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. 09-10395

Summary Calendar

ROBERT MAY,

Plaintiff - Appellant

v.

NORTH TEXAS STATE HOSPITAL, et al.,

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:08-cv-25

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Robert May, pro se, appeals the dismissal of his 42 U.S.C. § 1983

complaint. We AFFIRM.

On March 5, 2008, Robert May filed a civil rights complaint asserting

various claims against North Texas State Hospital and several other defendants.

At the time this complaint was filed, May was a psychiatric patient at North

Texas State Hospital.

United States Court of Appeals

Fifth Circuit

F I L E D

October 29, 2009

Charles R. Fulbruge III

Clerk
No. 09-10395

-2-

On November 7, 2008, all but one of May’s claims were dismissed as

frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). In his remaining claim, May

contended that he was unlawfully forced to take psychiatric medication while

confined at North Texas State Hospital. He sought damages and injunctive

relief in the form of his immediate release as well as the closure of the entire

facility. This claim was subsequently dismissed for failing to state a claim upon

which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).

Because May is proceeding pro se, his pleadings will be liberally construed.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007). May’s request for immediate

release was mooted when he was released from the hospital in July 2008. Even

with a generous reading, the only remaining claim is against the North Texas

State Hospital for forcing him to take psychiatric medication.

We review a dismissal pursuant to Section 1915(e)(2)(b)(ii) using the same

de novo standard applicable to dismissals pursuant to Federal Rule of Civil

Procedure 12(b)(6). Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). We

will consider the plaintiff’s allegations to be true, then affirm only if no relief

could be granted on the facts alleged. Id.

North Texas State Hospital is a division of the Texas Department of

Mental Health and Mental Retardation. See TEX. HEALTH & SAFETY CODE §

532.001(b)(8). It is therefore a state agency for the purpose of Eleventh

Amendment immunity. See Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069

(5th Cir. 1981) (holding that Rusk State Hospital, exclusively controlled by the

same Texas department, was a state agency for Eleventh Amendment purposes).

Absent an express waiver, the Eleventh Amendment precludes suits in which a

state agency is named as a defendant. Pennhurst State Sch. & Hosp. v.
No. 09-10395

-3-

Halderman, 465 U.S. 89, 100 (1984). There is no suggestion that Texas has

waived its Eleventh Amendment immunity in this case.

There is a narrow exception to Eleventh Amendment immunity. See Ex

Parte Young, 209 U.S. 123 (1908). It applies to suits that allege a violation of

federal law that are “brought against individual persons in their official

capacities as agents of the state, and the relief sought must be declaratory or

injunctive in nature and prospective in effect.” Aguilar v. Tex. Dep’t of Crim.

Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). 

The district court held that the Ex Parte Young exception was inapplicable

because May did not seek prospective injunctive relief from any individual sued

in an official capacity. May argues the district court must not have read his

response to the motion to dismiss in which he named two psychiatrists, Dr.

Shirro and Dr. Solven, as the individuals who prescribed or administered his

psychiatric medication. However, neither individual is named as a defendant in

the complaint, and May has not amended his complaint to add either of them.

Therefore, the Ex Parte Young exception does not apply. 

Since immunity has not been waived and the Ex Parte Young exception

does not apply, the district court correctly held that the Eleventh Amendment

precluded May’s Section 1983 claim against North Texas State Hospital.

Accordingly, the district court’s dismissal of this claim is AFFIRMED.