* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 11, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30231

Summary Calendar

YORI HENRY FAIRLEY, Estate of Dion Henry

Plaintiff – Appellant

v.

LOUISIANA STATE; LOUISIANA STATE BOARD 

OF MEDICAL EXAMINERS; ROBERT MARIER, MD/MHA,

officially in his capacity as Executive Director of the 

Louisiana Board of Medial Examiners and Individually; 

KATHLEEN BLANCO; officially in her capacity as Governor 

and Individually; STEPHANIE IRVAN, officially in her 

capacity as Program Compliance Officer and Individually

Defendants – Appellees

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:06-CV-6064

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Yori Henry Fairley appeals from the dismissal of a civil rights lawsuit

brought on behalf of the estate of her son, Dion Henry. Fairley sued the State
No. 07-30231

1 A separate lawsuit against various health care providers who were allegedly involved

in the child’s death is pending elsewhere.

2

of Louisiana,theLouisiana State Board of Medical Examiners,two of its officers,

Robert Marier, M.D., and Stephanie Irvan, and Governor Kathleen Blanco,

seeking injunctive relief and damages relating to the resolution of an

administrative complaintfiled against her son’s doctor. Finding dismissal of the

suit proper, we AFFIRM.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises from the death of two-year old Dion Henry, who died

within days of being admitted to Ochsner Medical Center in late September

2005. After Dion’s death, his mother, Yori Henry Fairley, filed a complaint with

the Louisiana State Board of Medical Examiners (the Board), alleging that a

doctor at Ochsner had poisoned Dion with barbiturates. The Board investigated

but found no grounds for administrative action against the doctor. 

Fairley then brought this lawsuit1 against the State of Louisiana, the

Board, Robert Marier, Stephanie Irvan, and Kathleen Blanco, primarily seeking

an injunction directing the Board to re-open its investigation of Fairley’s

complaint and conduct an examination of her son’s body to determine whattypes

of barbiturates were present in his system when he died. She also sued Marier,

Irvan, and Blanco in their individual capacities under 42 U.S.C. § 1983, alleging

that constitutional violations were committed by the defendants in the course of

the Board’s investigation. The defendants moved for dismissal under Federal

Rule of Civil Procedure 12(b)(1) and (6) on the grounds that the Eleventh

Amendment deprived the district court of jurisdiction to grant the relief sought

against the defendants in their official capacities, and that Fairley had failed to

state a claim for which relief can be granted against the defendants in their

individual capacities. The district court granted the motion to dismiss, and

Fairley now appeals. 
No. 07-30231

3

II. DISCUSSION

A. Standard of Review

We review de novo the district court’s order on a motion to dismiss for

failure to state a claim under Rule 12(b)(6). The “court accepts ‘all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff.’” Martin

K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.

2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). To survive

a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S.

Ct. 1955, 1974 (2007). “Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the allegations in

the complaint are true (even if doubtful in fact).” Id. at 1965 (quotation marks,

citations, and footnote omitted). We employ a similar standard in reviewing

dismissals for lack of subject matter jurisdiction under Rule 12(b)(1). See Benton

v. United States, 960 F.2d 19, 21 (5th Cir. 1992).

B. The Claims Against the Defendants in Their Official Capacities

Fairley sought an injunction from the district court ordering the Board to

re-open its investigation and conduct an examination of her son’s body to

determine what types of barbiturates were present in his system when he died.

The district court concluded that it had no authority to grant the relief sought.

We agree.

The Eleventh Amendment bars an individual from suing a state in federal

court unless the state consents or Congress has clearly and validly abrogated the

state’s sovereign immunity. U.S. CONST. amend. XI; see, e.g., Coll. Sav. Bank v.

Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)

(recognizing that an individual may sue a state if the state consents or Congress

abrogates the state’s sovereign immunity pursuant to the Fourteenth

Amendment). A suit against a state agency or department is considered a suit
No. 07-30231

2 A state’s receipt of federal funds does not automatically constitute a waiver of its

sovereign immunity; such a waiver is only recognized in limited circumstances, none of which

appear to be implicated here. See Hurst v. Tex. Dep’t of Assistive & Rehab. Servs., 482 F.3d

809, 811 (5th Cir. 2007). 

3 To the extent that Fairley also seeks a money judgment against the defendants in

their official capacities, the Eleventh Amendment operates to bar this relief as well.

4

againstthe state under the Eleventh Amendment. See, e.g., Coll. Sav. Bank, 527

U.S. at 671; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

101 (1984) (“It is clear, of course, that . . . a suit in which the State or one of its

agencies or departments is named as a defendant is proscribed by the Eleventh

Amendment.”). “The Eleventh Amendment [also] bars a suit against state

officials when ‘the state is the real, substantial party in interest.’” Pennhurst,

465 U.S. at 101. “[T]he general rule is that relief sought nominally against an

officer is in fact against the sovereign if the decree would operate against the

latter.” Id. (internal citations and quotations omitted). 

Fairley does not dispute that the Board is a state agency, nor does she

plausibly contend that Louisiana has consented to suit2or that its sovereign

immunity has been abrogated. The Eleventh Amendment therefore bars the

relief sought against the Board and the State of Louisiana.3 See Emory v. Tex.

State Bd. of Med. Exam’rs, 748 F.2d 1023, 1025 (5th Cir. 1984) (holding that the

Eleventh Amendment bars the award of damages and injunctive relief against

the Texas counterpart to the Board). And since any injunction against Marier,

Irvan, or Blanco would primarily operate against the Board, by forcing it to reopen the investigation into the death of Fairley’s son, the state is the real,

substantial party in interest here. The Eleventh Amendment thus forecloses the

claims against Marier, Irvan, and Blanco in their official capacities.

Fairley argues that an injunction is nonetheless available under the

doctrine of Ex parte Young, 209 U.S. 123 (1908), which permits federal courts to

award prospective injunctive relief against state officials who violate federal law.
No. 07-30231

4

In her brief, Fairley does assert that the defendants’ alleged violations of Louisiana

law also constitute a violation of her due process rights. But as we discuss with regard to the

claims against Marier, Irvan, and Blanco in their individual capacities, this conclusion is

without merit, as Fairley has no identifiable property interest in having the Board carry out

its investigation in the manner that she wishes.

5

See Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.

1998). Young is inapplicable, though, because Fairley’s theory is that the Board

has failed to perform duties imposed on it by state law, not federal law.4 Federal

courts simply lack the power to order state officials to conform their conduct to

state law. Pennhurst, 465 U.S. at 106. Dismissal by the district court was

therefore proper.

C. The Claims Against the Defendants in Their Individual Capacities

Fairley claimed that Marier, Irvan, and Blanco are liable under § 1983

because their actions with regard to the Board’s investigation violated Fairley’s

constitutional rights. Specifically, Fairley asserted a deprivation, without due

process, of her “quasi-property” right in having her son’s body examined for

barbiturates. The district court determined that no such property right exists,

and concluded that Fairley had failed to present a viable § 1983 claim. We

agree.

“To state a claim under § 1983, a plaintiff must (1) allege a violation of

rights secured by the Constitution or laws of the United States and (2)

demonstrate that the alleged deprivation was committed by a person acting

under color of state law.” Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th

Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.

1994)). “Our first inquiry is whether the plaintiff has alleged a violation of a

constitutional right at all.” Id. To be entitled to due process, a plaintiff must

present facts showing a deprivation of a property interest. Mahone v. Addicks

Util. Dist. of Harris County, 836 F.2d 921, 929 (5th Cir. 1988) (citing Bd. of

Regents v. Roth, 408 U.S. 564, 569–70 (1972)).
No. 07-30231

6

Fairley now argues that the district court erred in ruling that she has no

property interest in having the Board carry out its investigation in the manner

she wishes. She contends that Louisiana’s child abuse reporting law, LA. CHILD.

CODE ANN. art. 609, creates a property interest. Article 609 imposes a duty on

certain individuals to report suspected child abuse or neglect to the appropriate

authorities, and permits any other person to report suspected child abuse or

neglect. See id. Even if we were to assume that article 609 places Marier, Irvan,

and Blanco under some reporting obligation, this provision in no way creates in

Fairley a property interest in having the Board re-open its investigation and

examine her son’s body for barbiturates. The district court did not err in

concluding that Fairley failed to state a viable § 1983 claim. 

III. CONCLUSION

The judgment of the district court is AFFIRMED.