IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31216

Summary Calendar

BARBARA B. LUMPKINS, 

 Plaintiff–Appellant,

v.

OFFICE OF COMMUNITY DEVELOPMENT / LOUISIANA ECONOMIC 

DEVELOPMENT & DISASTER RECOVERY UNIT; SMALL RENTAL 

PROPERTY AND HAZARD MITIGATION GRANT PROGRAMS, officially; 

NEW ORLEANS CITY; DEPARTMENT OF SAFETY & PERMITS; PAUL D. 

RAINWATER, in his capacity as Administrator and personally; MATTHEW 

THOMEY, officially and personally; JONATHAN SHENSKY, in his capacity 

as Contract Liaison and personally; KRISTIE JONES, in her capacity as 

Mitigation Representative and personally; RAY RODRIGUEZ, officially and 

personally, 

 Defendants–Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CV-06646

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

 

* 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

July 16, 2015

Lyle W. Cayce

Clerk

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Appellant Barbara Lumpkins sued various Louisiana state agencies and 

officials tasked with disbursing funds to assist homeowners in protecting their 

homes from natural disasters. The district court dismissed Lumpkins’s federal 

claims on grounds that she failed to state a claim upon which relief could be 

granted and declined to exercise supplemental jurisdiction over her remaining 

state-law claims. We affirm.

I

Lumpkins owned interests in three residential and rental properties in 

New Orleans, which were damaged during Hurricane Katrina. She applied for 

disaster relief aid from the Small Rental Property and Hazard Mitigation 

Grant programs, which are administered by the Disaster Recovery Unit of the 

Office of Community Development (OCD/DRU), a Louisiana state agency. 

After Lumpkins certified that she met certain qualifications, OCD/DRU 

awarded her $116,000 to repair her Rampart Street property, $210,000 for her 

Urville Street property, and $190,000 for her Tulsa Street property. She was 

to receive initial disbursements of $94,000, $150,000, and $66,000 for those 

respective properties.

To carry out the repairs and flood-mitigation work, Lumpkins contracted 

with JCJ Industries, Inc., a company that OCD/DRU determined eligible to 

participate in the Small Rental Property and Hazard Mitigation Grant 

programs. The parties later discovered that JCJ should not have received

money through the programs because it lacked the required licensure. 

Following OCD/DRU’s approval of Lumpkins’s grant, Lumpkins conferred a 

power of attorney upon JCJ’s president, James A. Littles, authorizing him to 

“act for [her] . . . and for [her] welfare as it relates to the execution of the 

[Hazard Mitigation Grant Program] documents, agreements, covenants and 

affidavits for which [Lumpkins] is an applicant . . . for the construction, 

rehabilitation, raising or demolishing [of Lumpkins’s property].” Apparently 

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operating under this power of attorney, JCJ and Littles requested and directly 

received the various sums earmarked for repair of Lumpkins’s properties. 

Lumpkins claims that JCJ and Littles defrauded her of the entire $94,000 

disbursement and $85,000 of the $150,000 disbursement.

In the following months, OCD/DRU repeatedly requested that Lumpkins 

file payment verification forms to document how the grant money was being 

spent. Because Lumpkins failed to respond to the agency’s requests, it warned 

her that it might act to recover the funds she had received. OCD/DRU also 

informed Lumpkins that the agency might take “action up to and including 

loan repayment or foreclosure” because she was failing to meet certain 

OCD/DRU requirements.

In response, Lumpkins filed the instant suit in federal district court. She

brings claims under 42 U.S.C. §§ 1983 and 1985, alleging that certain 

OCD/DRU officials negligently awarded her grant money to an unlicensed 

business entity, and then “concocted a scheme” to blame her for their negligent 

conduct. She also sued the City of New Orleans under state law, alleging that 

the City, without her authorization, issued unlawful permits to JCJ to perform 

demolition and construction work on her properties, that the City unlawfully 

imposed liens against her property, and that it failed to monitor JCJ’s 

performance. 

The Defendants filed a combined Rule 12(b)(1) motion to dismiss for lack 

of subject matter jurisdiction and Rule 12(b)(6) motion to dismiss for failure to 

state a claim. Lumpkins then filed a motion for leave to amend her complaint. 

The court dismissed with prejudice all federal claims on grounds that 

Lumpkins failed to state a claim upon which relief could be granted. The court 

then exercised its discretion to decline to assert supplemental jurisdiction over 

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Lumpkins’s state-law claims,1 and accordingly dismissed these claims for lack 

of subject matter jurisdiction. Finally, the court denied as moot Lumpkins’s 

request to amend her complaint. Lumpkins now appeals.

II

We review a district court’s grant or denial of a Rule 12(b)(6) motion to 

dismiss de novo, “accepting all well-pleaded facts as true and viewing those 

facts in the light most favorable to the plaintiff.”2 To survive a 12(b)(6) motion, 

“a complaint must contain sufficient factual matter, accepted as true, to ‘state 

a claim to relief that is plausible on its face.’”3 For a claim to be facially 

plausible, a plaintiff must plead “factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct 

alleged.”4

We review for abuse of discretion the district court’s denial of a motion 

for leave to amend a complaint.5

III

To state a claim under 42 U.S.C. § 1983, Lumpkins must establish that 

a person, acting under color of law, deprived her of “rights, privileges, or 

immunities secured by the Constitution and laws” of the United States.6 State 

 

1 See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental 

jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims 

over which it has original jurisdiction[.]”).

2 Hines v. Alldredge, 783 F.3d 197, 200-01 (5th Cir. 2015) (quoting True v. Robles, 571 

F.3d 412, 417 (5th Cir. 2009)).

3 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2006)).

4 Id. (citing Twombly, 550 U.S. at 556).

5 Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013) (per curiam) (citing Wilson v. 

Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010)).

6 42 U.S.C. § 1983; Equal Access for El Paso, Inc. v. Hawkins, 562 F.3d 724, 727 n.3 

(5th Cir. 2009).

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agencies and state officials acting in their official capacities are not “persons” 

within the meaning of the statute.7 The parties do not dispute that OCD/DRU 

is a state agency, or that defendants Shensky, Jones, and Rodriguez are 

OCD/DRU employees. Accordingly, the district court did not err in dismissing 

Lumpkins’s claims against the agency, or against the state officials in their 

official capacities.

Lumpkins’s claims against OCD/DRU and the state officials in their 

official capacities also fail because these parties are shielded by sovereign 

immunity. “The Eleventh Amendment bars an individual from suing a state 

in federal court unless the state consents to suit or Congress has clearly and 

validly abrogated the state's sovereign immunity.”8 Sovereign immunity 

protects not just the state itself, but also “any state agency or entity deemed 

an ‘alter ego’ or ‘arm’ of the state.”9 Moreover, “a suit against a state official in 

his or her official capacity is not a suit against the official but rather is a suit 

against the official’s office.”10 Here, because the State did not waive sovereign 

immunity with respect to OCD/DRU or any officials in their official capacities, 

the Eleventh Amendment bars Lumpkins’s claims against those parties.

The Eleventh Amendment also bars some of Lumpkins’s claims against 

the state officials in their individual capacities. Whether the litigant sues the 

officials or the state itself, the Eleventh Amendment bars recovery if a money 

 

7 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989) (“We hold that 

neither a State nor its officials acting in their official capacities are “persons” under § 1983.”); 

see also id. at 60-61 (treating the Department of State Police as the State for purposes of 

§ 1983 liability).

8 See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002) (citing U.S.

CONST. amend. XI).

9 Id. (quoting Vogt v. Bd. of Comm’rs, 294 F.3d 684, 688-89 (5th Cir. 2002)).

10 Will, 491 U.S. at 71.

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judgment would be paid from the state treasury.11 Here, Lumpkins seeks to 

force the officials to disburse the remainder of her grant award, “in their 

custody, possession and control [and to] which she is entitled.” But because 

the balance of her award would be paid from the Louisiana treasury, the 

district court did not err in concluding that the Eleventh Amendment bars this 

claim.

To the extent Lumpkins seeks to hold the officials individually liable for 

negligently awarding her grant money to JCJ, she has failed to state a claim. 

Regardless of any negligent error committed by the officials, “negligence on the 

part of state officials does not suffice to make out any due process violation 

under the Fourteenth Amendment.”12 This prohibition applies with equal 

force, whether Lumpkins asserts a deprivation of a liberty or a property 

interest.13 The district court did not err in granting the officials’ motion to 

dismiss on this ground.

Insofar as Lumpkins asserts the agency officials conspired to blame her 

for their negligent conduct, she supports her theory with a sole factual 

allegation: that one of the agency officials, Kristie Jones, “is a personal friend 

of [the] Christy S. Morgan family,” which owns a subsidiary of JCJ. But 

 

11 Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[W]hen the action is in essence one 

for the recovery of money from the state, the state is the real, substantial party in interest 

and is entitled to invoke its sovereign immunity from suit even though individual officials 

are nominal defendants.” (alteration in original) (quoting Ford Motor Co. v. Dep’t of Treasury, 

323 U.S. 459, 464 (1945), overruled on other grounds by Lapides v. Bd. of Regents, 535 U.S. 

613 (2002))); see Fontenot v. McCraw, 777 F.3d 741, 753-55 (5th Cir. 2015) (explaining that 

private parties generally may not sue state officials seeking to obtain funds allegedly wrongly 

withheld by the state).

12 Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634-35 (5th Cir. 1999) 

(quoting Feagley v. Waddill, 868 F.2d 1437, 1440 (5th Cir. 1989)); see Daniels v. Williams, 

474 U.S. 327, 328 (1986) (“We conclude that the Due Process Clause is simply not implicated 

by a negligent act of an official causing unintended loss of or injury to life, liberty, or 

property.”).

13 See Daniels, 474 U.S. at 328.

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Lumpkins does not allege that any agreement existed between Jones and the 

Morgan family, or that either party improperly benefited from the assignment 

of the award money to JCJ. Such a meager factual allegation is insufficient to 

provide “plausible grounds to infer an agreement,” such that her conspiracy 

claim cannot survive a motion to dismiss.14

Lumpkins also alleges that the State deprived her of a protected interest

by defaming her character. She has failed to allege that any state officials have 

publicized any false information about her, or otherwise participated in any 

behavior that could be considered defamatory. “Threadbare recitals of the 

elements of a cause of action,” unsupported by factual allegations, are 

insufficient to allow a claim to survive a motion to dismiss.15 The district court 

did not err in dismissing Lumpkins’s defamation claim brought via the 

Fourteenth Amendment.

Lumpkins additionally claims that a number of procedural defects 

fatally afflicted the fairness of the proceedings in the district court. Lumpkins 

asserts, for example, that Judge Berrigan should be disqualified under 

28 U.S.C. §§ 144 and 455. But Lumpkins failed to follow § 144’s procedures to 

petition for judicial disqualification and, in any case, her asserted grounds for 

judicial bias—that counsel for the State filed a “scandalous pleading”—is 

wholly irrelevant to Judge Berrigan’s impartiality. Accordingly, she is not 

entitled to relief on this ground. Nor was her Seventh Amendment right to 

trial by jury violated, because “[d]ismissal of [a] claim[] pursuant to a valid 

12(b)(6) motion does not violate [a party’s] right to a jury trial under the 

 

14 Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (explaining that unfounded 

conspiracy allegations do not, “without some further factual enhancement,” render a claim 

plausible); Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 375 (5th 

Cir. 2014) (explaining that a plaintiff alleging the existence of a conspiracy must plead 

“specific facts demonstrating an intention . . . to engage in a conspiracy” (emphasis omitted)).

15 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Seventh Amendment.”16 Her claim that dismissal under 12(b)(6) violates her 

First Amendment right to petition for redress of grievances fails because she 

has not been denied the right to air her grievances before the courts.17 Her 

claim that the dismissal violates her Fifth Amendment right to engage in 

discovery fails because she has not made a plausible showing that she is 

entitled to relief.18

Lumpkins also assigns error to the district court’s denial of her motion 

for leave to amend her complaint. She correctly observes that generally, “a pro 

se litigant should be offered an opportunity to amend [her] complaint before it 

is dismissed.”19 But as the district court noted, leave to amend is not required 

where the plaintiff has already pleaded her best case.20 The district court 

concluded that Lumpkins “has pleaded her best case because an amendment 

could not cure the problems from which her due process claims suffer.” No set 

of facts could render her negligence-based claims legally plausible. She has 

not identified any conduct plausibly tending to show that the state officials 

conspired to blame her for their alleged error in awarding the grant money to 

JCJ. The district court did not abuse its discretion in denying her motion for 

leave to amend her complaint.

 

16 Haase v. Countrywide Home Loans, Inc., 748 F.3d 624, 631 n.5 (5th Cir. 2014) 

(citation omitted).

17 See generally 16A AM. JUR. 2D Constitutional Law § 566 (2015) (“The right to 

petition, in conjunction with the right of assembly, has been described as the enabling clause 

of the First Amendment, as the right to petition safeguards citizens’ exercise of their other 

First Amendment rights to free speech, press, and religion.” (footnotes omitted)).

18 See Doe v. Robertson, 751 F.3d 383, 393 (5th Cir. 2014) (“‘[A] plaintiff armed with 

nothing more than conclusions’ cannot ‘unlock the doors of discovery.’” (quoting Iqbal, 556 

U.S. at 678-79)).

19 Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009) (per curiam) (citing Bazrowx 

v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam)).

20 Id. at 768.

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Finally, Lumpkins claims that the district court erred by dismissing her 

state-law claims for lack of subject-matter jurisdiction on grounds that she 

pleaded sufficient facts to establish diversity jurisdiction. Under 28 U.S.C. 

§ 1653, Lumpkins is entitled to assert diversity jurisdiction for the first time 

on appeal.21 We equate § 1653 with Federal Rule of Procedure 15(a) and, 

accordingly, liberally grant leave to amend “unless the movant has acted in 

bad faith or with a dilatory motive, granting the motion would cause prejudice, 

or amendment would be futile.” 22 We also consider concerns of judicial 

economy and effective case management.23

Lumpkins, as the party asserting federal jurisdiction, bears the burden 

of establishing diversity of citizenship.24 Despite having been placed squarely 

on notice of the jurisdictional defects in her complaint, Lumpkins has still 

failed to affirmatively allege the citizenship of the parties.25 Because 

remanding to the district court would unnecessarily drain judicial resources, 

we decline to grant Lumpkins leave to amend her complaint.

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

 

21 See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon 

terms, in the trial or appellate courts.”); Jebaco, Inc. v. Harrah's Operating Co., 587 F.3d 314, 

322-23 (5th Cir. 2009); Whitmire v. Victus Ltd. T/A Master Design Furniture, 212 F.3d 885, 

887 (5th Cir. 2000) (“A plaintiff may correct a failure to set forth diversity as an alternate 

basis for jurisdiction by amending her complaint pursuant to 28 U.S.C. § 1653.”).

22 Jebaco, 587 F.3d at 322.

23 Id.

24 See Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).

25 See Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1989).

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