Russell v. State of TX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-11191
Summary Calendar

SAMUEL T. RUSSELL,

Plaintiff - Appellant

v.

STATE OF TEXAS, Education Agency,

Defendant - Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-430

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
Plaintiff–appellant Samuel Russell, a resident of Texas, sued defendant–
appellee the State of Texas in federal district court. Claiming that Texas failed
to answer his complaint timely, Russell moved for a default judgment.
1
The
district court denied the motion, and another panel of this court dismissed

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
1
Texas maintains that it was improperly served. This dispute is immaterial to our
resolution of the case.
United States Court of Appeals
Fifth Circuit
FILED
April 8, 2020

Lyle W. Cayce
Clerk
Case: 19-11191 Document: 00515375386 Page: 1 Date Filed: 04/08/2020

No. 19-11191
2
Russell’s interlocutory appeal for lack of appellate jurisdiction. The district
court subsequently dismissed the lawsuit on sovereign-immunity grounds. Cf.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n the
absence of consent a suit in which [a] State or one of its agencies or
departments is named as the defendant is proscribed by the Eleventh
Amendment.”).
In his principal brief on appeal, Russell, pro se, argues that his motion
for a default judgment should have been granted, but he fails to address the
basis for the district court’s adverse judgment, sovereign immunity. Then, in
his reply, Russell argues that the Eleventh Amendment, by its plain language,
bars suits against states only “by Citizens of another State, or by Citizens or
Subjects of any Foreign State,” U.S. Const. amend. XI. As a citizen of Texas,
Russell asserts that the Eleventh Amendment does not bar him from suing
Texas.
Russell’s argument has been foreclosed for well over a century. See Hans
v. Louisiana, 134 U.S. 1, 10-16 (1890); see also Pennhurst, 465 U.S. at 98 (“[I]n
Hans v. Louisiana, the Court held that, despite the limited terms of the
Eleventh Amendment, a federal court could not entertain a suit brought by a
citizen against his own State.” (citation omitted)). Because Russell does not
show that Texas has consented to his suit, or that Congress has abrogated
Texas’s sovereign immunity in this context, cf. Pennhurst, 465 U.S. at 99, his
suit cannot proceed.
The judgment of the district court is AFFIRMED.
Case: 19-11191 Document: 00515375386 Page: 2 Date Filed: 04/08/2020