Heath v. Johnson

*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this opinion should not be published and is not precedent except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.
1 531 U.S. 356, 374 n.9 (2001).
United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50790
JAMES HEATH,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(W-02-CV-146)
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PER CURIAM:*
On appeal Plaintiff James Heath complains that the district
court erred in dismissing his claims under the ADA and FMLA for
want of jurisdiction because language in Board of Trustees of the
University of Alabama v. Garrett1 suggests that, pursuant to Ex

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2 209 U.S. 123 (1908).
-2-
parte Young,2 the Eleventh Amendment does not prohibit him from
seeking prospective injunctive relief against Johnson, the
assertedly responsible state official. Heath did not contend in
response to Johnson’s motion to dismiss that he was seeking
injunctive relief so neither Garrett nor Ex parte Young was ever
considered by the district court. Because Heath did not present
this argument to the district court, we AFFIRM the dismissal and do
not address whether Garrett and Ex parte Young apply in this case.

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