               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-51090
                         Summary Calendar



WAYNE J. REITER,

                                              Plaintiff-Appellant,

versus


WILLIAM TREACY; K. MICHAEL CONAWAY;
TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY,

                                             Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                         (A-99-CV-224-JN)
                       --------------------
                           June 7, 2000

Before POLITZ, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Wayne J. Reiter appeals from the district

court’s dismissal of his claims with prejudice, rather than without

prejudice. He also asserts on appeal that the district court erred

in not granting his motion for extensions of time within which to

conduct discovery and to respond to Defendants-Appellees Treacy and

Conaway’s motion for summary judgment. We find no reversible error

in the court’s failure to grant Reiter a 60-day extension of time



     *
        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that this opinion should not be published and is not precedent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.
to conduct discovery; and we modify the district court’s judgment

and affirm it as modified.

     Reiter argues that the district court’s dismissal of his

claims with prejudice was error, insisting that claims barred by

Eleventh     Amendment   immunity    may   be     dismissed     only    without

prejudice.     "Because sovereign immunity deprives the court of

jurisdiction, the claims barred by sovereign immunity can be

dismissed    only   under   Rule   12(b)(1)     and    not   with   prejudice."

Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (1996).               Reiter is

therefore correct that the district court erred in dismissing his

claims against the Board with prejudice.              As the dismissal itself

has not been challenged, we modify the district court’s judgment to

be without prejudice, and affirm it as modified.

     Reiter also argues that the district court’s dismissal with

prejudice of his claims against Treacy and Conaway was error to the

extent that the district court dismissed the claims against the

individual defendants in their official capacities.                 The district

court expressly stated, however, that it perceived no claims

against those individuals in their official capacities and was

addressing Reiter’s claims against Treacy and Conaway only in their

individual capacities and dismissing them on grounds of qualified

immunity.     As Reiter has neither challenged the dismissal of his

individual capacity claims nor contended that the district court

erred in construing his complaint, we discern no error and consider

this issue no further.      See United States v. Brace, 145 F.3d 247,

255 (5th Cir.)(en banc), cert. denied, 525 U.S. 973 (1998).                 The


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district court’s dismissal with prejudice of the claims against

Treacy and Conaway in their individual capacities for qualified

immunity is affirmed, and Reiter has failed to brief the issue of

these individuals’ official capacities, so such claims are waived.

Moreover, to the extent that his claims against the individuals

could have been deemed to be asserted against them in their

official capacities, such claims are construed to be asserted

against the state and would have been subject to the same Eleventh

Amendment dismissal without prejudice as to the Board if Reiter had

preserved such dismissals on appeal —— which, again, he has not.

     Finally, Reiter argues that the district court erred by not

granting him a 60-day extension of time in which to respond to

Treacy and Conaway’s motion for summary judgment.              A district

court’s denial of discovery is reviewed for abuse of discretion.

Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1291 (5th Cir. 1994).        Here,

the district court did not abuse its discretion in denying Reiter

more time for   discovery.   Reiter’s motion for an extension of time

expressly sought only 14 days to respond to the motion for summary

judgment, which the district court granted.        The court did not

specifically mention the 60 days sought for discovery, but we find

no abuse of discretion in the court’s failure to extend the time

further for Reiter to conduct discovery.

     The   district   court’s   decision   dismissing   with    prejudice

Reiter’s claims against the Texas State Board of Public Accountancy

is modified to be without prejudice and affirmed as thus modified.

The court’s dismissal with prejudice of Reiter’s claims against


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William   Treacy   and   K.   Michael   Conaway   in   their   individual

capacities on grounds of qualified immunity is affirmed, as is the

court’s dismissal of those defendants in their official capacities,

for Reiter’s failure to preserve that issue on appeal.

DISMISSAL AFFIRMED, but without prejudice as to the Texas State

Board of Public Accountancy.




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