           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 28, 2009

                                     No. 09-20207                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MARVINELL HARLAN and GREGORY HARLAN

                                                   Plaintiffs-Appellants
v.

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
RALPH ROUSE, Individual Capacity; KENDRICK SMALL, Attorney,
Individual Capacity; TAMARA MILLER, Deputy Director, Individual
Capacity; TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY
SERVICES (CPS); JANICE PETRY, FAD Program Director, Individual
Capacity; RANDY JOINER-HOUSTON, CPS Director, Individual Capacity;
THOMAS CHAPMOND, Executive Director, Individual Capacity; BETTY
HABLE, Ombudsman Director, Individual Capacity

                                                   Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-1943


Before DAVIS, SMITH and DENNIS, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 09-20207

      Plaintiffs Marvinell and Gregory Harlan appeal the dismissal of their suit
on defendants’ motion to dismiss. Plaintiffs claim that the defendants violated
their constitutional rights when the Texas Department of Family and Protective
Services (“DFPS”) removed a minor child from their foster care. We agree with
the district court’s disposition of this case.
      The district court correctly ruled that it did not have subject matter
jurisdiction over the Department of Health and Human Services because the
department’s sovereign immunity protects the federal government from this suit.
Absent an express waiver of immunity, the United States, its departments and
employees in their official capacities are immune from suit. Hercules Inc. v.
United States, 516 U.S. 417, 422 (1996); In re Supreme Beef Processsors, Inc., 468
F.3d 248, 251-252 (5th Cir. 2006). Similarly, the claims against the Texas DFPS
are barred by the Eleventh Amendment which deprives federal courts of
jurisdiction to hear a suit by a private citizen against a state in federal court.
Alabama v. Pugh, 438 U.S. 781, 781-82 (1978); Okpalobi v. Foster, 244 F.3d 405,
411 (5th Cir. 2001).
      The district court also correctly dismissed the three federal employees,
Small, Rouse and Miller, for failure to state a claim and the individual state
defendants, Petrey, Joiner, Chapmond and Hable, on the basis of qualified
immunity. Plaintiffs failed to plead sufficient facts to demonstrate that the
defendants’ conduct violated any constitutional right. The plaintiffs’ adoption
of the minor child was never consummated. The plaintiffs cite no authority,
clearly established or otherwise, that indicates that they had any protected
constitutional rights or interests related to that child. Moreover, plaintiffs’
failure to show that the defendants violated any of plaintiff’s constitutional
rights precludes all of their claims.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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No. 09-20207




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