                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                                                                July 10, 2003
                IN THE UNITED STATES COURT OF APPEALS
                                                          Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                     Clerk


                            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




     *
      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this opinion should not be published and is not precedent except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).
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.




     2
         209 U.S. 123 (1908).

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