   Case: 09-50796       Document: 00511042699          Page: 1    Date Filed: 03/05/2010




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

                                                 FILED
                                                                            March 5, 2010
                                     No. 09-50796
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




MICHAEL C. SMART,

                                                   Plaintiff-Appellant,

versus

ERIC HOLDER, Attorney General, Department of Justice;
KATHERINE LEHMANN,
Special Assistant U.S. Attorney, Department of Justice;
JOHNNY E. MURPHY, Acting U.S. Attorney;
UNITED STATES DEPARTMENT OF JUSTICE,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 3-09-CV-101




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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50796   Document: 00511042699      Page: 2   Date Filed: 03/05/2010

                                  No. 09-50796

      Michael Smart sued the United States Department of Justice, the Attor-
ney General, the Acting United States Attorney, and Special Assistant United
States Attorney Katherine Lehmann, claiming that Lehmann, and by extension
the other parties, violated his constitutional rights while defending against an
earlier employment discrimination lawsuit brought by Smart. The district court
dismissed all the present claims with prejudice. Smart appeals. We affirm for
essentially the reasons given by the district court.
      Smart is a former employee of the Department of the Army. After he was
terminated from his job, he sued the Secretary of the Army (“the Secretary”)
under title VII of the Civil Rights Act of 1964. Lehmann represented the Secre-
tary in that suit. The district court dismissed the suit on summary judgment,
and we affirmed. See Smart v. Geren, No. 08-50448, 2008 WL 5180334 (5th Cir.
Dec. 10, 2008) (per curiam).
      The present case is based on Lehmann’s alleged conduct during the title
VII litigation. According to Smart, Lehmann called the manager at a Texas
Workforce Commission (“TWC”) office, where Smart was using computers and
other resources to litigate his case. Smart claims Lehmann told the TWC mana-
ger that she was looking for Smart and that she asked whether the TWC re-
ceived federal funding and why the TWC was allowing Smart to use its resources
to sue the government. Shortly after that, Smart claims, the TWC announced
a policy restricting the use of its computers to work purposes.
      Based on these allegations, Smart sued Lehmann in her individual capa-
city under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging
that Lehmann had retaliated against his exercise of his First Amendment speech
rights and had violated his constitutional rights of access to the courts and pri-
vacy. Smart also sued the Attorney General and the Acting United States Attor-




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                                      No. 09-50796

ney in their official capacities and the Department of Justice,1 alleging they vio-
lated his due process rights by permitting Lehmann to defend the Secretary
while serving as an active-duty military officer. The district court dismissed the
claims against the Department of Justice, the Attorney General, and Acting
United States Attorney for lack of subject-matter jurisdiction; it dismissed the
claims against Lehmann under Federal Rule of Civil Procedure 12(b)(6), finding
that Smart had failed to allege facts supporting a claim upon which relief could
be granted.
       We review dismissal for lack of jurisdiction and for failure to state a claim
upon which relief may be granted de novo. Wagner v. United States, 545 F.3d
298, 300 (5th Cir. 2008); Carroll v. Fort James Corp., 470 F.3d 1171, 1173 (5th
Cir. 2006). To survive dismissal, a plaintiff must “plead enough facts to state a
claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
554, 570 (2007)).
       The district court properly dismissed Smart’s due process claim against
the Attorney General, the Acting United States Attorney, and the Department
of Justice, because sovereign immunity deprived the court of subject-matter jur-
isdiction. As the court rightly noted, suits against federal officers in their official
capacity are really suits against the government, and for these suits to go for-
ward, the government must waive its sovereign immunity. Boehms v. Crowell,
139 F.3d 452, 462-63 (5th Cir. 1998); S. Sog, Inc. v. Roland, 644 F.2d 376, 380
(5th Cir. Unit A May1981). Smart has not shown that the government waived
its immunity. He does not allege a state tort law theory that would allow him




       1
         The district court did not discuss Smart’s claim against the Department of Justice.
We read the court’s discussion of the claims against the Attorney General and Acting U.S. At-
torney, however, as including that claim.

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                                         No. 09-50796

to proceed under the Federal Tort Claims Act (“FTCA”),2 and, as the district
court explained, none of the other statutes cited in his pleading provides for
waiver of immunity.
       The district court also was correct to dismiss Smart’s claims against Leh-
mann. Regarding his First Amendment retaliation claim, Smart has not alleged
conduct resulting in an injury that would “chill a person of ordinary firmness
from continuing to engage in [protected] activity.” Keenan v. Tejada, 290 F.3d
252, 258 (5th Cir. 2002). It would be necessary to show such conduct to prove re-
taliation. Id. Nor was Smart’s constitutionally-protected right of access to the
courts impeded. We have not extended that right of access beyond the ability to
institute suit; in this case, Smart was able to institute both his title VII suit and
the present claims. See Foster v. City of Lake Jackson, 28 F.3d 425, 430 n.7 (5th
Cir. 1994).
       The district court also correctly dismissed Smart’s constitutional right-to-
privacy claim.3 Smart has not alleged facts indicating Lehmann interfered with
any of “the personal intimacies of the home, the family, marriage, motherhood,
procreation, and child rearing,” which the right to privacy protects. Paris Adult
Theatre I v. Slaton, 413, U.S. 49, 65 (1973).
       Finally, Smart asks us to address the applicability of the stay provision of
the Servicemembers Civil Relief Act (“SCRA”), 50 U.S.C. app. § 522, to a Bivens


       2
        On appeal, Smart argues that if given the opportunity to amend his complaint further,
he would allege a Texas state tort claim under the FTCA. Smart suggests he would bring a
claim for negligent supervision based on Texas Civil Remedies and Practices Code § 101.021.
That provision, however, does not establish tort liability for individuals. Rather, it is a limited
waiver of state sovereign immunity for situations inapplicable to the present case: “property
damage, personal injury, or death aris[ing] from the operation or use of a motor-driven vehicle
or motor-driven equipment.” Thus, even if he amended his complaint as he requests, Smart
would still fail to state a plausible claim establishing jurisdiction.
       3
        The court liberally construed various claims in Smart’s pleading under the Posse Com-
itatus Act, 18 U.S.C. § 1385, and the Fourth and Fifth Amendments as a constitutional privacy
claim. That was the most appropriate way to interpret Smart’s pleading.

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suit against a servicemember performing a civil detail, as was the case when
Lehmann worked to defend the Secretary of the Army. Lehmann did not invoke
the SCRA’s stay provision in this case, so we need not address that question.
       The district court dismissed all of Smart’s claims with prejudice. Although
a court should review pro se pleading less stringently and offer plaintiffs leave
to amend their complaints, “[a]t some point a court must decide that a plaintiff
has had fair opportunity to make his case; if, after that time, a cause of action
has not been established, the court should finally dismiss the suit.” Jacquez v.
Procunier, 801 F.2d 789, 792 (5th Cir. 1986). Smart had a chance to file an ini-
tial complaint, an amended complaint, a reply to defendants’ motion to dismiss,
and an additional sur-reply to the defendants’ response to his reply. He has had
no lack of opportunity to make his case; dismissal with prejudice was appropri-
ate.
       AFFIRMED.




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