           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                     No. 07-30231                               September 11, 2007
                                   Summary Calendar
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
YORI HENRY FAIRLEY, Estate of Dion Henry

                                                  Plaintiff – Appellant
v.

LOUISIANA STATE; LOUISIANA STATE BOARD
OF MEDICAL EXAMINERS; ROBERT MARIER, MD/MHA,
officially in his capacity as Executive Director of the
Louisiana Board of Medial Examiners and Individually;
KATHLEEN BLANCO; officially in her capacity as Governor
and Individually; STEPHANIE IRVAN, officially in her
capacity as Program Compliance Officer and Individually

                                                  Defendants – Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:06-CV-6064


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Yori Henry Fairley appeals from the dismissal of a civil rights lawsuit
brought on behalf of the estate of her son, Dion Henry. Fairley sued the State


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30231

of Louisiana, the Louisiana State Board of Medical Examiners, two of its officers,
Robert Marier, M.D., and Stephanie Irvan, and Governor Kathleen Blanco,
seeking injunctive relief and damages relating to the resolution of an
administrative complaint filed against her son’s doctor. Finding dismissal of the
suit proper, we AFFIRM.
      I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       This case arises from the death of two-year old Dion Henry, who died
within days of being admitted to Ochsner Medical Center in late September
2005. After Dion’s death, his mother, Yori Henry Fairley, filed a complaint with
the Louisiana State Board of Medical Examiners (the Board), alleging that a
doctor at Ochsner had poisoned Dion with barbiturates. The Board investigated
but found no grounds for administrative action against the doctor.
       Fairley then brought this lawsuit1 against the State of Louisiana, the
Board, Robert Marier, Stephanie Irvan, and Kathleen Blanco, primarily seeking
an injunction directing the Board to re-open its investigation of Fairley’s
complaint and conduct an examination of her son’s body to determine what types
of barbiturates were present in his system when he died. She also sued Marier,
Irvan, and Blanco in their individual capacities under 42 U.S.C. § 1983, alleging
that constitutional violations were committed by the defendants in the course of
the Board’s investigation. The defendants moved for dismissal under Federal
Rule of Civil Procedure 12(b)(1) and (6) on the grounds that the Eleventh
Amendment deprived the district court of jurisdiction to grant the relief sought
against the defendants in their official capacities, and that Fairley had failed to
state a claim for which relief can be granted against the defendants in their
individual capacities. The district court granted the motion to dismiss, and
Fairley now appeals.


       1
         A separate lawsuit against various health care providers who were allegedly involved
in the child’s death is pending elsewhere.

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                                II. DISCUSSION
A.    Standard of Review
      We review de novo the district court’s order on a motion to dismiss for
failure to state a claim under Rule 12(b)(6). The “court accepts ‘all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.’” Martin
K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.
2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). To survive
a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S.
Ct. 1955, 1974 (2007). “Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Id. at 1965 (quotation marks,
citations, and footnote omitted). We employ a similar standard in reviewing
dismissals for lack of subject matter jurisdiction under Rule 12(b)(1). See Benton
v. United States, 960 F.2d 19, 21 (5th Cir. 1992).
B.    The Claims Against the Defendants in Their Official Capacities
      Fairley sought an injunction from the district court ordering the Board to
re-open its investigation and conduct an examination of her son’s body to
determine what types of barbiturates were present in his system when he died.
The district court concluded that it had no authority to grant the relief sought.
We agree.
      The Eleventh Amendment bars an individual from suing a state in federal
court unless the state consents or Congress has clearly and validly abrogated the
state’s sovereign immunity. U.S. CONST. amend. XI; see, e.g., Coll. Sav. Bank v.
Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999)
(recognizing that an individual may sue a state if the state consents or Congress
abrogates the state’s sovereign immunity pursuant to the Fourteenth
Amendment). A suit against a state agency or department is considered a suit

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                                      No. 07-30231

against the state under the Eleventh Amendment. See, e.g., Coll. Sav. Bank, 527
U.S. at 671; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
101 (1984) (“It is clear, of course, that . . . a suit in which the State or one of its
agencies or departments is named as a defendant is proscribed by the Eleventh
Amendment.”). “The Eleventh Amendment [also] bars a suit against state
officials when ‘the state is the real, substantial party in interest.’” Pennhurst,
465 U.S. at 101. “[T]he general rule is that relief sought nominally against an
officer is in fact against the sovereign if the decree would operate against the
latter.” Id. (internal citations and quotations omitted).
       Fairley does not dispute that the Board is a state agency, nor does she
plausibly contend that Louisiana has consented to suit2 or that its sovereign
immunity has been abrogated. The Eleventh Amendment therefore bars the
relief sought against the Board and the State of Louisiana.3 See Emory v. Tex.
State Bd. of Med. Exam’rs, 748 F.2d 1023, 1025 (5th Cir. 1984) (holding that the
Eleventh Amendment bars the award of damages and injunctive relief against
the Texas counterpart to the Board). And since any injunction against Marier,
Irvan, or Blanco would primarily operate against the Board, by forcing it to re-
open the investigation into the death of Fairley’s son, the state is the real,
substantial party in interest here. The Eleventh Amendment thus forecloses the
claims against Marier, Irvan, and Blanco in their official capacities.
       Fairley argues that an injunction is nonetheless available under the
doctrine of Ex parte Young, 209 U.S. 123 (1908), which permits federal courts to
award prospective injunctive relief against state officials who violate federal law.


       2
        A state’s receipt of federal funds does not automatically constitute a waiver of its
sovereign immunity; such a waiver is only recognized in limited circumstances, none of which
appear to be implicated here. See Hurst v. Tex. Dep’t of Assistive & Rehab. Servs., 482 F.3d
809, 811 (5th Cir. 2007).
       3
          To the extent that Fairley also seeks a money judgment against the defendants in
their official capacities, the Eleventh Amendment operates to bar this relief as well.

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                                       No. 07-30231

See Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.
1998). Young is inapplicable, though, because Fairley’s theory is that the Board
has failed to perform duties imposed on it by state law, not federal law.4 Federal
courts simply lack the power to order state officials to conform their conduct to
state law. Pennhurst, 465 U.S. at 106. Dismissal by the district court was
therefore proper.
C.     The Claims Against the Defendants in Their Individual Capacities
       Fairley claimed that Marier, Irvan, and Blanco are liable under § 1983
because their actions with regard to the Board’s investigation violated Fairley’s
constitutional rights. Specifically, Fairley asserted a deprivation, without due
process, of her “quasi-property” right in having her son’s body examined for
barbiturates. The district court determined that no such property right exists,
and concluded that Fairley had failed to present a viable § 1983 claim. We
agree.
       “To state a claim under § 1983, a plaintiff must (1) allege a violation of
rights secured by the Constitution or laws of the United States and (2)
demonstrate that the alleged deprivation was committed by a person acting
under color of state law.” Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th
Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.
1994)). “Our first inquiry is whether the plaintiff has alleged a violation of a
constitutional right at all.” Id. To be entitled to due process, a plaintiff must
present facts showing a deprivation of a property interest. Mahone v. Addicks
Util. Dist. of Harris County, 836 F.2d 921, 929 (5th Cir. 1988) (citing Bd. of
Regents v. Roth, 408 U.S. 564, 569–70 (1972)).


       4
         In her brief, Fairley does assert that the defendants’ alleged violations of Louisiana
law also constitute a violation of her due process rights. But as we discuss with regard to the
claims against Marier, Irvan, and Blanco in their individual capacities, this conclusion is
without merit, as Fairley has no identifiable property interest in having the Board carry out
its investigation in the manner that she wishes.

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                                 No. 07-30231

      Fairley now argues that the district court erred in ruling that she has no
property interest in having the Board carry out its investigation in the manner
she wishes. She contends that Louisiana’s child abuse reporting law, LA. CHILD.
CODE ANN. art. 609, creates a property interest. Article 609 imposes a duty on
certain individuals to report suspected child abuse or neglect to the appropriate
authorities, and permits any other person to report suspected child abuse or
neglect. See id. Even if we were to assume that article 609 places Marier, Irvan,
and Blanco under some reporting obligation, this provision in no way creates in
Fairley a property interest in having the Board re-open its investigation and
examine her son’s body for barbiturates. The district court did not err in
concluding that Fairley failed to state a viable § 1983 claim.
                              III. CONCLUSION
      The judgment of the district court is AFFIRMED.




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