              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT



                             No. 97-40017



TIMOTHY A AGUILAR; ET AL
                                            Plaintiffs

TIMOTHY A AGUILAR
                                            Plaintiff - Appellant

                                versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Company Departments, UNIDENTIFIED WOODS, Sergeant, Coffield Unit;
UNIDENTIFIED WILBANKS, Sergeant, Coffield Unit

                                            Defendants-Appellees



          Appeals from the United States District Court
                for the Eastern District of Texas


                           November 13, 1998

Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Aguilar and several other Texas state prisoners filed a § 1983

action complaining that prison officials denied them access to the

courts, placed them in punitive segregation, confiscated their

personal and legal property, and falsely accused them of being

prison gang leaders as an excuse for violating their civil rights.

The prisoners maintained that these actions resulted from the

prison officials’ discrimination against Hispanics.      The district
court   dismissed    with   prejudice       all   of   Aguilar’s    complaints,

reasoning that the claims were barred by the Eleventh Amendment.

We AFFIRM.



                                       I.



       First, Aguilar contends that the magistrate judge erred by

denying him leave to amend his complaint.              Prior to any defendant

filing an answer to the original complaint, Aguilar filed a motion

to amend his complaint.       The magistrate judge denied the motion.

The magistrate noted that Aguilar’s co-plaintiffs, who were not

mentioned in the proposed amended complaint, had not signed the

proposed amended complaint and that the new complaint included only

claims relating to Aguilar.         The magistrate judge also pointed out

that    the   proposed    amended    complaint     sought   to     add    six   new

defendants    who   had   little    connection     with   the    events    in   the

original complaint and to add new claims concerning incidents that

occurred after the original complaint was filed.                 The magistrate

concluded that adding new defendants and claims that had nothing to

do with the original complaint would be inefficient and possibly

confusing.    He also determined that it would be unfair to the other

plaintiffs to allow Aguilar to effectively drop their claims by

amending the complaint to allow only his claims.




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     Aguilar maintains that he did not attempt to have the other

plaintiffs join the amendment because he was under the impression

that the district court had entered an order stating that it would

not accept any filings from the other plaintiffs.                  In fact, the

district court had entered such an order: the court would not

accept any of the co-plaintiffs’ filings, other than a motion for

extension of time, until they complied with the court’s requirement

that they provide the appropriate in forma pauperis material.

     A court’s denial of leave to amend a complaint is usually

reviewed for abuse of discretion.                See Ashe v. Corley, 992 F.2d

540, 542 (5th Cir. 1993).              However, “[a] party may amend the

party’s pleading once as a matter of course at any time before a

responsive pleading is served . . . .”             FED. R. CIV. P. 15(a).     This

rule implies that the court has no discretion to deny such an

amendment.    See Vernell for and on Behalf of Vernell v. United

States Postal Serv., 819 F.2d 108, 110 (5th Cir. 1987), overruled

on other grounds, McGuire v. Turnbo, 137 F.3d 321 (5th Cir. 1998).

     No cases in this circuit have addressed directly whether a

court has any discretion to deny a party’s right to amend the

complaint before the filing of a responsive pleading because

signatures of co-plaintiffs were not present.               While under normal

circumstances a plaintiff would have an absolute right to amend his

complaint    before    the    filing    of   a    responsive   pleading,    these

circumstances    are    not    normal.       In    this   case,   Aguilar’s   co-


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plaintiffs did not join in the motion to amend.       The original

complaint belonged to these plaintiffs as well as to Aguilar;

allowing Aguilar to amend the complaint without any indication that

the other plaintiffs agreed to the motion could have prejudiced

their action. Thus, the magistrate did not abuse his discretion by

refusing Aguilar’s motion to amend.



                                II.



     The district court did not err in finding that the Eleventh

Amendment bars Aguilar’s claims.       The Eleventh Amendment bars

claims against a state brought pursuant to 42 U.S.C. § 1983.   See

Farias v. Bexar County Bd. of Trustees for Mental Health Mental

Retardation Servs., 925 F.2d 866, 875 n.9 (5th Cir. 1991). Section

1983 does not waive the states’ sovereign immunity, see Quern v.

Jordan, 440 U.S. 332, 338 n.7 (1979), and Texas has not consented

to this suit.   See Emory v. Texas State Bd. of Med. Exam’rs, 748

F.2d 1023, 1025 (5th Cir. 1984).

     The Eleventh Amendment also bars a suit against a state

official when “the state is a real, substantial party in interest.”

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02

(1984)(citations omitted).   Thus,

     [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. And, as
     when the State itself is named as the defendant, a suit

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     against state officials that is in fact a suit against a
     State is barred regardless of whether it seeks damages or
     injunctive relief.

Id. (citations omitted).

     In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court

carved out an exception to Eleventh Amendment immunity.              The Court

held that enforcement of an unconstitutional law is not an official

act because a state can not confer authority on its officers to

violate the Constitution or federal law.          See American Bank & Trust

Co. of Opelousas v. Dent, 982 F.2d 917, 920-21 (5th Cir. 1993).             To

meet the Ex Parte Young exception, a plaintiff’s suit alleging a

violation of federal law must be brought against individual persons

in their official capacities as agents of the state, and the relief

sought must be declaratory or injunctive in nature and prospective

in effect.     See Saltz v. Tennessee Dep’t of Employment Sec., 976

F.2d 966, 968 (5th Cir. 1992).

     Aguilar    argues   on   appeal       that   Texas   is   not   the   real

substantial party in interest in his suit; rather, his claims for

injunctive relief are against the state officials who implemented

the alleged unconstitutional Texas Department of Criminal Justice -

Institutional Division (“TDCJ-ID”) policies.              Aguilar’s original

petition demonstrates, however, that he sued TDCJ-ID itself for

injunctive relief, not any state official in his or her individual

capacity as an agent of the state.          And, as an instrumentality of




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the state, TDCJ-ID is immune from Aguilar’s suit on Eleventh

Amendment grounds.   See Farias, 925 F.2d at 875 n.9.



                               III.



     For the foregoing reasons, we AFFIRM the order of dismissal.




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