                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 17, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-50502
                         Summary Calendar



LI YU, Administrator of Deceased Wei Wu’s Estate,

                                    Plaintiff-Appellant,

versus

RICK PERRY, in his official capacity only as the Governor of the
State of Texas; DARLENE BYRNE, Individually and in her official
capacity as Judge of Texas Court; GREG ABBOTT, Texas Attorney
General, in his official capacity as Texas Attorney General; JOHN
CORNYN, in his individual capacity,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. A-02-CV-157-SS
                       --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Li Yu appeals the district court’s dismissal of her civil

rights complaint alleging that certain Texas statutes were

unconstitutional and that the named defendants violated various

constitutional rights.




     *
        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that this opinion should not be published and is not precedent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. 03-50502
                                -2-

     Yu sued Governor Rick Perry in the name of the state of

Texas and in his official capacity.   To the extent that Yu’s

complaint is against the State of Texas itself, the state is

immune from suit under the 11th Amendment.   See Employees v.

Missouri Public Health & Welfare Department, 411 U.S. 279, 280

(1973).   To the extent Yu seeks damages from Perry in his

official capacity, he is immune from such claims.   See Hafer v.

Melo, 502 U.S. 21, 27 (1991).

     Yu also seeks prospective injunctive relief preventing the

enforcement of the allegedly unconstitutional statutes; however,

because she has not shown that either Governor Perry or Attorney

General Abbot has a “particular duty to enforce the statute in

question and a demonstrated willingness to exercise that duty,”

the district court properly dismissed her official capacity

claims against both officials.   See Okpalobi v. Foster, 244 F.3d

405, 416 (5th Cir. 2001) (en banc).

     Yu also argues that the district court erred in not granting

a default judgment against Governor Perry.   The entry of a

default judgment is committed to the discretion of the district

court; a party is not entitled to a default judgment as a matter

of right even when the defendant is technically in default.

See Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996); Mason v.

Lister, 562 F.2d 343, 345 (5th Cir. 1977).   Even if a party

fails to answer the complaint, the district court cannot enter

a default judgment if it lacks subject matter jurisdiction.
                            No. 03-50502
                                 -3-

See United States v. Texas Tech Univ., 171 F.3d 279, 285 n.9, 288

(5th Cir. 1999) (Eleventh Amendment immunity deprives court of

subject matter jurisdiction); Forsythe v. Saudi Arabian Airlines,

885 F.2d 285, 288 n.6 (5th Cir. 1989) (“a party cannot waive

subject matter jurisdiction by its silence.”).   As discussed

above, because the district court properly dismissed Yu’s claims

against Governor Perry, it did not abuse its discretion by

refusing to enter a default judgment.

     Yu’s claims against Judge Byrne were also properly

dismissed.   Judicial officers are entitled to absolute immunity

from claims arising out of acts performed in the exercise of

their judicial functions.   Mays v. Sudderth, 97 F.3d 107, 110-11

(5th Cir. 1996).   Judicial immunity may be overcome only by

showing that the actions complained of were nonjudicial in nature

or were taken in the complete absence of all jurisdiction.

Mireless v. Waco, 502 U.S. 9, 11-12 (1991).   Yu has not shown

that Judge Byrne lacked jurisdiction or that her actions were

nonjudicial in nature.

     Yu’s claims against former Texas Attorney General John

Cornyn in his individual capacity also were properly dismissed.

Yu has not shown that Cornyn had any personal involvement other

than his role as Attorney General; however, a supervisor may not

be held liable for a civil rights violation under a theory of

respondeat superior or vicarious liability.   See Stewart v.

Murphy, 174 F.3d 530, 536 (5th Cir. 1999).

     AFFIRMED.
