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

                                               FILED
                                                                        October 29, 2009

                                    No. 09-10395                     Charles R. Fulbruge III
                                  Summary Calendar                           Clerk



ROBERT MAY,

                                                 Plaintiff - Appellant
v.

NORTH TEXAS STATE HOSPITAL, et al.,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 7:08-cv-25


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Robert May, pro se, appeals the dismissal of his 42 U.S.C. § 1983
complaint. We AFFIRM.
       On March 5, 2008, Robert May filed a civil rights complaint asserting
various claims against North Texas State Hospital and several other defendants.
At the time this complaint was filed, May was a psychiatric patient at North
Texas State Hospital.


*
 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10395

      On November 7, 2008, all but one of May’s claims were dismissed as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). In his remaining claim, May
contended that he was unlawfully forced to take psychiatric medication while
confined at North Texas State Hospital. He sought damages and injunctive
relief in the form of his immediate release as well as the closure of the entire
facility. This claim was subsequently dismissed for failing to state a claim upon
which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
      Because May is proceeding pro se, his pleadings will be liberally construed.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007). May’s request for immediate
release was mooted when he was released from the hospital in July 2008. Even
with a generous reading, the only remaining claim is against the North Texas
State Hospital for forcing him to take psychiatric medication.
      We review a dismissal pursuant to Section 1915(e)(2)(b)(ii) using the same
de novo standard applicable to dismissals pursuant to Federal Rule of Civil
Procedure 12(b)(6). Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). We
will consider the plaintiff’s allegations to be true, then affirm only if no relief
could be granted on the facts alleged. Id.
      North Texas State Hospital is a division of the Texas Department of
Mental Health and Mental Retardation. See T EX. H EALTH & S AFETY C ODE §
532.001(b)(8).   It is therefore a state agency for the purpose of Eleventh
Amendment immunity. See Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069
(5th Cir. 1981) (holding that Rusk State Hospital, exclusively controlled by the
same Texas department, was a state agency for Eleventh Amendment purposes).
Absent an express waiver, the Eleventh Amendment precludes suits in which a
state agency is named as a defendant.         Pennhurst State Sch. & Hosp. v.


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                                 No. 09-10395

Halderman, 465 U.S. 89, 100 (1984). There is no suggestion that Texas has
waived its Eleventh Amendment immunity in this case.
      There is a narrow exception to Eleventh Amendment immunity. See Ex
Parte Young, 209 U.S. 123 (1908). It applies to suits that allege a violation of
federal law that are “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.” Aguilar v. Tex. Dep’t of Crim.
Justice, 160 F.3d 1052, 1054 (5th Cir. 1998).
      The district court held that the Ex Parte Young exception was inapplicable
because May did not seek prospective injunctive relief from any individual sued
in an official capacity. May argues the district court must not have read his
response to the motion to dismiss in which he named two psychiatrists, Dr.
Shirro and Dr. Solven, as the individuals who prescribed or administered his
psychiatric medication. However, neither individual is named as a defendant in
the complaint, and May has not amended his complaint to add either of them.
Therefore, the Ex Parte Young exception does not apply.
      Since immunity has not been waived and the Ex Parte Young exception
does not apply, the district court correctly held that the Eleventh Amendment
precluded May’s Section 1983 claim against North Texas State Hospital.
Accordingly, the district court’s dismissal of this claim is AFFIRMED.




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