     Case: 11-40758     Document: 00511944637         Page: 1     Date Filed: 08/03/2012




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

                                                                            FILED
                                                                           August 3, 2012
                                     No. 11-40758
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DONALD LE CLAIR,

                                                  Plaintiff-Appellant

v.

TEXAS BOARD CRIMINAL JUSTICE,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:10-CV-177


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Donald Le Clair, Texas prisoner # 403292, filed in the district court a
complaint under 42 U.S.C. § 1983, against the Texas Board of Criminal Justice
(TBCJ) alleging that the TBCJ unlawfully seized $300 from his prison trust
account and was holding $525 by freezing his account, in violation of his right
to due process. The district court granted the defendant’s motion to dismiss
under Rule12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure and



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40758    Document: 00511944637      Page: 2   Date Filed: 08/03/2012

                                  No. 11-40758

dismissed Le Clair’s complaint with prejudice, concluding that the TBCJ was a
state agency immune to suit under § 1983.
      Le Clair contends that because the TBCJ’s conduct violated the
Fourteenth Amendment, the TBCJ is not entitled to Eleventh Amendment
immunity, and he argues that the TBCJ is a “person” susceptible to suit under
§ 1983 and is liable for its policies or customs. We review the judgment of
dismissal de novo. Ballew v. Continental Airlines, Inc., 668 F.3d 777, 781 (5th
Cir. 2012); Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011).
      The Supreme Court has recognized “only two circumstances in which an
individual may sue a State. First, Congress may authorize such a suit in the
exercise of its power to enforce the Fourteenth Amendment . . . . Second, a State
may waive its sovereign immunity by consenting to suit.” College Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999).
Neither exception applies here. Further, “an entity with Eleventh Amendment
immunity is not a ‘person’ within the meaning of § 1983.” Howlett v. Rose, 496
U.S. 356, 365 (1990). Thus, the district court did not err in dismissing Le Clair’s
suit. The judgment of dismissal is affirmed.
      Le Clair has moved for the appointment of counsel on appeal. Because his
case does not present exceptional circumstances, the motion is denied. See
Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
      AFFIRMED; MOTION DENIED.




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