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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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