Polonczyk v. Corporate State, et al, No. 08-60895 (5th Cir. 2009)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-60895 Summary Calendar June 30, 2009 Charles R. Fulbruge III Clerk KIM ANTHONY POLONCZYK Plaintiff-Appellant v. CORPORATE STATE OF ARKANSAS; MIKE BEEBE, Governor Defendants-Appellees Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:08-CV-284 Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM:* Kim Anthony Polonczyk filed a civil action against the State of Arkansas and Governor Beebe alleging various instances of discrimination and abuse. The district court dismissed the suit as frivolous because, under the Eleventh Amendment, the defendants are immune from such suits where the only relief sought is monetary damages. The district court denied Polonczyk s motion for leave to proceed in forma pauperis (IFP) on appeal after finding that the appeal * Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4. No. 08-60895 would be frivolous. Polonczyk now seeks this court s leave to proceed IFP on appeal. Although Polonczyk asserts generally that the defendants waived their sovereign immunity by accepting federal funds, he fails to assert any facts that demonstrate a specific abrogation of that immunity. Accordingly, he fails to show that he will raise a nonfrivolous issue on appeal. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246-47 (1985), superseded by statute, 42 U.S.C. § 2000d-7; Hurst v. Texas Dep t of Assistive & Rehab. Servs., 482 F.3d 809, 810 (5th Cir. 2007). Polonczyk s IFP motion is denied, and the appeal is dismissed as frivolous. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982); 5 TH C IR. R. 42.2. APPEAL DISMISSED; IFP MOTION DENIED. 2

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