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LEWIS v. NEW MEXICO DEPT. OF HEALTH

No. 00-2154.

261 F.3d 970 (2001)

Ben LEWIS; Aaron Norrid; Billy Jo Quisenberry; Arc of New Mexico, as legal guardian and next friend of Fred Romero; Judy Liddell, as parent and legal guardian of Breanne Liddell; Jim Allen, as parent and legal guardian of Matthew Allen; Angela Allen, as parent and legal guardian of Matthew Allen; Faye Morgan; Deborah Eminger; Protection & Advocacy System, Plaintiffs-Appellees, v. NEW MEXICO DEPARTMENT OF HEALTH; New Mexico Department of Human Services; J. Alex Valdez, Secretary of the Department of Health and Secretary Designee of the Department of Human Services in his official capacities; Gary Johnson, Governor, in his official capacity, Defendants-Appellants.

United States Court of Appeals, Tenth Circuit.

August 16, 2001.

Attorney(s) appearing for the Case

Kurt Wihl, Keleher & McLeod, P.A., Albuquerque, New Mexico (Robyn Hoffman, General Counsel, Barbara Glenn, Assistant General Counsel, Office of the General Counsel, New Mexico Department of Health, Santa Fe, New Mexico, and Charles A. Pharris and Gary J. Van Luchene, Keleher & McLeod, P.A., Albuquerque, New Mexico, with him on the briefs), for Defendants-Appellants.

Maureen A. Sanders, Sanders & Westbrook, P.C., Albuquerque, New Mexico (Duff Westbrook, Sanders & Westbrook, P.C., Albuquerque, New Mexico, and V. Colleen Miller, Michael C. Parks, and Sandra L. Gomez, Protection & Advocacy, Inc., Albuquerque, New Mexico, with her on the brief), for Plaintiffs-Appellees.

Before TACHA, Chief Judge, POLITZ, and LUCERO, Circuit Judges.

TACHA, Chief Circuit Judge.

The defendants appeal the district court's denial of their motions to dismiss based on Eleventh Amendment immunity and Federal Rule of Civil Procedure 12(b)(6). Pursuant to the collateral order doctrine, we have jurisdiction under 28 U.S.C. § 1291 to review the district court's denial of the defendants' motion asserting Eleventh Amendment immunity, see Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

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