NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HECTOR GARCIA, No. 21-16747

Plaintiff-Appellant, D.C. No. 2:20-cv-01309-KJM-DB

v.

MEMORANDUM*

CALIFORNIA DEPARTMENT OF

PUBLIC HEALTH; STATE OF

CALIFORNIA,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted January 18, 2023**

Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.

Hector Garcia appeals pro se from the district court’s judgment dismissing

his action alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 201 et seq. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). a dismissal on the basis of Eleventh Amendment immunity. Quillin v. Oregon,

127 F.3d 1136, 1138 (9th Cir. 1997). We affirm.

The district court properly dismissed Garcia’s action on the basis of

Eleventh Amendment immunity. See Walden v. Nevada, 945 F.3d 1088, 1093-94

(9th Cir. 2019) (“Congress’s enactment of the FLSA did not abrogate a State’s

sovereign immunity from suit in federal court” and therefore “federal courts lack

jurisdiction over FLSA cases brought against States in the absence of a waiver of

immunity.”); see also Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher

Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh Amendment

jurisdictional bar applies regardless of the nature of the relief sought and extends to

state instrumentalities and agencies.”).

The district court did not abuse its discretion by denying Garcia leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and stating that leave to amend may be denied where amendment would be

futile).

AFFIRMED.

2 21-16747