Gray v. Arkansas Department of Human Services , 406 F. App'x 84 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1901
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Chrystal Gray, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Arkansas Department of Human *
Services, (DHS); John Selig, * [UNPUBLISHED]
Director, DHS; Toni Bogan, *
Manager, Appeals and Hearings, *
Office of Chief Counsel, DHS; *
Sherry Middleton, Director, *
Division of Volunteerism, DHS, *
*
Appellees. *
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Submitted: November 2, 2010
Filed: December 16, 2010
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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Chrystal Gray appeals from the district court’s1 dismissal of her employment-
discrimination retaliation claims brought under 42 U.S.C. §§ 1981, 1983. Upon
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
careful de novo review, see Schaaf v. Residential Funding Corp., 517 F.3d 544, 549
(8th Cir. 2008) (district court’s grant of motion to dismiss reviewed de novo), we
agree with the district court that Gray could not bring an action against defendants
under section 1981, see Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d
1178, 1181 (8th Cir. 1998) (federal action to enforce rights under § 1981 against state
actor must be brought under § 1983). We further agree that, because Gray’s
complaint was silent as to the capacity in which she was suing defendants, her
complaint was properly construed as asserting only official-capacity claims, see Baker
v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007) (if complaint is silent about capacity in
which defendant is sued, court interprets complaint as including only official-capacity
claims); and, as such, her section 1983 claims failed, see Morstad v. Dept. of Corr. &
Rehab., 147 F.3d 741, 743-44 (8th Cir. 1998) (Eleventh Amendment bars § 1983
action against state and its officials acting in their official capacities); Nix v. Norman,
879 F.2d 429, 432 (8th Cir. 1989) (suit brought solely against state or state agency is
generally proscribed by Eleventh Amendment).
Accordingly, we affirm, see 8th Cir. R. 47B, but we modify the dismissal to be
without prejudice to Gray refiling her action. We express no opinion on the timeliness
of such an action.
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