Michele Moore v. Joyce Plock, et al

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, STEVEN M. COLLOTON and RAYMOND W. GRUENDER (UNPUBLISHED) [3670306] [10-1250]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-1250
___________
Michele Cherie Chapman Moore,

*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the
* District of Nebraska.
Joyce Plock; State of Nebraska;
*
York Penitentary for Women;
* [UNPUBLISHED]
Dave Heineman, Governor of
*
Nebraska; Robert Houston,
*
Director of Dept. of Correctional
*
Services; Ryan Mahr, Warden of
*
Community Corrections Center of
*
Omaha; Jamey Odell, R.N. Acting
*
ADON of Attorney General’s Office
*
OCC,
*
*
Appellees.
*
___________
Submitted: May 27, 2010
Filed: June 2, 2010
___________
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
___________
PER CURIAM.

Appellate Case: 10-1250

Page: 1

Date Filed: 06/02/2010 Entry ID: 3670306

Former Nebraska inmate Michele Moore appeals the district court’s1 preservice
dismissal without prejudice of her 42 U.S.C. § 1983 complaint. After careful de novo
review, see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per curiam), we
agree with the district court that Moore’s claims were barred by the Eleventh
Amendment, see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (because
Eleventh Amendment immunizes states from suit, neither state nor its officials acting
in their official capacity are “persons” under § 1983); Monroe v. Ark. State Univ., 495
F.3d 591, 594 (8th Cir. 2007) (Eleventh Amendment bars suit against state agency for
any kind of relief); Larson v. Kempker, 414 F.3d 936, 939 n.3 (8th Cir. 2005)
(Eleventh Amendment bars § 1983 lawsuit against state agency even if entity is
moving force behind deprivation of federal right (citing Kentucky v. Graham, 473
U.S. 159, 169 (1985))); Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999) (unless pleading expressly and unambiguously states public official is sued
in individual capacity, it will be assumed that defendant is sued only in official
capacity).
Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________

1

The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
-2-

Appellate Case: 10-1250

Page: 2

Date Filed: 06/02/2010 Entry ID: 3670306