Michele Moore v. Joyce Plock, et al

Filing 920100602

Opinion

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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 Joyce Plock; State of Nebraska; * York Penitentary for Women; * [UNPUBLISHED] Dave Heineman, Governor of * Nebraska; Robert Houston, * Director of Dept.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. 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. ______________________________ The Honorable Joseph F. Bataillon, Chief Judge, United States District Court for the District of Nebraska. -2- 1

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