UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TYRONE ANDREWS,
Plaintiff-Appellant,

v.

J. M. DAW, Trooper, North Carolina
                                                               No. 96-7664
Highway Patrol; EDWARD W.
HORTON, Commander, North
Carolina Highway Patrol; STATE OF
NORTH CAROLINA,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-96-584-5-BO)

Submitted: March 11, 1997

Decided: July 7, 1997

Before ERVIN, HAMILTON, and WILLIAMS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Tyrone Andrews, Appellant Pro Se. Reuben Franklin Young,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Tyrone Andrews appeals the district court's order (1) dismissing
his 42 U.S.C.A. § 1983 (West 1994) complaint against the state of
North Carolina and (2) granting summary judgment in favor of the
remaining Defendants, Commander Edward W. Horton of the North
Carolina Highway Patrol and Patrolman J.M. Daw. In its order, the
district court failed to state whether it acted pursuant to Rule 12(b)(6)
or Rule 56 of the Federal Rules of Civil Procedure.* Nevertheless, we
affirm the district court's order effectively dismissing all claims under
Federal Rule of Civil Procedure 12(b)(6).

Absent waiver or consent, the Eleventh Amendment bars suits
directly against a state. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (holding"that in the absence of
consent, a suit in which the State . . . is named as a defendant is pro-
scribed by the Eleventh Amendment"). Furthermore, a state is not
considered a "person" within the meaning of§ 1983. See Will v.
Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Hence, North
Carolina, having neither waived its Eleventh Amendment immunity
nor given the necessary consent, is not subject to§ 1983 liability in
this case. The district court therefore properly dismissed Andrews'
claims against North Carolina. See Fed. R. Civ. P. 12(b)(6). Accord-
ingly, we affirm that aspect of the district court's order.

With respect to Andrews' claims against Commander Horton and
_________________________________________________________________

*In addition, the district court failed to provide Andrews with appro-
priate notice under Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975). However, given our holding that the district court properly dis-
missed Andrews' claims under Federal Rule of Civil Procedure 12(b)(6),
we do not address the district court's failure to give Andrews Roseboro
notice.

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Patrolman Daw, we find that dismissal of the action under Rule
12(b)(6) was the appropriate remedy, rather than the entry of sum-
mary judgment under Rule 56. Dismissal of a claim under Rule
12(b)(6) is proper where, assuming the facts in the complaint are true,
it is clear as a matter of law that no relief could be granted under any
set of facts that could be proved consistent with the allegations. See
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). Here, the record
reveals that neither Horton nor Daw at any time moved for summary
judgment. Instead, they filed motions pursuant to Rule 12(b)(6) to dis-
miss Andrews' complaints. Furthermore, none of the parties submit-
ted any sworn affidavits or other evidence that would support sua
sponte conversion of Defendants' motions to dismiss to motions for
summary judgment. See Fed. R. Civ. P. 56(e). Resolution of the case
based on the pleadings alone is appropriate by dismissal under Rule
12(b)(6), not by summary judgment under Rule 56.

Commander Horton was named as a defendant in the complaint
only in his official capacity; Andrews did not allege that Horton was
personally involved in the alleged unlawful conduct. Cf. Rizzo v.
Goode, 423 U.S. 362, 377 (1976) (dismissing claims and stating "that
the responsible authorities had played no affirmative part in depriving
[plaintiff-respondents] of any constitutional rights"). Accordingly, he
is not a "person" within the meaning of § 1983 and is therefore not
subject to suit. See Will, 491 U.S. at 71. Similarly, Patrolman Daw
was also named only in his official capacity and is accordingly
shielded from suit for monetary damages -- the only remedy
Andrews seeks. See Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir.
1996) (holding "that, in his official capacity,[defendant-Sheriff] is
immune from suit under § 1983 for money damages"). Under these
circumstances, dismissal of the complaint under Rule 12(b)(6) was
appropriate -- Andrews could not have prevailed under any set of
facts that could be proved consistent with his allegations. Accord-
ingly, we affirm the district court's dismissal of Andrews' complaint
against all Defendants. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED

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