                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 06-3761
                                 ___________

Stacy Lane VanHorn,                     *
                                        *
              Plaintiff - Appellee,     *
                                        *
       v.                               *   Appeal from the United States
                                        *   District Court for the
Dennis Oelschlager, Individually and in *   District of Nebraska.
his capacity as Executive Secretary of *
the Nebraska State Racing Commission; *
Dennis P. Lee, Individually and in his *
capacity as Chairman of the Nebraska *
State Racing Commission; Janell         *
Beveridge, Individually and in her      *
capacity as Commissioner of the         *
Nebraska State Racing Commission;       *
Bob Volk, Individually and in his       *
capacity as Commissioner of the         *
Nebraska State Racing Commission,       *
                                        *
              Defendants - Appellants, *
____________________                    *
                                        *
Douglas L. Brunk,                       *
                                        *
              Plaintiff - Appellee,     *
                                        *
       v.                               *
                                        *
Dennis Oelschlager, Individually and    *
in his capacity as Executive Secretary *
of the Nebraska State Racing            *
Commission; Dennis P. Lee,              *
Individually and in his capacity as    *
Chairman of the Nebraska State Racing  *
Commission; Janell Beveridge;          *
Bob Volk, Individually and in his      *
capacity as Commissioner of the        *
Nebraska State Racing Commission,      *
                                       *
             Defendants - Appellants. *
                                  ___________

                              Submitted: June 11, 2007
                                 Filed: September 26, 2007
                                  ___________

Before MELLOY, SMITH, and GRUENDER, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Dennis Oelschlager, the Executive Secretary for the Nebraska State Racing
Commission ("the Commission"), and its three appointed Commissioners, Chairman
Dennis P. Lee, Janell Beveridge, and Bob Volk ("the Commissioners") seek an
interlocutory appeal. Oelschlager and the Commissioners request reversal of the
district court's1 denial of their motion to reconsider its order directing that lawsuits
filed by Dr. Stacy Lane VanHorn and Dr. Douglas L. Brunk shall proceed against
Oelschlager and the Commissioners in their official capacities. We now dismiss the
interlocutory appeal for lack of jurisdiction.




      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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                                   I. Background
       The background facts underlying this dispute are fully set forth in our prior
opinion, VanHorn v. Oelschlager, 457 F.3d 844 (8th Cir. 2006) ("VanHorn I"). We
repeat the underlying facts here only as necessary to the instant appeal.

      Dr. VanHorn and his employer, Dr. Brunk, licensed veterinarians in the State
of Nebraska, brought suit against Oelschlager and the Commissioners, alleging that
they were denied due process and equal protection. They contended that the
Commission violated these constitutional rights when it disciplined and banned them
from treating race horses. The district court denied Oelschlager and the
Commissioners' motion for summary judgment based on qualified or quasi-judicial
immunity. On appeal, we reversed the district court, holding that "[u]pon careful
review, we find that the appellants are entitled to absolute, quasi-judicial immunity."
VanHorn I, 457 F.3d at 847. We concluded that "the holding in Dunham [v. Wadley,
195 F.3d 1007 (8th Cir. 1999),] [was] controlling in the instant case." Id. at 848. We
therefore reversed the district court's denial of summary judgment to Oelschlager and
the Commissioners and "remanded for further proceedings consistent with th[at]
opinion." Id. at 848.

      On remand, the district court denied in part Oelschlager and the Commissioners'
motion for summary judgment, finding that the claims against them in their official
capacities for declaratory and injunctive relief should proceed. Oelschlager and the
Commissioners filed a motion for reconsideration, arguing that the district court
should have dismissed the case in its entirety based on our holding in VanHorn I.

      The district court denied the motion for reconsideration, explaining that
absolute, quasi-judicial immunity "only applies to individual capacity suits" and that
the only immunities that apply in an official-capacity action "'are forms of sovereign
immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.'"
(Citing Kentucky v. Graham, 473 U.S. 159, 167 (1985)).

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        Additionally, the district court rejected Oelschlager and the Commissioners'
argument that they were absolutely immune from suit for injunctive or declaratory
relief. The district court noted that the 1996 amendment to 42 U.S.C. § 1983 provided
that "in any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable." According to
the district court, no authority existed for the proposition that Oelschlager and the
Commissioners qualified as "judicial officers" merely because this court concluded
that their actions "were functionally comparable to those of judges and prosecutors."
VanHorn I, 457 F.3d at 848. Furthermore, the district court noted that this court
previously held in Heartland Academy Community Church v. Waddle, 427 F.3d 525,
530–31 (8th Cir. 2005), that prosecutors are not immune from suit for injunctive relief
under § 1983.

      Finally, the district court found no support for Oelschlager and the
Commissioners' claim that judicial officers cannot be sued for declaratory relief under
§ 1983. Thus, the district court ordered the actions against Oelschlager and the
Commissioners in their official capacities for declaratory and injunctive relief to
proceed.

                                    II. Discussion
       On appeal, Oelschlager and the Commissioners argue that the district court (1)
erred in holding that absolute, quasi-judicial immunity "only applies to individual
capacity suits," as the issue of immunity goes to the act, rather than the actor, and is
based upon the function performed and (2) erroneously implicitly applied Ex Parte
Young, 209 U.S. 123 (1908), in concluding that absolute, quasi-judicial immunity does
not extend to claims for injunctive and declaratory relief.

      In response, Dr. VanHorn and Dr. Brunk argue that this court lacks jurisdiction
to hear the appeal. They acknowledge that a denial of summary judgment based on

                                          -4-
qualified immunity is immediately appealable to the extent that the appellant seeks
review of the purely legal determinations made by the district court. They argue,
however, that no immunity exists for claims against the appellants in their official
capacities for injunctive and declaratory relief. Thus, they assert that Oelschlager and
the Commissioners cannot take an interlocutory appeal to this court.

       "As an initial matter, this court must consider its jurisdiction of the interlocutory
appeal." Alternate Fuels, Inc. v. Cabanas, 435 F.3d 855, 858 (8th Cir. 2006). "A court
has jurisdiction to determine its own jurisdiction." United States v. Haskins, 479 F.3d
955, 957 (8th Cir. 2007). "The denial of summary judgment is not generally a final
order subject to immediate appeal." Alternate Fuels, 435 F.3d at 858. Under the
collateral order doctrine, however, when the defense of absolute immunity is
available, "an interlocutory appeal lies from a denial of absolute immunity." Id.

      Here, Oelschlager and the Commissioners are appealing from the denial of
absolute, quasi-judicial immunity for claims against them in their official capacities
for declaratory and injunctive relief. As an initial matter, we must first determine
whether such immunity is available to them when they are sued in their official
capacities. If it is not available, then this court cannot entertain their interlocutory
appeal from the denial of such immunity. Specifically, the question is whether in
VanHorn I, in finding that Oelschlager and the Commissioners were entitled to
absolute, quasi-judicial immunity, we extended such immunity to them in both their
individual and official capacities.

       In VanHorn I, we concluded that Oelschlager and the Commissioners were
entitled to absolute, quasi-judicial immunity based on our holding in Dunham. At
issue in Dunham was a veterinarian's appeal of the district court's grant of summary
judgment to members of the Arkansas Veterinary Medical Examining Board ("the
Board") based on the veterinarian's § 1983 claims. 195 F.3d at 1008. The district court
had held that the Board members were absolutely immune from suit "by virtue of the

                                            -5-
fact that their proceedings were quasi-judicial in nature." Id. On appeal, we
determined that "[p]ersons who perform quasi-judicial functions are entitled to
absolute immunity." Id. at 1010. Because we found that "the defendants' actions were
functionally comparable to those of judges and prosecutors," we held that they were
"entitled to absolute immunity." Id. at 1011.

       In Dunham, however, the plaintiff only brought suit against the defendants in
their individual capacities, not in their official capacities.2 Therefore, Dunham does
not resolve whether Oelschlager and the Commissioners are entitled to absolute,
quasi-judicial immunity for claims against them in their official capacities.

       We have previously indicated that immunity only extends to claims against
government employees sued in their individual capacities. Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) ("Qualified immunity is not a
defense available to governmental entities, but only to government employees sued
in their individual capacity."); Davis v. Hall, 375 F.3d 703, 710 n.3 (8th Cir. 2004)
(approving of the district court's conclusion that neither qualified immunity nor
absolute immunity was available to a government employee sued in his official
capacity). Furthermore, the Supreme Court has specifically stated that "[t]he only
immunities that can be claimed in an official-capacity action are forms of sovereign
immunity that the entity, qua entity, may possess, such as the Eleventh Amendment."
Graham, 473 U.S. at 167.

      Case law from our sister circuits also supports the conclusion that absolute,
quasi-judicial immunity only extends to claims against defendants sued in their


      2
       In the district court's order granting the defendants' motion for summary
judgment in Dunham, the district court stated that the plaintiff brought the § 1983
action "against defendants, all members or former members of the Arkansas
Veterinary Medical Examining Board ("the Board"), in their individual capacities."
(Emphasis added).

                                         -6-
individual—not official—capacities. See, e.g., Lonzetta Trucking & Excavating Co.
v. Schan, 144 Fed. Appx. 206, 210–211 (3d Cir. 2005) (unpublished) ("Therefore, it
follows that the zoning officials . . . would be entitled to absolute immunity in their
individual capacities if they were performing 'quasi-judicial' functions. However, the
zoning officials in their official capacities . . . are not entitled to absolute immunity.")
(emphasis in original); Denton v. Bedinghaus, 40 Fed. Appx. 974 (6th Cir. 2002)
(unpublished) ("Of critical importance here is that plaintiffs sue defendants in only
their official capacities. Yet, immunity defenses apply to individual capacity suits and
they do not shield municipalities from § 1983 liability."); Turner v. Houma Mun. Fire
& Police Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000) (rejecting municipal fire
and police service board members' argument that the district court erred in not holding
that the board and its members were entitled to absolute, quasi-judicial immunity in
their "official capacities" because such an argument "misconstrues the distinction
between immunities available for 'individual-capacity' and 'official capacity' suits
under § 1983"); Alkire v. Irving, 330 F.3d 802, 810–11 (6th Cir. 2003) (holding that
"as a result of being sued only in their official capacities, Sheriff Zimmerly and Judge
Irving cannot claim any personal immunities, such as quasi-judicial or qualified
immunity, to which they might be entitled if sued in their individual or personal
capacities.").

        We, like the Fifth Circuit, acknowledge that confusion can often arise in
litigation when "[c]ourts discuss immunity defenses without clearly articulating to
whom and in which capacity [immunity] defenses apply. . . ." Turner, 229 F.3d at 485.
Nevertheless, this court's precedent, Supreme Court precedent, and case law from our
sister circuits make clear that absolute, quasi-judicial immunity is not available for
defendants sued in their official capacities. This court in VanHorn I did not extend
absolute, quasi-judicial immunity to such claims and, in fact, specifically found
Dunham controlling—a case that only extended absolute, quasi-judicial immunity to
the defendants sued in their individual capacities.



                                            -7-
       Therefore, we hold that the defense of absolute, quasi-judicial immunity is not
available to Oelschlager and the Commissioners for claims against them in their
official capacities; thus, they cannot seek an interlocutory appeal from the denial of
such immunity.

                                III. Conclusion
      Accordingly, we dismiss the appeal for lack of jurisdiction.
                     ______________________________




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