                             ___________

                             No. 95-2019
                             ___________

Mark D. Treleven,                 *
                                  *
          Appellant,              *
                                  *   Appeal from the United States
     v.                           *   District Court for the
                                  *   District of Minnesota.
University of Minnesota;          *
David S. Kidwell,                 *
                                  *
          Appellees.              *


                             ___________

                    Submitted:   November 17, 1995

                        Filed: January 12, 1996
                             ___________

Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.


     This case requires us to consider whether the University of
Minnesota is an instrumentality of the state of Minnesota for
purposes of the Eleventh Amendment and 42 U.S.C. § 1983 (1988).


     In 1987 Mark D. Treleven, a faculty member, was denied tenure
by the University, and his tenure-track appointment was terminated
in 1988. In May 1990, after an administrative appeal by Treleven,
the University reversed itself and granted Treleven tenure. In the
interim, however, Treleven had accepted teaching positions at other
universities.   The University asked him to return to campus to
teach classes by September 16, 1993. When Treleven did not return
by the designated date, the University terminated Treleven's
employment because, in the University's opinion, Treleven had
constructively resigned. Treleven then filed this § 1983 lawsuit
against the University and Dean David S. Kidwell.1 Treleven sought
damages and reinstatement. The District Court held that the action
could not be maintained against the University and Kidwell because
both are entitled to immunity from suit under the Eleventh
Amendment and because neither are persons within the meaning of
§ 1983. Treleven now timely appeals the District Court's grant of
summary judgment. We affirm in part and reverse in part.


     "We review de novo the granting of a summary judgment motion."
Maitland v. University of Minn., 43 F.3d 357, 360 (8th Cir. 1994).
"We will affirm the judgment if the record shows there is no
genuine issue of material fact and that the prevailing party is
entitled to judgment as a matter of law." Id.; see also Fed. R.
Civ. P. 56(c). The parties agree that no material factual disputes
exist, but Treleven does not agree that the University and Kidwell
are entitled to judgment as a matter of law. The primary issue of
law in this case is whether the University is an instrumentality of
the state of Minnesota and thus entitled to share in the state's
Eleventh Amendment immunity.


     The Eleventh Amendment to the Constitution provides that
"[t]he Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State." The Supreme Court
has interpreted the Eleventh Amendment to bar actions in federal
court against a state by its citizens. Hans v. Louisiana, 134 U.S.
1, 15 (1890).     Additionally, the Eleventh Amendment prohibits
federal-court lawsuits seeking monetary damages from individual



       1
       Treleven also brought claims against the University and
Kidwell under state law. The District Court dismissed the state-
law claims without prejudice after dismissing with prejudice his
federal claims.

                               -2-
state officers in their official capacities2 because such lawsuits
are essentially "for the recovery of money from the state." Ford
Motor Co. v. Department of the Treasury, 323 U.S. 459, 464 (1945).
Moreover, the Supreme Court has held that "neither a State nor its
officials acting in their official capacities are `persons' under
§ 1983" when sued for damages. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989). Thus, assuming that the University
is an arm of the state, Treleven's federal-court lawsuit against
the University clearly is barred by the Eleventh Amendment, and his
suit against Kidwell also clearly is barred insofar as Treleven
seeks to recover damages from Kidwell.


     We previously have determined that the University of Minnesota
is an instrumentality of the state and entitled to share in the
state's Eleventh Amendment immunity.     See Richmond v. Board of
Regents, 957 F.2d 595, 598-99 (8th Cir. 1992); Schuler v.
University of Minn., 788 F.2d 510, 516 (8th Cir. 1986), cert.
denied, 479 U.S. 1056 (1987); Walstad v. University of Minn.
Hosps., 442 F.2d 634, 641-42 (8th Cir. 1971). Treleven nonetheless
argues that these cases are subject to reexamination in light of
Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985), and Sherman v.
Curators of the University of Missouri, 16 F.3d 860 (8th Cir.
1994).


     In Greenwood this Court remanded the case to allow the
district court to "make findings concerning whether the University
of Arkansas is for eleventh amendment purposes a separate entity


      2
       Treleven has joined Kidwell as a defendant solely in his
official capacity as dean of the Carlson School of Management at
the University of Minnesota. See Complaint at ¶ 4 ("At all times
relevant herein, [Kidwell] acted within the scope of his duties as
Dean."); see also Egerdahl v. Hibbing Comm. College, No. 95-1700,
slip op. at 7 (8th Cir. Dec. 18, 1995) ("If a plaintiff's complaint
is silent about the capacity in which she is suing the defendant,
we interpret the complaint as including only official-capacity
claims.").

                               -3-
from the state of Arkansas." 778 F.2d at 454. We listed a number
of factors to be considered when making such findings.        These
include: (1) whether the action is in reality an action against
the state as a result of the entity's "powers and characteristics"
under state law; (2) whether the entity is autonomous and exercises
a significant degree of control over its own affairs; and (3)
"whether the funds to pay any award will be derived from the state
treasury." Id. at 453 (quoting Laje v. R.E. Thomason Gen. Hosp.,
665 F.2d 724, 727 (5th Cir. 1982)); see also Sherman, 16 F.3d at
863 (remanding case for consideration of status of University of
Missouri in light of Greenwood factors). According to Treleven,
this court's post-Greenwood decisions regarding the status of the
University of Minnesota are not valid precedents because they
merely cite Walstad and do not discuss the Greenwood factors.
Based on Greenwood and Sherman, Treleven would have us remand this
case to the District Court so that the court could make detailed
findings of fact regarding the University's relationship with the
state. The University, on the other hand, argues that Greenwood
did not overrule Walstad but in fact, by citing Walstad
approvingly, confirmed the Walstad court's conclusion that the
University of Minnesota is entitled to share in the state's
Eleventh Amendment immunity.


     We do not think that Greenwood and Sherman cast any doubt on
our holding in Walstad. In Walstad, we considered the relationship
between the University and the state. We noted that "the Minnesota
Constitution provides that the University of Minnesota is an
instrumentality of the state and expressly reserves all immunities
to the University," and we therefore held that the university's
hospitals are "immune from suit as a sovereign entity" under the
Eleventh Amendment. Walstad, 442 F.2d at 641 (citing Minn. Const.
of 1857 art. VIII, § 3 (amended and recodified in 1974 as art.
XIII, § 3)). We later cited Walstad in both Greenwood and Sherman
as an example of "[t]he majority of cases addressing the question
of eleventh amendment immunity for public colleges and universities

                               -4-
[that] have held that these institutions are arms of their
respective state governments and thus immune from suit."
Greenwood, 778 F.2d at 453; see also Sherman, 16 F.3d at 863 n.3.
This Court's holding in Walstad, followed in Richmond and Schuler,
is not altered by either Greenwood or Sherman.       Greenwood and
Sherman set forth factors for district courts to consider when they
are confronted with an Eleventh Amendment question of first
impression.   The District Court in this case had no need to
consider the Greenwood factors; it had before it the prior
decisions of this Court adjudicating the question of the
University's relationship with the state. In these circumstances,
the District Court properly held that the University was an arm of
the state and thus entitled to share in its Eleventh Amendment
immunity.3


     We next consider the scope of Kidwell's entitlement to the
state's Eleventh Amendment immunity.     While the District Court
properly dismissed, on Eleventh Amendment grounds, Treleven's
claims against Kidwell for damages, the court erroneously granted
summary judgment for Kidwell on Treleven's § 1983 claim against
Kidwell for injunctive relief. The District Court simply dismissed
all of Treleven's claims after holding that Kidwell was not a
"person" within the meaning of § 1983 and that actions against
state officials are barred by the Eleventh Amendment. Actions in
federal court seeking injunctive relief against state officials,
however, are not always barred by the Eleventh Amendment. Ex parte
Young, 209 U.S. 123, 155-56 (1908); see also Osborn v. Bank of the
United States, 22 U.S. (9 Wheat.) 738, 857-58 (1824). We recently
explained that "Ex parte Young recognized that suits may be brought
in federal court against state officials in their official
capacities for prospective injunctive relief to prevent future


     3
      Treleven offered no evidence that the relationship between
the University and the state has changed since our 1971 Walstad
decision.

                               -5-
violations of federal law." Fond du Lac Band of Chippewa Indians
v. Carlson, 68 F.3d 253, 255 (8th Cir. 1995). Additionally, state
officials are "persons" under § 1983 when sued for injunctive
relief because such actions "are not treated as actions against the
State." Will, 491 U.S. at 71 n.10 (quoting Kentucky v. Graham, 473
U.S. 159, 167 n.14 (1985)). Thus to the extent that the District
Court, basing its decision on the Eleventh Amendment, granted
summary judgment for Kidwell on Treleven's § 1983 claim for
injunctive relief in the form of reinstatement, the judgment must
be reversed.4


     In sum, we affirm the District Court's grant of summary
judgment in favor of the University. We also affirm the court's
grant of summary judgment in favor of Kidwell, except insofar as
the court granted summary judgment in favor of Kidwell on
Treleven's § 1983 claim for reinstatement. To that extent, the
judgment is reversed, and the case is remanded for further
proceedings.



     A true copy.


          Attest:


               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




    4
     Although Treleven also sought injunctive relief as a part of
his state-law claims, the District Court properly dismissed these
claims in their entirety. The exception to the Eleventh Amendment
carved out by Ex parte Young and its progeny does not extend to
lawsuits seeking to enjoin state officers from violating state law.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984).

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