                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-2838
                                    ___________

Joshua D. Baker,                         *
                                         *
      Plaintiff - Appellant,             *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Eric Chisom, Drew County Deputy          * Eastern District of Arkansas.
Sheriff, in His Official and Individual *
Capacities; Marcia Bruner, Drew          *
County Deputy Sheriff, in Her            *
Individual and Official Capacities,      *
                                         *
      Defendants - Appellees.            *
                                    ___________

                              Submitted: February 14, 2007
                                 Filed: August 28, 2007
                                  ___________

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Early on August 15, 2002, Joshua Baker was arrested for traffic violations after
leading police on a late-night, half-mile chase. While awaiting arrival of the arresting
officer at the Drew County Jail, Deputy Sheriff Marcia Bruner handcuffed Baker’s
right arm to a bench and watched as Deputy Sheriff Eric Chisom choked Baker from
behind and tasered him in the back of the head. After Chisom was convicted of third
degree battery, Baker sued Chisom, Bruner, and other County defendants under 42
U.S.C. § 1983, asserting claims of excessive force, deliberate indifference, failure to
train and supervise, and failure to maintain adequate County policies. In September
2004, on the eve of trial and with defendants' motion for summary judgment pending,
Baker moved for a voluntary non-suit. On October 12, 2004, the district court granted
Baker a non-suit as to defendants Chisom and Bruner. The court denied a non-suit
and dismissed all claims against the other County defendants with prejudice.

       On September 22, 2005, Baker filed a second action, asserting the same claims
against Chisom and Bruner. Unlike his first complaint, the second complaint
specifically named Chisom acting “in his official and individual capacities” and
Bruner acting “in her individual and official capacities.” The district court1 dismissed
the individual capacity claims as time-barred and the official capacity claims on the
merits. The court also dismissed a state law tort claim added in Baker's First
Amended Complaint. Baker appeals all three rulings. We affirm.

                        I. The Individual Capacity Claims.

       The applicable state law statute of limitations governs § 1983 claims. See
Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980). Baker's claims against
Chisom and Bruner in their individual capacities are subject to the three-year
Arkansas statute of limitations. Morton v. City of Little Rock, 934 F.2d 180, 182 (8th
Cir. 1991). If an Arkansas plaintiff files a timely action and then “suffers a nonsuit,”
he “may commence a new action within one (1) year.” Ark. Code. Ann. § 16-56-126.
We apply that savings statute to § 1983 claims. Whittle v. Wiseman, 683 F.2d 1128,
1129 (8th Cir. 1982). Baker filed this action three years and six weeks after the
August 2002 incident. Thus, unless tolled, the individual capacity claims are time-
barred. Only causes of action pleaded in the non-suited action are tolled by the one-


      1
        The HONORABLE J. LEON HOLMES, Chief Judge of the United States
District Court for the Eastern District of Arkansas.

                                          -2-
year savings statute. Dillaha v. Yamaha Motor Corp., 23 F.3d 1376, 1377-78 (8th Cir.
1994).

       A plaintiff may assert § 1983 claims against a public official acting in his
individual capacity and in his official capacity. For many reasons, including exposure
to individual damage liability and the State's Eleventh Amendment immunity, these
are different causes of action. “[T]he distinction between official-capacity suits and
personal-capacity suits is more than a mere pleading device.” Hafer v. Melo, 502 U.S.
21, 27 (1991) (quotation omitted).

        This brief background brings to the fore an issue this court has often considered
-- when has a plaintiff properly asserted § 1983 claims against a public official acting
in his individual capacity. We have repeatedly stated the general rule: “If a plaintiff’s
complaint is silent about the capacity in which [he] is suing the defendant, we interpret
the complaint as including only official-capacity claims.” Egerdahl v. Hibbing Cmty.
Coll., 72 F.3d 615, 619 (8th Cir. 1995); see Nix. v. Norman, 879 F.2d 429, 431 (8th
Cir. 1989). “If the complaint does not specifically name the defendant in his
individual capacity, it is presumed he is sued only in his official capacity.” Artis v.
Francis Howell N. Band Booster Ass'n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998).

      Baker's first complaint named as defendants “ERIC CHISOM; MARCIA
BRUNER; LARON MEEKS, Individually and in his Capacity as Sheriff of Drew
County; and DREW COUNTY QUORUM COURT MEMBERS [naming the nine
members], in their Official Capacities and in their Individual Capacities.” The County
defendants other than Chisom and Bruner filed an Answer “in both their individual
and official capacities.” The same defense counsel then filed separate Answers by
Chisom and Bruner but only in their official capacities. Some months later, all
defendants moved for summary judgment. They argued, in part, that Chisom and
Bruner were sued only in their official capacities and therefore “[n]one of the
defendants named in their individual capacities had any personal involvement in the

                                          -3-
subject incident.” Without responding to this contention, Baker moved to voluntarily
non-suit the complaint without prejudice. Defendants objected to a non-suit “without
first resolving the Defendants' Motion for Summary Judgment,” noting they had
incurred litigation time and expense.

       The district court dismissed Baker's claims against the other County defendants
with prejudice because Baker failed to submit evidence refuting their motion for
summary judgment or even a statement of material facts in dispute. However, the
court granted Baker's non-suit motion and dismissed the claims against Chisom and
Bruner without prejudice, explaining:

      The undisputed facts establish that Chisom committed battery against
      Baker, and that Bruner observed the battery but did nothing to stop it.
      Had Baker not filed a motion for voluntary non-suit, the Court would
      have given Baker the opportunity to amend the complaint to make it
      clear and unambiguous that he was suing Chisom and Bruner in their
      individual capacities, and the Court would have continued the trial date
      . . . to avoid any prejudice to Chisom and Bruner. The Court would not
      have entered a judgment in favor of Chisom and Bruner that would have
      barred Baker’s claims against them. . . . Chisom and Bruner will not be
      prejudiced by a dismissal.

When his first complaint was dismissed without prejudice, Baker had ten months in
which to file individual capacity claims against Chisom and Bruner within the three-
year statute of limitations. Instead, he waited eleven months. The district court
granted summary judgment and dismissed the individual capacity claims as time-
barred, rejecting Baker's contention that the claims are timely under the one-year non-
suit savings statute.

      On appeal, Baker argues that his first complaint adequately named Chisom and
Bruner in their individual capacities because the substantive paragraphs included a
reference to Chisom and Bruner as “individual Defendants” and prayed for

                                         -4-
“exemplary damages” that may not be recovered in an official capacity suit. But our
cases require more than ambiguous pleading. See Andrus ex rel. Andrus v. Arkansas,
197 F.3d 953, 955 (8th Cir. 1999) (“specific pleading of individual capacity is
required”); Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)
(“only an express statement that [public officials] are being sued in their individual
capacity will suffice”); Murphy v. State of Arkansas, 127 F3d 750, 754 (8th Cir. 1997)
(“a clear statement that officials are being sued in their personal capacities” is
required). A “cryptic hint” in plaintiff’s complaint is not sufficient. Egerdahl, 72 F.3d
at 620.

       The caption of Baker's first complaint named ten other County defendants “in
their Official Capacities and in their Individual Capacities.” The caption was silent
as to the capacities in which Chisom and Bruner were named. The body of the
complaint contained no “clear statement” or “specific pleading” of individual
capacity, only allegations that were, at most, “cryptic hints.” Defendants made their
interpretation of the complaint crystal clear. Chisom and Bruner filed separate
Answers only in their official capacities, and defendants' motion for summary
judgment argued that no individual capacity claims had been asserted against Chisom
and Bruner. Baker did not contest this assertion. The district court in granting non-
suit observed that it would have allowed Baker “to amend the complaint to make it
clear and unambiguous that he was suing Chisom and Bruner in their individual
capacities.” In these circumstances, we agree with the district court that Baker's first
complaint did not include the requisite clear statement that Chisom and Bruner were
being sued in their individual capacities. Therefore, the one-year savings statute did
not apply, and these claims were properly dismissed as time-barred.2




      2
       Baker argues that the Eighth Circuit “holds a lonely position” on this issue and
urges us to adopt the “flexible approach” of other circuits. This argument must be
addressed to the court en banc.

                                          -5-
       Baker next argues that Doe v. Cassel, 403 F.3d 986 (8th Cir. 2005), implicitly
overruled our Egerdahl line of decisions. This contention is without merit. In Doe,
we applied recent Supreme Court decisions and held that “[t]he only permissible
heightened pleading requirements” in § 1983 suits against individual defendants “are
those contained in the Federal Rules of Civil Procedure” or in federal statutes. 403
F.3d at 989. Rule 8(a)(2) of the Federal Rules provides that each complaint shall
contain “a short and plain statement of the claim.” Requiring an “express statement”
that a defendant is sued in his or her individual capacity is consistent with this Rule.
More than twenty years ago, Chief Judge Donald Lay provided Eighth Circuit
practitioners with a clear and simple statement that satisfies this pleading requirement.
Rollins by Agosta v. Farmer, 731 F.2d 533, 536 n.3 (8th Cir. 1984). That instruction
was not a heightened pleading requirement in 1984 nor is it today.3

       Finally, Baker argues that equitable tolling should be applied to avoid the time
bar because the district court acknowledged that its dismissal order in the first case
may have “contributed to the confusion.” A plaintiff must be “reasonably diligent”
to be entitled to equitable tolling of an applicable statute of limitations. Stracener v.
Williams, 137 S.W.3d 428, 431 (Ark. App. 2003). Here, as we have explained, Baker
was not the least bit diligent. He allowed the last ten months of the initial three-year
limitations period to expire despite repeated warnings -- by defendants' pleadings, by
the district court's dismissal order, and by controlling Eighth Circuit precedent -- that
his first complaint failed to assert claims against Chisom and Bruner in their
individual capacities. The district court properly declined to apply equitable tolling.




      3
       After Doe, at least one panel has favorably cited the “clear statement” rule of
Egerdahl and Nix, though without discussing this issue. Larson v. Kempker, 414 F.3d
936, 939 (8th Cir. 2005).

                                          -6-
                         II. The Official Capacity Claims.

        Baker's complaint in the second action asserted the same official capacity
claims against Chisom and Bruner that were asserted against all defendants in the first
action. In the first action, the district court granted summary judgment and dismissed
these claims against the other County defendants with prejudice. The doctrine of res
judicata or claim preclusion bars relitigation of a § 1983 claim if the prior judgment
was a final judgment on the merits rendered by a court of competent jurisdiction, and
if the same cause of action and the same parties or their privies were involved in both
cases. Murphy v. Jones, 877 F.2d 682, 684 (8th Cir. 1989).

       A suit against a government official in his or her official capacity is “another
way of pleading an action against an entity of which an officer is an agent.” Monell
v. Dep’t of Social Services, 436 U.S. 658, 690 n.55 (1978). “[T]he real party in
interest in an official-capacity suit is the governmental entity and not the named
official.” Hafer, 502 U.S. at 25. The doctrine of res judicata bars a plaintiff from
suing a succession of public officials on the same official-capacity claim. See
Micklus v. Greer, 705 F.2d 314, 317 (8th Cir. 1983); Young v. City of St. Charles, 34
Fed. Appx. 245 (8th Cir.), cert. denied, 537 U.S. 1035 (2002). In the first action, when
the district court issued a final order dismissing on the merits the official-capacity
claims against the other County defendants, it resolved the merits of the official-
capacity claims against all defendants, even if the court did not make this clear in
granting a non-suit and dismissing all claims against Chisom and Bruner without
prejudice. Thus, Baker's official-capacity claims against Chisom and Bruner are
barred by the doctrine of res judicata. We need not consider whether the district court
properly dismissed those claims on the merits.4

      4
        On appeal, Baker primarily argues that he presented sufficient evidence of
official capacity liability because the County had no policies regarding the use of
choke holds and tasers. This theory would not likely survive our recent en banc
decision in Szabla v. City of Brooklyn Park, 486 F.3d 385, 392-93 (8th Cir. 2007).

                                          -7-
                        III. The Pendent State Law Claim.

       Finally, Baker argues that the district court erred in dismissing with prejudice
his state law claim for “conduct of another person that would constitute a felony under
Arkansas law.” Ark. Code. Ann. § 16-118-107. After Baker filed his amended
complaint asserting this claim, Chisom and Bruner moved for summary judgment
dismissing “Plaintiff's Complaint.” Neither defendants' nor Baker's motion papers
addressed this claim, except for Baker's assertion in his disputed fact statement “that
Chisom's conduct amounted to felonious conduct” even though Chisom was convicted
of a misdemeanor, third degree battery. See Ark. Code Ann. § 5-13-203.

       The district court granted defendants' summary judgment motion and dismissed
the entire complaint without discussing the state law claim. Having dismissed all
federal claims, the court had discretion to dismiss this pendent state law claim without
prejudice. However, because the state law claim arose out of the same core of
operative facts, and because Baker failed to defend that claim or to urge that it be
dismissed without prejudice, the district court did not commit plain error or abuse its
discretion in exercising its supplemental jurisdiction under 28 U.S.C. § 1367 to
dismiss this late-filed pendent claim with prejudice. See Ivy v. Kimbrough, 115 F.3d
550, 552-53 (8th Cir. 1997).

      The judgment of the district court is affirmed.

GRUENDER, Circuit Judge, concurring in part and dissenting in part.

      I concur fully in parts I and II of the Court’s judgment and opinion but dissent
with respect to part III.

      Although our circuit’s current precedent mandates the outcome the Court
reaches in parts I and II, I write separately to express my concern about the Eighth

                                          -8-
Circuit’s judicially-created suggestion that “section 1983 litigants wishing to sue
government agents in both capacities should simply use the following language:
‘Plaintiff sues each and all defendants in both their individual and official capacities.’”
Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) (quoting Rollins by Agosta v.
Farmer, 731 F.2d 533, 536 n.3 (8th Cir. 1984)). Since Nix, this suggestion has
mutated into a bright-line presumption that “[i]f 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.” Egerdahl v. Hibbing Cmty. Coll., 72 F.3d
615, 619 (8th Cir. 1995). This presumption had its genesis in Nix based upon our
perception of Federal Rule of Civil Procedure 9(a) and the Eleventh Amendment’s
limitations on federal court jurisdiction. Rule 9(a) provides, “[i]t is not necessary to
aver the capacity of a party to sue or be sued . . . except to the extent required to show
the jurisdiction of the court.” Coupled with the observation that “[t]he Eleventh
Amendment presents a jurisdictional limit on federal courts in civil rights cases
against states and their employees,” Nix concluded that “Rule 9(a) appears to require
Nix to make a capacity stipulation in the complaint.” Nix, 879 F.2d at 431. A close
inspection of the cases in which we have required litigants to specify the capacity in
which a defendant is being sued have, with few exceptions, involved state actors
arguably entitled to an Eleventh Amendment immunity defense.5

       As at least one other circuit has pointed out, the logic laid out in Nix supporting
our presumption may be faulty in its premise. See Biggs v. Meadows, 66 F.3d 56, 59-
60 (4th Cir. 1995). Unlike subject matter jurisdiction, Eleventh Amendment
immunity is not “jurisdictional in the sense that it must be raised and decided by [a]
Court on its own motion.” Patsy v. Bd. of Regents, 457 U.S. 496, 515 n.19 (1982).


      5
       Among the exceptions are Johnson v. Outboard Marine Corp., 172 F.3d 531
(8th Cir. 1999) and Artis v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d
1178 (8th Cir. 1998). Because these cases have applied our bright-line presumption
to § 1983 cases not involving Eleventh Amendment immunity, I believe that they are
controlling as to the instant case.

                                           -9-
Also unlike subject matter jurisdiction, a party entitled to sovereign immunity may
waive it. See Grand River Enters. Six Nations, Ltd. v. Beebe, 467 F.3d 698, 701 (8th
Cir. 2006). While the operation of Rule 9(a) in § 1983 cases with Eleventh
Amendment issues may be debatable, it appears that Rule 9(a) has no express
application in cases like this one, where the defendants cannot assert Eleventh
Amendment immunity. See N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189
(2006) (noting that the Supreme Court “has repeatedly refused to extend sovereign
immunity to counties”). The overwhelming majority of our sister circuits uniformly
take a different approach to capacity-pleading issues, see Powell v. Alexander, 391
F.3d 1, 22 & n.25 (1st Cir. 2004) (adopting the “course of proceedings” test used in
the Second, Third, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh and D.C. Circuits),
and our rule seems to be swimming against recent currents from the Supreme Court
regarding notice pleading, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14
(2002); Doe v. Cassel, 403 F.3d 986, 989 (8th Cir. 2005) (recognizing that
Swierkiewicz has abrogated Eighth Circuit § 1983 heightened pleading requirements).



       With respect to part III of the Court’s opinion, I respectfully dissent. In my
view, dismissal of the state law claim with prejudice is an abuse of discretion where
the movants did not address the state law claim in their summary judgment motion and
the district court was similarly silent on the claim. “It is well settled the party seeking
summary judgment must first identify grounds demonstrating the absence of a genuine
issue of material fact.” Robinson v. White County, 459 F.3d 900, 902 (8th Cir. 2006)
(quotation and alteration omitted) (reversing the district court’s dismissal of state law
claims because the party seeking summary judgment failed to identify grounds
demonstrating the absence of a genuine issue of material fact with respect to those
claims and the district court failed to articulate a basis for dismissing those claims).
In Ivy v. Kimbrough, the district court did address the state law claims at issue there
when it concluded that there was no evidence to support them or the § 1983 claims,
which relied on the same core facts. 115 F.3d 550, 553 (8th Cir. 1997). Here, I do not

                                           -10-
find it particularly relevant that the state law claim at issue “arose out of the same core
of operative facts” as the federal claims because the federal claims were dismissed on
limitations and immunity grounds, and it is not clear that an immunity analysis under
Arkansas law would reach the same result.6

       Even assuming that we should review this issue under a plain error standard,7
the movants here failed to meet their predicate burden of establishing their entitlement
to summary judgment on the state law claim, and the district court’s dismissal of that
claim with prejudice leaves Baker worse off for having pled the claim in federal
court.8 See Olson v. Ford Motor Co., 481 F.3d 619, 627 (8th Cir. 2007) (“Under [the
plain error] standard, a verdict should be reversed only if the error has prejudiced the
substantial rights of a party and would result in a miscarriage of justice if left
uncorrected.”).

      Under these circumstances, I would direct the district court to dismiss the state
law claim without prejudice.
                      ______________________________




      6
       The parties neither briefed nor argued Arkansas immunity issues.
      7
       I am not convinced that plain error review is appropriate here where the
defendants’ motion for summary judgment failed to address the state law claim at all
and where they only requested “the summary dismissal of Plaintiff’s Complaint,”
without clearly requesting that the dismissal be with prejudice. The nonmoving party
should not have a duty to “preserve” an issue that the moving party has not
specifically put at issue.
      8
        Although Baker would have faced a statute of limitations issue with respect to
the state law claim, he also might have had recourse to tolling of the limitations
period. See Ragland v. Alpha Aviation, Inc., 686 S.W.2d 391, 393 (Ark. 1985).

                                           -11-
