                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 05-4188
                                ___________

Malendia Wade-Lemee,                    *
                                        *
              Appellant,                *
                                        *
       v.                               * Appeal from the United States
                                        * District Court for the
Board of Education of the City of       * Eastern District of Missouri.
St. Louis, also known as St. Louis      *
City Public School District; Darnetta   * [UNPUBLISHED]
Clinkscale, in her capacity as          *
President and Member of the Board of *
Education for the City of St. Louis;    *
Ronald Jackson, in his capacity as      *
Vice President and Member of the        *
Board of Education for the City of St. *
Louis; Veronica O’Brien, in her         *
capacity as a Member of the Board of *
Education for the City of St. Louis;    *
Robert Archibald, in his capacity as a *
Member of the Board of Education for *
the City of St. Louis; Vincent C.       *
Schoemehl, Jr., in his capacity as a    *
Member of the Board of Education for *
the City of St. Louis; Flint Fowler, in *
his capacity as a Member of the         *
Board of Education for the City of St. *
Louis; William Purdy, in his capacity *
as a Member of the Board of Education *
for the City of St. Louis,              *
                                        *
              Appellees.                *
                                     ___________

                               Submitted: October 31, 2006
                                  Filed: November 14, 2006
                                   ___________

Before SMITH, MAGILL, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

       Malendia Wade-Lemee appeals the district court’s dismissal of her state and
federal claims of disability discrimination against the Board of Education of the City
of St. Louis (Board), as well as her state law tort claims against individual Board
members in their official capacities. Wade-Lemee alleged she was terminated from
her position with the St. Louis City Public School District because of a disability.
According to Wade-Lemee, she was subsequently offered a position with the East St.
Louis School District, but the district later “put her on indefinite hold” and did not hire
her. She discovered that “someone from the St. Louis City Public Schools” had told
the superintendent of the East St. Louis School District, “Don’t mess with [Wade-
Lemee], she’s trouble.”

       Following defendants’ motion to dismiss in part, the district court sua sponte
considered application of the Eleventh Amendment, and dismissed the entire
complaint based on the conclusion that the Board “is a political sub-division of the
State of Missouri.” The district court further denied Wade-Lemee’s post-judgment
motion to reconsider, and this appeal followed.

       We find no error in the dismissal of Wade-Lemee’s tort claims against the
individual defendants in their official capacities. Wade-Lemee complained of conduct
which fell squarely within the discretion of the Board members, and they consequently
could be liable only if those acts were done in bad faith or with malice. See Charron


                                           -2-
v. Thompson, 939 S.W.2d 885, 887 (Mo. 1996) (recognizing officials may be liable
for discretionary acts undertaken with bad faith or malice). She did not allege
defendants acted in bad faith or with malice, and in fact never alleged that any of the
individual defendants made the derogatory statement to the East St. Louis School
District.

       While it was permissible for the district court to consider sua sponte application
of the Eleventh Amendment, see Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991)
(district court may dismiss complaint on its own motion, provided dismissal does not
precede service of process on defendant; failure to provide prior notice of such action
is not “per se reversible error”), we nevertheless reverse the district court’s
determination that the Board was entitled to such immunity. The district court did not
engage in a traditional analysis of whether the Board was entitled to Eleventh
Amendment immunity as an arm of the state. Gorman v. Easley, 257 F.3d 738, 743
(8th Cir. 2001) (in determining the application of the Eleventh Amendment to an
agency, courts must consider: “(1) an agency’s powers and characteristics under state
law; (2) an agency’s relationship to the state--its autonomy from the state and degree
of control over its own affairs; and (3) whether any award would flow from the state
treasury”), rev’d on other grounds, Barnes v. Gorman, 536 U.S. 181 (2002); see also
Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48 (1994) (noting “Courts of
Appeals have recognized the vulnerability of the State’s purse as the most salient
factor in Eleventh Amendment determinations”). This analysis will involve the
determination of facts not before this court, and we remand for the district court’s
consideration of that matter in the first instance.1 See Greenwood v. Ross, 778 F.2d


      1
        In Miener v. Missouri, 673 F.2d 969, 980 (8th Cir. 1982), this court held that
Eleventh Amendment immunity did not apply to the Board of Education of the Special
School District of St. Louis County. It is not clear from the record on appeal whether
there are any significant factual distinctions between Miener and this case, but we note
that, contrary to the Board’s argument, Miener remains good law, see, e.g., EEOC v.
Hickman Mills Consol. Sch. Dist. No. 1, 99 F. Supp. 2d 1070, 1080 (W.D. Mo. 2000)

                                          -3-
448, 453-54 (8th Cir. 1985) (reversing dismissal, on Eleventh Amendment grounds,
of action against University of Arkansas at Little Rock; this court was unable to
determine basis of district court’s conclusion that Eleventh Amendment immunity
applied, because district court’s decision was “stated in one conclusory sentence”).

      Accordingly, we affirm in part, reverse in part, and remand for proceedings
consistent with this opinion.2 We deny the Board’s motion to strike portions of Wade-
Lemee’s appendix as moot.
                        ______________________________




(citing Miener for proposition that school boards are not entitled to Eleventh
Amendment immunity), and appears consistent with the decisions of other circuits,
which have almost universally found local school districts are not arms of the state,
see, e.g., Febres v. Camden Bd. of Educ., 445 F.3d 227, 229-37 (3d Cir. 2006)
(applying three-factor test similar to Gorman’s test; holding that school district was
not arm of state based on its legal status and autonomy, and lack of evidence that state
would be obligated to pay judgment that school district could not pay); Eason v. Clark
County Sch. Dist., 303 F.3d 1137, 1141 n.2 (9th Cir. 2002) (collecting cases).
      2
       Because we remand for reconsideration of the Eleventh Amendment issue, it
is unnecessary for us to determine whether the district court abused its discretion in
denying Wade-Lemee’s motion to reconsider. See Franklin v. City of Evanston, 384
F.3d 838, 845 n.4 (7th Cir. 2004).

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