             United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 17-2101
                    ___________________________

                              Donald Stephens,

                   lllllllllllllllllllll Plaintiff - Appellant,

                                       v.

                                Leslie Jessup,

                  lllllllllllllllllllll Defendant - Appellee,

                        Amtote International, Inc.,

                        lllllllllllllllllllll Defendant.
                                ____________

                 Appeal from United States District Court
            for the Western District of Arkansas - Hot Springs
                             ____________

                         Submitted: March 9, 2018
                          Filed: March 12, 2018
                               [Published]
                              ____________

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________
PER CURIAM.

       Donald Stephens brought a civil rights action under 42 U.S.C. § 1983 against
police officer Leslie Jessup after a dispute at the Oaklawn Jockey Club in Hot
Springs, Arkansas. In a prior appeal, we concluded that Stephens’s claims were not
precluded by previous litigation between Stephens and Oaklawn. See Stephens v.
Jessup, 793 F.3d 941 (8th Cir. 2015). On remand, the district court granted summary
judgment in favor of Jessup on the ground that Stephens brought his claims against
Jessup in his official capacity only, such that the suit was merely a suit against
Jessup’s public employer, the city of Hot Springs. Reasoning that a city cannot be
vicariously liable under § 1983 for the acts of an employee unless there is an
unconstitutional policy or custom, and that Stephens offered no evidence that any
alleged deprivation of rights was the result of such a policy or custom, the court
dismissed the action. The court later denied Stephens’s motion to alter or amend the
judgment.

       Stephens appeals, and we reverse the summary judgment. Before the remand,
both Jessup and the district court expressly recognized that Jessup was being sued
“individually.” In response to Jessup’s motion to dismiss, Stephens asserted that he
was “bringing this action against Leslie Jessup in his individual capacity acting under
color of state law as a law enforcement officer.” R. Doc. 8, at 1 (emphasis added).
Jessup never claimed in response that he was sued in his official capacity only. To
the contrary, in support of his contention that res judicata barred the action, he
replied that Stephens was “asserting the same claims against Leslie Jessup,
individually, that he asserted against Leslie Jessup as an agent of Oaklawn in the 2010
Lawsuit.” R. Doc. 10, at 3 (emphasis added). Jessup continued by arguing that “[t]he
judgment in favor of Oaklawn, sued alone, in the 2010 Lawsuit, is res judicata, or
conclusive, as to the same claimed actions against Defendant Jessup personally in the
present action.” Id. (emphasis added). The district court, in granting Jessup’s motion
to dismiss, concluded that “Plaintiff is barred from relitigating these claims against

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Jessup individually.” R. Doc. 21, at 4 (emphasis added). Although this court
disagreed with the district court’s conclusion about issue preclusion, we never
questioned the assumption of the parties and the district court that Jessup was sued
in his individual capacity.

      We thus conclude that Jessup acquiesced in an unexpressed motion to amend
the complaint to include individual-capacity claims against him, that a formal motion
to so amend the complaint was not necessary, and that the complaint was
correspondingly amended. Cf. Wealot v. Brooks, 865 F.3d 1119, 1130 (8th Cir. 2017)
(Wollman, J., concurring). We need not address the denial of relief under Rule 59(e).

      The judgment is reversed, and the case is remanded for further proceedings.
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