                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


SOUTH CAROLINA TROOPERS                  
FEDERATION LOCAL 13 IUPA AFL-
CIO; JASON S. BRYANT; LARRY L.
CLEVELAND; TREVOR R. CLINTON;
DONALD W. COX; TERENCE A.
D’ALESANDRO; DONALD L. DARROW;
GARY S. DAVIS; DERRICK J. GAMBLE;
MICHAEL M. GETER; W.R. GOURDINE;
BRIAN M. HAGER; MARC T.
JENNINGS, SR.; MATTHEW E. MORLAN;
DAVID L. PRICE; JOHN G. RESPASS;
CHARLES B. RICHARDS; DANIEL C.G.
TURNO; INTERNATIONAL UNION OF
POLICE ASSOCIATIONS AFL-CIO;                No. 03-2011
STEVEN BROWN; DAVID LEE
CHAPMAN; JONATHAN L. DAVIS;
MATTHEW G. DAVIS; JEFFERY S.
HEATHERLY; KATHY A. HILES; MARC
A. HOYLE; SCOTT B. JAMES; HAROLD
W. LONG; BRIAN C. MILLER;
WILLIAM SHAWN OWENS; BRIAN C.
PITTS; JONATHAN J. ROBINSON;
JEFFREY G. STEVENS; STACY W.
TUKES; CHAD D. WALTZ; ROBERT M.
AUSTIN; ROY B. BARWICK, III;
ROBERT C. IVEY,
                Plaintiffs-Appellants,
                                         
2      SOUTH CAROLINA TROOPERS v. STATE OF SOUTH CAROLINA


                                       
                and
TRAVIS BREWINGTON; GREGORY B.
BROWN; RODNEY C. BROWN; SEAN C.
GIBSON; CRAIG C. HARRELSON; VINCE

                                       
B. MCGUIGAN; R. DALE TREVATHAN,
                         Plaintiffs,
                 v.
STATE OF SOUTH CAROLINA; SOUTH
CAROLINA DEPARTMENT OF PUBLIC
SAFETY,
             Defendants-Appellees.
                                       
           Appeal from the United States District Court
          for the District of South Carolina, at Columbia.
           Joseph F. Anderson, Jr., Chief District Judge.
                           (CA-02-1158-3)

                        Argued: May 6, 2004

                      Decided: August 17, 2004

    Before WIDENER, LUTTIG, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: James Bryan Coppess, AFL-CIO, Washington, D.C., for
Appellants. Shahin Vafai, GIGNILLIAT, SAVITZ & BETTIS,
Columbia, South Carolina, for Appellees. ON BRIEF: Michael T.
Leibig, ZWERDLING, PAUL, LEIBIG, KAHN & WOLLY, P.C.,
       SOUTH CAROLINA TROOPERS v. STATE OF SOUTH CAROLINA           3
Alexandria, Virginia, for Appellants. Stephen T. Savitz, GIGNIL-
LIAT, SAVITZ & BETTIS, Columbia, South Carolina, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   This case involves an action filed by the South Carolina Troopers
Federation and various other organizations (hereinafter collectively
referred to as the "Federation") against the State of South Carolina
and the South Carolina Department of Public Safety, alleging viola-
tions of the Fair Labor Standards Act and deprivation of the Federa-
tion’s First and Fourteenth Amendment rights. The district court
granted the defendants’ motion for partial dismissal as to the FLSA
claims. The parties then filed cross-motions for summary judgment as
to the Federation’s two remaining claims. The Federation subse-
quently filed a motion to amend the complaint to add a new defen-
dant, Boykin Rose, the Director of the Department of Public Safety.
The district court granted the defendants’ motion for summary judg-
ment and denied as moot the Federation’s motion to amend the com-
plaint. The Federation now appeals only the district court’s order
granting summary judgment in favor of the defendants. We affirm,
albeit on different grounds.

   The district court properly construed the Federation’s remaining
causes of action as claims arising under 42 U.S.C.A. § 1983. A cause
of action under Section 1983 requires the deprivation of a civil right
by a "person" acting under color of state law. 42 U.S.C.A. § 1983. It
is now well settled that a state cannot be sued under Section 1983
(West 2003). Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989) ("[N]either a State nor its officials acting in their official
capacities are ‘persons’ under § 1983."). This rule applies "to States
or governmental entities that are considered ‘arms of the State’ for
4       SOUTH CAROLINA TROOPERS v. STATE OF SOUTH CAROLINA
Eleventh Amendment purposes." Id. at 70. For Eleventh Amendment
purposes, the Department of Public Safety is considered an arm of the
State of South Carolina. Accordingly, it cannot be sued under Section
1983, as the Federation conceded at the oral argument of this appeal.1
Because neither the State of South Carolina nor the Department of
Public Safety qualify as "persons" under Section 1983, we affirm the
district court’s grant of summary judgment in favor of the defendants.2

                                                               AFFIRMED

    1
    In fact, counsel conceded that unless the Federation was allowed to
amend its complaint, it would "lose" on its Section 1983 claims for fail-
ure to name a "person." Nonetheless, the Federation did not appeal the
district court’s order denying its motion to amend the complaint.
  2
    Although the district court declined to address the defendants’ argu-
ment that the State and the Department of Public Safety did not qualify
as "persons" under Section 1983, we may affirm on any ground sup-
ported by the record. Scott v. United States, 328 F.3d 132, 137 (4th Cir.
2003) ("We are, of course, entitled to affirm on any ground appearing in
the record, including theories not relied upon or rejected by the district
court."). On appeal the defendants continue to argue that they are not
amenable to suit because they do not qualify as "persons" under Section
1983. In response, the Federation appears to contend that the defendants
cannot raise such an argument in their defense without filing a cross-
appeal. See Appellant’s Brief at 2. We disagree. A prevailing party may
defend a judgment on any ground, including theories not relied upon or
even rejected by the district court, so long as that party seeks to preserve,
and not modify, the judgment. See El Paso Nat. Gas Co. v. Neztsosie,
526 U.S. 473, 479 (1999).
