                         United States Court of Appeals
                             For the Eighth Circuit
                                  ___________

                                  No. 00-1313EM
                                   ___________

Harry Grey,                             *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
Douglas F. Wilburn, State of Missouri * District Court for the Eastern
Office of the Secretary of State and    * District of Missouri
Rebecca Cook,                           *
                                        *
             Appellees.                 *
                                   ___________

                          Submitted: September 13, 2001

                             Filed: November 6, 2001 (Corrected 11/12/01)
                                   ___________

Before MORRIS SHEPPARD ARNOLD and MURPHY, Circuit Judges, and
      LONGSTAFF,1 District Judge.
                              ___________

RONALD E. LONGSTAFF, District Judge.

       Harry Grey, who suffers from bipolar affective disorder, brought this action
against the Office of the Missouri Secretary of State and two of its employees,
alleging they discriminated against him on the basis of his disability in denying his
application for re-registration as a securities agent in Missouri. Specifically, Count
I of Grey's complaint alleged violations of the Americans with Disabilities Act of


      1
      The Honorable Ronald E. Longstaff, Chief United States District Judge for the
Southern District of Iowa, sitting by designation.
1990 ("ADA"); count II set forth similar allegations under section 504 of the
Rehabilitation Act of 1973 ("Rehabilitation Act"); and count III was filed pursuant
to 42 U.S.C. § 1983, alleging the defendants violated the Equal Protection Clause of
the Fourteenth Amendment. On December 16, 1999, the district court granted the
defendants' motion to dismiss all counts. Based on recent precedent from the United
States Supreme Court and this circuit, we now reverse the district court's decision
with regard to the ADA and Rehabilitation Act claims, and affirm its dismissal of the
section 1983 claim.

                                             I.
       We first address the district court’s dismissal of Grey's ADA claim. This Court
reviews a district court’s decision on a motion to dismiss de novo, applying the same
standards as those employed by the district court. Riley v. St. Louis County of
Missouri, 153 F.3d 627, 630 (8th Cir. 1998).
       Count I of Grey's complaint alleges, in relevant part: "Defendant Office of
Secretary of State and its agents, including Defendant Wilburn, delayed action on
plaintiff's license application and subsequently denied his application and failed to
make reasonable accommodations or modifications to state licensure policy, all on
account of his disability." Complaint ¶ 12 (emphasis added). Plaintiff's prayer for
relief under count I then urges the district court to "enter judgment in his favor and
against Defendant Office of Secretary of State for actual and punitive damages,
appropriate injunctive relief including issuance of a securities license, attorneys' fees
and costs for such additional relief as may be just and proper in the circumstances."
Complaint at 3-4.
       The district court dismissed Grey's ADA and Rehabilitation Act claims in their
entirety on the grounds that the State has Eleventh Amendment immunity to suit
under both statutes. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir.
1999) (en banc) (holding thatTitle II of the ADA, governing discrimination by public
entities, did not validly abrogate States' Eleventh immunity from suit by private
individuals in federal court, and that in any case, public officials could not be sued

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under Title II in their individual capacities);2 and Bradley v. Arkansas Dept. of Educ.,
189 F.3d 745, 756 (8th Cir. 1999) (States' Eleventh Amendment immunity from suit
under Rehabilitation Act not waived through acceptance of federal funds).3 Since
Alsbrook and Bradley, this Court has clarified that under Ex Parte Young4 and its
progeny, private individuals can in fact sue state officials under the ADA for
prospective, injunctive relief only. See Gibson v. Arkansas Dep't of Correction, Nos.
01-1038, 01-1114, 2001 WL 1041845 (Sept. 12, 2001) (citing Board of Trustees of
the University of Alabama v. Garrett, 121 S. Ct. 955, 967-68 (2001).5
       The State defendants do not dispute the law on this issue, but argue that
plaintiff's prayer for relief under count I seeks relief only from the State, and not from
the individuals. Accordingly, Eleventh Amendment immunity should apply to bar
plaintiff's ADA claim.
       This Court agrees plaintiff's prayer for relief is not well-crafted under this
claim, but believes that in viewing the allegations as a whole, it is clear plaintiff's
charges are in fact directed against the individual defendants. See Complaint ¶ 12.
To remove all doubt, on remand, plaintiff should be allowed permission to amend his
prayer to expressly seek prospective, injunctive relief from the state officials in their
official capacities.


      2
         On January 25, 2000, the United States Supreme Court granted in part the
plaintiff/petitioner's writ of certiorari. See Alsbrook v. Arkansas, 528 U.S. 1146
(2000). The writ of certiorari subsequently was dismissed on March 1, 2000.
Alsbrook v. Arkansas, 529 U.S. 1001 (2000).
      3
       As discussed in section II below, Bradley subsequently was vacated in part
in Jim C. v. Arkansas Dep't of Educ., 197 F.3d 958 (8th Cir. 1999), cert. denied
Arkansas Dep't of Educ. v. Jim C., 121 S.Ct. 2591 (2001).
      4
          209 U.S. 123 (1908).
      5
        The Court notes that plaintiff concedes in his appellate brief that he is not
entitled to money damages under this claim, and now seeks only prospective,
injunctive relief.

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                                           II.
       Grey's Rehabilitation Act claim under count II of his complaint runs parallel
to his ADA claim. Relying on the Eighth Circuit's decision in Bradley, the district
court dismissed count II on the grounds of immunity. Subsequent to the district
court's decision, the Eighth Circuit granted the Bradley plaintiffs' petition for
rehearing en banc, and reversed the panel's ruling. See Jim C. v. United States,
235 F.3d 1079, 1081 (8th Cir. 2000). In a five to four decision, the Jim C. court
concluded that section 504 of the Rehabilitation Act is in fact a valid exercise of
Congress' spending power, and that states waive their immunity with respect to
section 504 suits by accepting federal funds. Id. Based on Jim C., we therefore
reverse the district court's dismissal of Grey's Rehabilitation Act claim.

                                          III.
       Grey pled count III of his complaint under 42 U.S.C. § 1983, alleging
defendant Wilburn's conduct with regard to Grey's application for re-licensure
violated his Fourteenth Amendment rights.6 The district court dismissed this claim
on the basis that it is predicated on the same allegations as Grey's ADA and
Rehabilitation Act claims. See, e.g., Alsbrook, 184 F.3d at 1011 ("'the comprehensive
enforcement mechanisms provided under section 504 [of the Rehabilitation Act] and


      6
          Count III of Grey's complaint states in its entirety:

      22.      The conduct of Defendant Wilburn, as described herein, was undertaken
               under color of statute, regulation, custom or usage of the State of
               Missouri within the meaning of 42 U.S.C. § 1983.

      23.      The conduct of Defendant Wilburn, as described herein, was undertaken
               on account of plaintiff's disability, was intentional and constituted a
               violation of plaintiff's rights under the Fourteenth Amendment to the
               United States Constitution.

      Complaint ¶¶ 22-23.

                                            -4-
the ADA suggest Congress did not intend violations of those statutes to be also
cognizable under § 1983'") (quoting Davis v. Francis Howell School District, 104
F.3d 204, 206 (8th Cir. 1997)).
       Grey attempts to distinguish Alsbrook on the basis that in that case, the
plaintiffs' section 1983 claim was based specifically on a violation of rights under the
ADA, whereas Grey's claim purports to be based on an equal protection violation
under the Fourteenth Amendment. See, e.g., Salcido v. Woodbury Cty., Iowa, 66 F.
Supp. 2d 1035, 1046 (N.D. Iowa 1999) ("[plaintiff] is not seeking to enforce the ADA
or the [Rehabilitation Act] through a § 1983 action. Instead, [plaintiff's] remaining
constitutional claims, brought pursuant to § 1983, as pleaded, go to violation of his
constitutional rights . . . even though those constitutional claims may arise from
essentially the same nucleus of operative facts.").
       This Court is not convinced. Regardless of how Grey styles his claim, the fact
remains he alleged no facts to support his "equal protection" claim other than those
set forth in the statutory claims. See Complaint ¶¶ 22-23. Such a claim is not
"separate and independent," as Grey alleges. Furthermore, in Davis, as in the present
case, the plaintiffs specifically alleged what they believed to be an independent
constitutional violation under their section 1983 claim and the court nevertheless
found it to be subsumed by the ADA and Rehabilitation Act claims. See Davis, 104
F.3d at 206.
       Grey argues alternatively that even if not allowed to proceed with his section
1983 claim for money damages, he should be allowed to seek injunctive relief. See
Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997) ("State officials acting in their
official capacities are § 1983 "persons" when sued for prospective relief, and the
Eleventh Amendment does not bar such relief."). In view of this Court's holdings in
both Alsbrook and Davis, however, the fact Grey's section 1983 claim for injunctive
relief may be permissible under the Eleventh Amendment is not dispositive of the
issue. As explained by the court in Alsbrook:
               Section 1983 provides a federal cause of action for plaintiffs to
       sue officials acting under color of state law for alleged deprivations of

                                          -5-
      "rights, privileges, or immunities secured by the Constitution and the
      laws" of the United States. See 42 U.S.C. § 1983. It is well recognized
      that a plaintiff may use section 1983 to enforce not only rights contained
      in the constitution, but also rights that are defined by federal statutes.
      See Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980); Arkansas Med. Soc'y,
      Inc. v. Reynolds, 6 F.3d 519, 523 (8th Cir. 1993). An exception to this
      general rule exists when a comprehensive remedial scheme evidences a
      congressional intent to foreclose resort to section 1983 for remedy of
      statutory violations. See Middlesex County Sewerage Auth v. National
      Sea Clammers Ass'n, 453 U.S. 1, 19-21 (1981). Courts should presume
      that Congress intended that the enforcement mechanism provided in the
      statute be exclusive. See Pona v. Cecil Whittaker's, Inc., 155 F.3d 1034,
      1038 (8th Cir. 1998).

Alsbrook, 184 F.3d at 1010-11. In short, when Congress has shown an intent to limit
available avenues for relief, this Court must abide by such an intent. Plaintiff may
appropriately proceed for injunctive relief under the ADA and the Rehabilitation Act.

       The decision of the district court is affirmed in part and reversed in part. The
case is remanded to the district court with directions to reinstate counts I and II in a
manner consistent with this Order.

      A true copy.

             Attest:

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




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