                        United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 ___________

                          Nos. 96-2921 and 96-3062
                                 ___________

Ronald M. Murphy,                     *
                                      *
     Plaintiff - Appellee/            *
     Cross-Appellant.                 *
                                      *
     v.                               *
                                      *Appeal from the United States
State of Arkansas; Ark. Employment     *                           District
Court for the
Security Department; Ark. Department   *                           Eastern
District of Arkansas.
of Finance and Administration; Phil    *
Price; William D. Gaddy; Bob Morgan;   *
Larry Hiett; Hugh Havens; Richard   *
Weiss; Artee Williams,              *
                                    *
      Defendants - Appellants/      *
      Cross-Appellees.              *
                               ___________

                              Submitted: May 23, 1997
                                  Filed:   October 15, 1997
                                 ___________

Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN,
     Circuit Judge.
                             ___________

LOKEN, Circuit Judge.

      Former Arkansas employee Ronald M. Murphy commenced this action
seeking equitable relief and damages from the State of Arkansas, two state
agencies, and seven
state officials. Murphy alleged that he was wrongfully terminated by the
Arkansas Employment Security Department on account of his race and age in
violation of Title VII and the Age Discrimination in Employment Act. He
asserted claims under 42 U.S.C. § 1983 for violations of his First
Amendment, due process, and equal protection rights. He also asserted
pendent state law claims under the Arkansas Civil Rights Act and for libel,
tortious interference with contract, outrage, and wrongful discharge. At
the close of discovery, the district court1 granted defendants' motion for
summary judgment dismissing all of Murphy's claims. Murphy then filed a
motion to reconsider, and the court reinstated his § 1983 equal protection
claims and his pendent claims under the Arkansas Civil Rights Act.
Defendants appeal this partial denial of summary judgment, arguing they are
entitled to Eleventh Amendment and qualified immunity.       Murphy cross-
appeals the dismissal of his remaining claims.      We affirm in part the
denial of summary judgment and dismiss the cross-appeal for lack of
jurisdiction.

                         I.   Jurisdiction Issues.

      After defendants moved for summary judgment, the district court
entered an order dismissing the Title VII and ADEA claims as time-barred
and dismissing all the pendent claims without prejudice.       The district
court's docket sheet records this May 9, 1996, order as "terminating [the]
case," making it a final order for appeal purposes. See Goodwin v. United
States, 67 F.3d 149, 151 (8th Cir. 1995). Recognizing that his entire
lawsuit was thus in jeopardy, Murphy filed a timely motion to alter or
amend the judgment, pointing out to the district court that its May 9 order
did not address his § 1983 claims. Responding to that motion, the district
court issued a June 19 order rejecting defendants' claim of Eleventh
Amendment immunity and reinstating Murphy's § 1983 equal protection claims
on the ground that defendants are not entitled to summary judgment
dismissing those claims on qualified immunity grounds. The court




     1
       THE HONORABLE HENRY WOODS, United States District Judge for the
Eastern District of Arkansas.

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also reinstated pendent state law claims under the Arkansas Civil Rights
Act "[a]s a matter of judicial economy," a ruling not at issue on appeal.
Defendants appealed the district court's Eleventh Amendment and qualified
immunity rulings, and Murphy filed a cross-appeal from the May 9 order.
Both sides raise jurisdictional issues.

      A. We agree with defendants that we lack jurisdiction over Murphy's
cross-appeal.2 The May 9 order was an appealable final order. However,
by reinstating some of Murphy's claims, the June 19 order changed the
essential nature of the May 9 order. The combined effect of both orders
is a non-appealable grant of partial summary judgment dismissing some of
Murphy's claims. We have jurisdiction over defendants' appeal only if it
is a proper interlocutory appeal of the Eleventh Amendment and qualified
immunity rulings. We have jurisdiction over Murphy's cross-appeal only if
it is properly pendent to the interlocutory appeal, that is, if the cross-
appeal issues are “inextricably intertwined” with the issues of Eleventh
Amendment and qualified immunity. See Swint v. Chambers County Comm'n, 115
S. Ct. 1203, 1212 (1995); Kincade v. City of Blue Springs, 64 F.3d 389, 394
(8th Cir. 1995), cert. denied, 116 S. Ct. 1565 (1996).       In the cross-
appeal, Murphy argues that his Title VII and ADEA claims were improperly
dismissed as time-barred and that his remaining




      2
         We reject defendants' contention that the cross-appeal is untimely. Murphy's
motion to alter or amend the May 9 order suspended the time to appeal that order until
30 days after the district court disposed of the motion. See Fed. R. App. P. 4(a)(4).
When the district court disposed of the motion by its June 19 order, defendants filed
a timely interlocutory appeal from that order on July 15. Murphy's July 29 cross-appeal
was timely because it was filed within 14 days of defendants' appeal. See Fed. R. App.
P. (4)(a)(3). Defendants argue that the cross-appeal is untimely because Rule 4(a)(3)
is limited to a cross-appeal from an unfavorable part of the judgment or order initially
appealed. However, the language of Rule 4(a)(3) is not so limited -- “If one party
timely files a notice of appeal, any other party may file a notice of appeal within 14
days" -- and we agree with courts that have declined to interpret the Rule so
restrictively. See Bridgestone/Firestone, Inc. v. Local Union No. 998, 4 F.3d 918, 923-
24 (10th Cir. 1993).

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pendent claims should be reinstated. These issues are not in the least bit
intertwined with issues of Eleventh Amendment and qualified immunity.
Therefore, the cross-appeal must be dismissed for lack of jurisdiction.
See Erickson v. Holloway, 77 F.3d 1078, 1081 (8th Cir. 1996).

      B. Relying on Johnson v. Jones, 115 S. Ct. 2151, 2156-57 (1995),
Murphy argues that we lack jurisdiction to review the district court’s
interlocutory qualified immunity ruling because it was based upon a genuine
issue of material fact, namely, whether defendants discriminated against
Murphy on account of his race. However, even if the underlying claims
raise genuine issues of material fact, we have interlocutory jurisdiction
to consider the primary qualified immunity issue of law -- “whether, in
view of the facts that the district court deemed sufficiently supported for
summary judgment purposes, the individual defendants’ conduct was
objectively reasonable given their knowledge and the clearly established
law.” Waddell v. Forney 108 F.3d 889, 890 (8th Cir. 1997); see Behrens v.
Pelletier, 116 S. Ct. 834, 842 (1996).
                    II. Eleventh Amendment Immunity.

      Defendants argue that the district court erred in concluding that
Murphy’s § 1983 claims are not barred by the Eleventh Amendment. This is
an issue that may be raised by interlocutory appeal under the collateral
order doctrine. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139 (1993). We agree in part with defendants' contention.

      First, it is well settled that the Eleventh Amendment bars Murphy's
§ 1983 claims against the State of Arkansas and its two agencies, the
Employment Security Department and the Department of Finance and
Administration. See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh,
438 U.S. 781 (1978). Thus, the district court erred in reinstating the
§ 1983 equal protection claims against these defendants.




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      Second, § 1983 damage claims against the seven individual defendants
acting in their official capacities are likewise barred, either by the
Eleventh Amendment or because in these capacities they are not "persons"
for § 1983 purposes. See Will v. Michigan Dept. of State Police, 491 U.S.
58 (1989). However, Murphy's § 1983 equal protection claims also seek
equitable relief such as reinstatement as a state employee.          State
officials acting in their official capacities are § 1983 "persons" when
sued for prospective relief, and the Eleventh Amendment does not bar such
relief. See Treleven v. University of Minn., 73 F.3d 816, 819 (8th Cir.
1996).    Thus, the district court should have reinstated only Murphy's
§ 1983 equal protection claims for prospective relief against the
individual defendants acting in their official capacities.

      Third, the Eleventh Amendment does not bar damage claims against
state officials acting in their personal capacities. However, absent a
clear statement that officials are being sued in their personal capacities,
"we interpret the complaint as including only official-capacity claims."
Egerdahl v. Hibbing Comm. College, 72 F.3d 615, 619 (8th Cir. 1995).
Murphy's initial complaint contained no such clear statement. Therefore,
the individual defendants contended in their motion for summary judgment
that the Eleventh Amendment totally bars Murphy's damage claims. Murphy
responded by filing a motion for leave to amend his complaint to assert
personal capacity claims.
      Without ruling on the motion to amend, the district court denied the
individual defendants summary judgment on Eleventh Amendment grounds
because “defendants cannot seriously argue that they had no notice that
they were sued in [their] individual capacities.”       However, we do not
require that personal capacity claims be clearly-pleaded simply to ensure
adequate notice to defendants. We also strictly enforce this pleading
requirement because "[t]he Eleventh Amendment presents a jurisdictional
limit on federal courts in civil rights cases against states and their
employees."   Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989); see Wells
v. Brown, 891 F.2d 591, 593 (6th Cir. 1989). Although other circuits have
adopted a more lenient pleading rule, see Biggs v. Meadows, 66 F.3d 56, 59-
60 (4th Cir. 1995), we believe that our rule is more




                                    -5-
consistent with the Supreme Court's Eleventh Amendment jurisprudence.   In
any event, we are bound by Egerdahl and Nix.

      Though the district court erred in excusing Murphy's failure to
clearly assert personal capacity claims in his initial complaint, that does
not resolve the issue. When defendants sought summary judgment on this
ground, Murphy moved to amend his complaint. The district court has not
ruled on that motion, which is committed to its sound discretion. See Nix,
879 F.2d at 433, n.3.       Given the district court's conclusion that
defendants had sufficient notice they were being sued in their personal
capacities, we are confident that the district court would grant Murphy
leave to amend the complaint to state personal-capacity equal protection
claims if we remanded for consideration of that issue.       And given the
liberality of Fed. R. Civ. P. 15(a) regarding amendments, granting such
leave to amend would not abuse the court's discretion.          See, e.g.,
Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989). Thus, we deem the
complaint amended and affirm this portion of the district court's Eleventh
Amendment ruling. Cf. Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978).

                        III.   Qualified Immunity.

      The individual defendants argue that the district court erred in
denying their motion for summary judgment on qualified immunity grounds.
State officials are shielded from § 1983 damage liability if their conduct
did not violate clearly established constitutional rights of which a
reasonable official would have known. See Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). A right is clearly established, for qualified immunity
purposes, if the "contours of the right [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

      The district court denied defendants summary judgment on Murphy's
§ 1983 equal protection claim because "[t]hey are accused of discriminating
against [Murphy]




                                    -6-
on the basis of his race and treating him differently than similarly
situated white employees. The law regarding such conduct was, of course,
well established in October 1993, when [Murphy] was terminated." We agree.
Unlike Murphy's rather preposterous First Amendment and procedural due
process claims, which the district court did not reinstate, it has been
clearly established for many years that the Equal Protection Clause
prohibits a State, when acting as employer, "from invidiously
discriminating between individuals or groups" based upon race. Washington
v. Davis, 426 U.S. 229, 239 (1976). The individual defendants argue they
had objectively reasonable reasons to terminate Murphy. But the relevant
question at this stage of the litigation is whether the facts of record
viewed in the light most favorable to Murphy could be found to constitute
a violation of his clearly established equal protection rights. Murphy
submitted affidavits to the district court containing reasonably specific
allegations of racially discriminatory conduct and of preferential
treatment of white employees and job applicants. On this record, we agree
with the district court that the individual defendants are not entitled to
summary judgment dismissing Murphy's § 1983 equal protection damage claims
on qualified immunity grounds.

                             IV.   Conclusion.

      The district court properly denied the individual defendants summary
judgment dismissing Murphy's § 1983 equal protection claims on qualified
and Eleventh Amendment immunity grounds. Accordingly, the court's order
reinstating equal protection claims against the individual defendants (i)
acting in their personal capacities, and (ii) acting in their official
capacities insofar as prospective relief is sought, is affirmed. The court
should dismiss those equal protection claims against the State of Arkansas,
the Employment Security Department, and the Department of Finance and
Administration, and the damage claims against the individual defendants
acting in their official capacities, as barred by Eleventh Amendment
immunity. Murphy’s cross-appeal (No. 96-3062) is dismissed for lack of
jurisdiction.     The case is remanded for further proceedings not
inconsistent with this opinion.




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A true copy.


     Attest:


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




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