1

The Honorable Ronald E. Longstaff, Chief United States District Judge for the

Southern District of Iowa, sitting by designation.

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
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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
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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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.
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.

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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
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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
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"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.