UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOUTH CAROLINA TROOPERS 

FEDERATION LOCAL 13 IUPA AFLCIO; 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, 


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Affirmed by unpublished per curiam opinion.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.,

2 SOUTH CAROLINA TROOPERS v. STATE OF SOUTH CAROLINA
Alexandria, Virginia, for Appellants. Stephen T. Savitz, GIGNILLIAT, 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Unpublished opinions are not binding precedent in this circuit.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 violations of the Fair Labor Standards Act and deprivation of the Federation’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 subsequently filed a motion to amend the complaint to add a new defendant, Boykin Rose, the Director of the Department of Public Safety.

The district court granted the defendants’ motion for summary judgment and denied as moot the Federation’s motion to amend the complaint. 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

SOUTH CAROLINA TROOPERS v. STATE OF SOUTH CAROLINA 3
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 failure to name a "person." Nonetheless, the Federation did not appeal the

district court’s order denying its motion to amend the complaint. 

2Although the district court declined to address the defendants’ argument that the State and the Department of Public Safety did not qualify

as "persons" under Section 1983, we may affirm on any ground supported 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 crossappeal. 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). 

4 SOUTH CAROLINA TROOPERS v. STATE OF SOUTH CAROLINA