### *The Hon. Byron R. White, Asso ciate Justice, Retired, Supreme

Court of the United States, sitting by designation. _____________ No. 95-1700MN

_____________ Jane Marie Egerdahl, * * Appellant, * * v. * * On Appeal from the United * States District Court Hibbing Community College; * for the District of Minnesota Community College * Minnesota. System; State of Minnesota; * Myron Schmidt; Anthony Kuznik; * and Jerry Krause, * * Appellees. *

___________ Submitted: October 19, 1995 Filed: December 18, 1995

___________ Before R ICHARD S. ARNOLD, Chief Judge, WHITE, Associate Justice, an d * LOKEN, Circuit Judge.

___________ RICHARD S. ARNOLD, Chief Judge.
Jane Marie Egerdahl claims that the State of Minnesota, the Min nesota Community College System, Hibbing Community Coll ege ("Hibbing"), and three Hibbing employees discriminated against her on the basis of race and gende r and, therefore, viola ted Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"), 42 U.S.C. § 1981, 42 U.S.C. § 1983, Title VI of the Civil Rights

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Act of 1964, 42 U.S.C. § 2000d ("Title VI"), and the Equal Protectio n Clause of the Fourteenth Amendment. The District Court dismisse d Egerdahl's suit. We reverse the District Court's dismissal of Egerdahl's Title IX and Title VI claims, but affirm its decision to dismiss he r § 1981, § 1983, and equal-protection claims.

I.
During the fall of 1992, Jane Marie Egerdahl, who is part Nativ e Ame rican, enrolled in a chemistry class at Hibbing Community College, a state-run school that receives federal funds. Egerdahl claims that Jerry Krause, a chemistry instructor at Hibbing, engaged in a pattern o f discriminatorytreatment based on Egerdahl's race and gender. According to Ege rdahl, she reported Krause's conduct to Hibbing's Dean, Myro n Schmidt, and its President, Anthony Kuznik, but the discriminatio n continued throughout the fall semester.

OnOctober 1, 1993, Egerdahl filed charges with the Minnesot a Department of Human R ights, claiming that the defendants had violated the Minnesota Human Right s Act ("MHRA"), Minn. Stat. § 363.03. Egerdahl then withdrew her charge with the Department of Human Rights and, on June 7 , 1994, filed this comp laint in federal court, alleging violations of Title IX, § 1981, § 1983, t he Equal Protection Clause, the MHRA, and state tort law. She later amend ed her complaint to drop her state-law claims and to add a claim under Title VI.

The District Court dismissed Egerdahl's suit. It held tha t Egerdahl's Title VI and Title IX claims were governed by the MHRA's oneyear statute of limit ations, Minn. Stat. § 363.06, subd. 3, and that this lim itations period had run before Egerdahl filed suit in federal court
. The District Court also held that the Eleventh A mendment barred Egerdahl's § 1981, § 1983, and equal-protection

### The MHRA provides: 1 

### It is an unfair discriminatory practice: (1) To discriminate in any manner in the full utilizatio n of or benefit from any educational institution, or th e services rendered thereby to a ny person because of race, color, . . . [or] sex . . ..

. . . Minn. Stat. § 363.03, subd. 5.

Under Title IX, No person in the United States shall, on the basis of sex, be excluded from participation in , be denied the benefits of, or be s ubjected to discrimination under any educational program o r activity receiving federal assistance. 20 U.S.C. § 1681. -3- claims.

II.
Egerd ahl argues that the District Court erred by holding that th e MHRA 's one-year statute of limitations governs Title VI and Title I X claims. She asserts that the appropriate statute of limitations is th e six-year limitations period of Minnesota's personal-injury statute, Minn. Stat. § 541.05, subd. 1(5). We agree.
When, as in the case of Title VI and Title IX, a federal statut e does not contain a limitations period, courts must se lect "the most appropriate
or ana logous state statute of limitations." Goodman v. Lukens Stee l Compan y , 482 U.S. 656, 660 (1987). The District Court relied on it s decision in Deli v. University of Minnesota , 863 F. Supp. 958 (D. Minn
. 1994), which held that the MHRA's limitations pe riod should apply to Title IXclaims because "[b]oth the MHRA and Title IX proscribe discrimination in educational institutions on the basis of gend er and essentially seek to make whole the victims of such discrimination." Id. at 962. In addition, 1

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the District Court extended the reasoning that

### Title VI provides: 2


### No person in the United States shall, on grounds of race , color or national origin, be e xcluded from participation in, de nied the benefits of, or be subjected t o discriminationunder any program receiving federa l assistance. 42 U.S.C. § 2000d.

In Minnesota, § 1983 claims are governed by the six-yea r 3 

### limitations period of Minnesota's personal-injury statute, Minn
. Stat. § 541.05, subd. 1(5). Berg v. Groschen , 437 N.W.2d 75, 7 7 (Minn. App. 1989). -5- it employed in Deli to Title VI claims. It concluded that because Title VI and the MHRA both prohibit racial discrimination by educationa l institutions, the MHRA's one-year l imitations period should govern claims 2 under Title VI as well as those under Title IX.

We think that the District Court's decision is inconsistent wit h Wilson v. Garcia , 471 U.S. 261 (1985), which held that 42 U.S.C. § 198 3 claims are subject to the limitations period in each state's personal

injury sta tute. In Wilson , the Supreme Court rejected the argument that 3 § 1983 claims should be governed by the period of limitations in states' civi l-rights statutes. The Court held that § 1983 claims are bette r characterizedas personal-injury actions because it is unlikely that the limitations period for personal-injury actions "ever was, or ever would be , fixe d in a way that would discriminate against federal claims, or b e inconsist ent with federal law in any respect." Id. at 279. The sam e reasoning applies to Title VI and Title IX claims.

Moreover, the District Court's decision fails to take into accoun t the federal interest in uniformity and certainty. See id.

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at 275. "Title VI is a civil rights statute [that is] closely analogous to sections 1983 and 1981." Baker v. Board of Regents of State of Kan. , 991 F.2d 628, 631 (10th Cir. 1993). Indeed, a plaintiff suing a federally

supported program for racial discrimination may bring a claim under any on e of th ese three laws. Because the Supreme Court has characterized bot h § 1983 an d § 1981 as personal-injury statutes, see Goodman , 482 U.S. a t 661-62, Title VI clai ms should also be governed by the limitations period in Minnesota's personal-injury statute. See Tay lor v. Regents of Univ. of Cal. , 993 F.2d 710, 712 (9th Cir. 1993), cert. denied , 114 S. Ct. 89 0 (1994) ( Title VI claims should be governed by the same statute o f lim itations that applies to § 1983 claims); Baker , 991 F.2d at 63 1 (cha racterizing Title VI claims as personal-injury actions "promotes a consistent and uniform framework by which suitab le statutes of limitations can be determined for civil rights claims."); Chambers v. Omaha Pub. Sch. Dis t. , 536 F.2d 222, 225 n.2 (8th Cir. 1976) (Title VI claims ar e "contro lled by the same considerations which inhere in . . . § 1981 an d § 1983 claims.").

As for Title IX, it is also analogous to § 1983 -- both statute s prohibit gender discrimination by state-run schools that receive federal funds. S ee Bougher v. University of Pittsburgh , 882 F.2d 74, 77-78 (3 d Cir. 1989). Furthermore, "Title IX was patterned after Title VI. . . . Except for the substitution of the word `sex' in Title IX to replace the words `race, color or national origin' in Title VI, the two statutes use identical language to describe the benefited cla ss." Cannon v. University of Chicag o , 441 U.S. 677, 694-95 (1979). Therefore, Title IX should b e subject to the same limitations period that applies to § 1983 and Title VI
. We hold that the six-year limitations period of Minn. Stat. § 5 41.05, subd. 1(5 ) governs Title VI and Title IX claims. Because this six-yea r period did not expire before Egerdahl filed suit in federal court, w e reverse the District Court's dismissal of

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Egerdahl's Title VI and Title IX claims.

III.
Egerdahl also appeals the dismissal of her § 1981, § 1983, and equalprotection claims. We affirm as to these claims.

A.

We fi rst address Egerdahl's argument that Congress abrogate d Minnesota's Eleventh Amendment immunity from Egerdahl's equal-protectio n claims. Generally, "in the absence of consent a suit in which the State
or one of its agencies or departments is named as the defendant i s proscribed by the Ele venth Amendment." Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 100 (1984). Congress may pass legislation under the Commerce Clause or Section 5 of the Fourteenth Amendment to override states' Eleventh Amendment immunity. See Pennsylvania v. Union Gas Co. , 491 U.S. 1, 14-23, 57 (1989); Fitzpatrick v. Bitzer , 427 U.S. 445, 45 6 (1976). But Congress must make its intention to abrogate states' immunity "unmistakablyclear in the language of the statute." Atascadero Stat e Hospital v. Scanlon , 473 U.S. 234, 242 (1985).
Egerd ahl asserts that 42 U.S.C. § 2000d-7(a)(1) overrides states ' immunity from equal-p rotection claims that are brought in suits that also allege violations of Title VI or Title IX. Sect ion 2000d-7(a)(1) provides that
[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federa l court for a violation of section 504 of the Rehabilitation Act of 1973 . . ., title IX of the education amendments of 1972 . . ., the Age Discriminat ion Act of 1975 . . ., title VI of the Civil Rights Act of 1964 . . ., or the provisions of any other Fed eral statute prohibiting discrimination by recipients o f Federal financial assistance.

### Egerdahl cites Sharif by Salahuddin v. New York State Educ. 4 

### Dept. , 709 F. Supp. 345 (S.D.N.Y. 1989), a Title IX case in which the court held that the Eleventh Amendment did not bar th e plaintiff from also bringing a n equal-protection claim against the New York State Education Department. See id. at 358. But Sharif does not provide support for Egerdahl's argument. The plain tiff in Sharif sought an injunction ag ainst the Commissioner of Education. Sharif is simply an example of the Ex parte Young , 209 U.S. 12 3 (1908) , exception to the Eleventh Amendment, which permits suit s against state officials for "prospective injunctive relief t o prevent a continuing violationof federal law." Green v. Mansour , 474 U.S. 64, 68 (1985). -8- Altho ughsection 2000d-7(a)(1) does abrogate states' Eleventh Amendmen t immunity from Title VI and Title IX claims, see Franklin v. Gwinett County Pub. Sch. , 503 U.S. 60, 72 (1992), it does not even mention the Equa l Prot ectionClause. Section 2000d-7(a)(1), therefore, does not provid e unmis takable evidence of a congressional intent to override states ' immuni tyfrom equal-protection claims, whether or not these claims ar e brought in suits that also allege violations of Title VI or Title IX. 4

B.
Finally, Egerdahl argues that the District Court erred by holdin g that her § 1981 and § 1983 claims against Kuznik , Schmidt, and Krause were barred by the Eleventh Amendment because she failed to sue these defendant s in their personal capacities.

The Eleventh Amendment does not prevent a plaintiff from seekin g damages from a state official if she sues the official in his persona l capacity. See, e.g. , Scheuer v. Rhodes , 416 U.S . 232, 238 (1974). In Nix
v. Norman , 879 F.2d 429 (8th Cir. 1989), we held that a plaintiff wh o wishes to sue a state official in his personal c apacity must so specify in her complaint. Id. at 431. If a plaintiff's complaint is silent about th e capacityin which she is suing the defendant, we interpret the complaint
as including only official-capacity claims. See DeYoung v. Patten , 89 8 F.2d

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628, 635 (8th Cir. 1990), overruled on other gro unds by Forbes v. Arkansas Educ. Television Communication Network Found. , 2 2 F.3d 1423 (8th Cir.) (en banc), cert. denied , 115 S. Ct. 500 (1994). Citing Nixand DeYoung , the Distri ct Court held that because Egerdahl's amended complaint did no t indicate that she was suing Kuznik, Schmidt, and Krause in their personal cap acities, Egerdahl sued these defendants only in their officia l capacities.
Egerdahl asserts that because the caption and body of her complaint referred to Kuznik, Schmidt, and Krause by name rather than by officia l position, her complai nt provided these three defendants with ample notice that she was suing them in their personal capacities. Egerdahl also point s out that in her respo nse to the motions of Kuznik, Schmidt, and Krause to dismiss h er § 1981 and § 1983 claims, she asked the District Court t o construe her amended complaint as seeking damages from the defendants in their personal capacities. Egerdahl contends that this request provided the d efendants with sufficient notice. We reject both arguments. Ni x requires that a plaintiff's complaint contain a clear statement of her wis h to sue defendants in their personal capacities. Neither a cryptic hint in
a plainti ff's complaint nor a statement made in response to a motion t o dismiss is sufficient.
Egerdahl also argues that the Distri ct Court erred by not permitting her to correct her om ission by amending her complaint a second time. The decisionwhether to allow a party to amend her complaint "is left to the sound discretion of the district courts." Humphreys v. Roche Biomedical Laboratories, Inc. , 990 F.2d 1078, 1081 (8th Cir . 1993). A district court mayrefuse to grant leave to amend if the plaintiff had an earlie r opportunity to cure a defect in her complaint but failed to do so. Wright , Miller & Kane, Federal Practice and Procedure § 1487, at 643-45 (2d ed
. 1990); see, e.g. , Smith v. Ayres , 845 F.2d 1360, 1366 (5th Cir. 1988)
. Egerdahl had such an opportunity when she amended her complaint the first time. Moreover, six days before Egerdahl

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amended her complaint , Kuznik and Schmidt filed a motion to dismiss which cited Ni xand DeYoung and, thus, informed Egerdahl how to sue th e defendants in their personal capacities. In light of Egerdahl's lack of diligence, we do not think that the District Court abused its discretion by denying her leave to amend her complaint a second time.

IV.

For these reasons, we affirm the District Court's dismissal o f Ege rdahl's § 1981, § 1983, and equal-protection claims, but reverse it s dismissal of Egerdahl's Title VI and Title IX claims. We remand this caus e to the District Court for further proceedings consistent with this opinion
.
A true copy.

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