UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-2309

EARL D. OSBORNE, JR.,

Plaintiff - Appellant,

versus

THE COUNTY COMMISSION OF KANAWHA COUNTY, WEST

VIRGINIA, a body corporate; KENT CARPER,

County Commissioner of Kanawha County, West

Virginia; DAVID C. HARDY, County Commissioner

of Kanawha County, West Virginia; HOPPY

SHORES, County Commissioner of Kanawha County,

West Virginia; DAVE TUCKER, Sheriff of Kanawha

County, West Virginia; CHARLES E. KING, JR.,

The Honorable, Judge, Thirteenth Judicial

Circuit, Kanawha County, West Virginia; PAUL

ZAKAIB, JR., The Honorable, Judge, Thirteenth

Judicial Circuit, Kanawha County, West

Virginia; TOD J. KAUFMAN, The Honorable,

Judge, Thirteenth Judicial Circuit, Kanawha

County, West Virginia; JAMES C. STUCKY, The

Honorable, Judge, Thirteenth Judicial Circuit,

Kanawha County, West Virginia; HERMAN C.

CANADY, JR., The Honorable, Judge, Thirteenth

Judicial Circuit, Kanawha County, West

Virginia; IRENE C. BERGER, The Honorable,

Judge, Thirteenth Judicial Circuit, Kanawha

County, West Virginia; LOUIS H. BLOOM, The

Honorable, Judge, Thirteenth Judicial Circuit,

Kanawha County, West Virginia,

Defendants - Appellees.
- 2 -

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. John T. Copenhaver, Jr.,

District Judge. (CA-02-1250-2)

Submitted: May 28, 2004 Decided: September 27, 2005

Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

C. Page Hamrick, Timothy Koontz, Charleston, West Virginia, for

Appellant. Theresa M. Kirk, PULLIN, FOWLER & FLANAGAN, P.L.L.C.,

Charleston, West Virginia; John R. Teare, Jr., Rochelle Lantz

Glover, BOWLES RICE MCDAVID GRAFF & LOVE, L.L.P., Charleston, West

Virginia; John M. Hedges, Teresa J. Lyons, BYRNE & HEDGES,

Morgantown, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

Osborne does not challenge on appeal the district court’s

dismissal of his claims against the Judges in their official

capacities or the dismissal without prejudice of his state law

claims. See United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th

Cir. 2004) (“It is a well settled rule that contentions not raised

in the argument section of the opening brief are abandoned.”).

- 3 -

PER CURIAM:

Earl D. Osborne, Jr., appeals the district court’s order

denying relief on his complaint alleging violations of federal and

state law arising out of the termination of his employment as Home

Incarceration Supervisor. Osborne sued the Judges of the

Thirteenth Judicial Circuit (“Judges”) in Kanawha County, West

Virginia, the County Commission of Kanawha County, West Virginia

(“Commission”), and Dave Tucker (“Tucker”), the Sheriff of Kanawha

County, West Virginia. We have reviewed the parties’ briefs and

the record and find no reversible error in the district court’s

dismissal of the Commission and Tucker. We therefore affirm those

portions of the district court’s order for the reasons stated by

the court. Osborne v. County Comm’n of Kanawha County, W. Va., No.

CA-02-1250-2 (S.D. W. Va. Sept. 29, 2003).

With regard to the district court’s dismissal of the

Judges based upon Eleventh Amendment immunity, Osborne asserts that

the district court erred in concluding that he sued them only in

their official capacities.* We agree and find that Osborne’s

intent to sue the Judges in their individual capacities can be

fairly ascertained. See Biggs v. Meadows, 66 F.3d 56, 60-61 (4th
- 4 -

Cir. 1995). The plaintiff in his brief, p.3, insists that the

defendant judges are sued in their individual capacities. The

Eleventh Amendment does not bar suits seeking damages from

government officials in their individual capacities. See S.C.

State Ports Auth. v. Fed. Mar. Comm’n, 243 F.3d 165, 170 (4th Cir.

2001), aff’d, 535 U.S. 743 (2002). We therefore vacate that

portion of the district court’s order and remand for further

proceedings.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

 AFFIRMED IN PART,

 VACATED IN PART,

 AND REMANDED