## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1934

___________ Gary Bird, Deceased, by and through * his next friend Greg Bird, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Jefferson County Sheriff's Department; * Sheriff Oliver Glen Boyer, Individually, * [UNPUBLISHED] * Defendants, * * Deputy Drew Crews, DSN: 15, * Individually; Deputy Tim Groat, * DSN: 132, Individually, * * Appellees, * * Lieutenant Terry Thomas, DSN: 772, * Individually; Deputy Jeff Sengheiser, * DSN: 168, Individually, * * Defendants. *

___________ Submitted: January 22, 2010 Filed: January 28, 2010

___________ Before MELLOY, BOWMAN, and SMITH, Circuit Judges.

___________ PER CURIAM.-2- Greg Bird (Bird), on behalf of decedent Gary Bird, appeals the District Court's adverse grant of summary judgment in th is civil rights action under 42 U.S.C. § 1983. For reversal, he argues thatthe District Court erred in concluding that the two remaining defendants, Drew Crews and Tim Gr oat, were not sued in their individual capacities and that the court improperly gr anted summary judgment "sua sponte" on Count III of the complaint.
We first address the District Court's summary judgment ruling on Count III of the complaint. Because Count III was sp ecifically addressed in the motion for summary judgment filed by Crews and Groat, the court's ruling on Count III was not sua sponte. Furthermore, we agree with th e District Court's conclusion that Count III could not be construed as a claim against either Crews or Groat and that the only defendants who could have been subject to this claim were among those whom Bird voluntarily dismissed with prejudice. We therefore affirm on this issue.
We disagree, however, with the Distri ct Court's narrow construction of the complaint with respect to the capacities in which Crews and Groat were sued in Counts I and II. Because the complaint expr essly stated that Bird was suing Crews and Groat "Individually" and because Bird's opposition to Crews and Groat's summary judgment motion left no doubt that Bird intended to sue Crews and Groat in their individual capacities, it was error for the court to conclude that Bird sued Crews and Groat in their official capacities only. See Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 514 (2002) (observing that liberal notice pleading is part of a system adopted to "focus litigation on the merits of a claim"); Jackson v. Crews , 873 F.2d 1105, 1107 (8th Cir. 1989) (suggesting that § 1983 litigan ts "clearly indicate both the parties being sued and their capac ity in the caption"); cf. Johnson v. Outboard Marine Corp. , 172 F.3d 531, 535 (8th Cir. 1999) ("Becau se section 1983 liability exposes public servants to civil liability and damages, we have held that only an express statement that they are being sued in their indivi dual capacity will suffice to give proper notice to the defendants."); Rollins v. Farmer , 731 F.2d 533, 535 (8th Cir. 1984) (reversing in part and remanding where the districtcourt granted defendant police officer's-3- motion for directed verdict on the ground that the plaintiff had sued defendant in his official capacity only and had failed to pr ove a custom or policy of the city that violated plaintiff's rights and reasoning that "[a]lthough the complaint and the arguments of plaintiff's counsel at trial were not as clear as they should have been . . . , there is little doubt that the pretrial conference defined the suit as one against [the defendant] in his individual as well as his official capacity").
Given the present state of the summary judgment record, we note that a genuine issue exists as to whether Crews and Gr oat acted objectively reasonably under all the relevant circumstances. See Hassan v. City of Minneapolis, Minn. , 489 F.3d 914, 919 (8th Cir. 2007) (noting that in an exce ssive-force claim under § 1983, the question is whether the officers' actions were objectiv ely reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation).
Accordingly, we affirm the District C ourt's disposition of Count III, reverse the court’s determination that Crews and Gr oat were not sued in their individual capacities in Counts I and II, remand the case for further proceedings on the claims in Counts I and II against Cr ews and Groat in their indi vidual capacities, and affirm the judgment of the District Court in all other respects.

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