United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 11-2561

___________

Crystal Henley, *

*

Plaintiff - Appellant, *

*

v. *

*

Sgt. Bill Brown, In his Individual *

and Official Capacity; Kansas City *

Missouri Board of Police *

Commissioners; Patrick McInerney, *

Acting Member of the Kansas City, *

Missouri Board of Police *

Commissioners; Alvin Brooks, Acting *

Member of the Kansas City, Missouri *

Board of Police Commissioners; *

Lisa Pelofsky, Acting Member of the * Appeal from the United States

Kansas City Missouri Board of Police * District Court for the Western

Commissioners; Angela Wasson-Hunt, * District of Missouri.

Acting Member of the Kansas City, *

Missouri Board of Police *

Commissioners; Mark Funkhouser, *

Mayor, Acting Member of the Kansas *

City, Missouri Board of Police *

Commissioners; Officer Michael *

Throckmorton, In his Individual & *

Official Capacity; Officer Dwight *

Parker, In his Individual & Official *

Capacity; Officer John Connor, An *

Alias Name For an Instructor at the *

Police Academy (In his Individual & *

Official Capacity); Officer John Doe, *
In his Individual & Official Capacity; *

Chief James Corwin, In his Official *

Capacity, *

*

Defendants - Appellees. *

___________

Submitted: February 15, 2012

Filed: July 26, 2012

___________

Before LOKEN, BYE, and MELLOY, Circuit Judges.

___________

BYE, Circuit Judge.

Crystal Henley brought this action under 42 U.S.C. § 1983 against the Kansas

City Board of Police Commissioners and its members, Chief of Police Jim Corwin,

and certain individual police officers, alleging constitutional violations under the

Fourth and Fourteenth Amendments of the Constitution. The district court dismissed

the action for failure to exhaust administrative remedies, reasoning Title VII of the

Civil Rights Act of 1964 provides the exclusive remedy for Henley's claims and she

could not circumvent the Act's procedural requirements by solely pleading

constitutional violations under section 1983. We reverse and remand for further

proceedings.
I. BACKGROUND

A. Facts.

1

InMay 2005,Henley enrolled in the Kansas City Police Academy ("Academy")

and began her training for becoming a police officer. The Academy is located in

Jackson County, Missouri, and isstaffed and operated by members of the Kansas City

Police Department. Both the trainees and the trainers at the Academy are primarily

male. Henley alleges during her time at the Academy four male trainers in

particular—Michael Throckmorton, Bill Brown, Dwight Parker, and an officer,

allegedly "John Conner"—discriminated against, sexually harassed, and physically

assaulted her because of her gender while acting under color of state law. Henley's

complaint provides the following examples in support of these allegations.

In late May or early June 2005, shortly after Henley enrolled at the Academy,

Officer MichaelThrockmorton asked Henley to conduct a "tacticalrecovery" exercise

for thirty-five to forty minutes in a specific manner. None of the male trainees were

asked to conduct the exercise in the same manner. Henley sustained a torn quad

muscle as a result, suffered leg convulsions, and developed a large knot in her leg.

In July 2005, Throckmorton asked Henley to repeatedly jump over a crack in

the gym mat during another training exercise. The commands lasted for the entire

class session. As Henley performed the jumps, Throckmorton stared at her from a

very close distance, concentrating on her breasts. At the end of the exercise,

"[W]e recite the facts as alleged in the complaint, viewing them in the light

1

most favorable to the plaintiff[.]" Davenport v. Farmers Ins. Grp., 378 F.3d 839, 841

(8th Cir. 2004). We take all factual allegations as true and construe all reasonable

inferences in the plaintiff's favor. Strand v. Diversified Collection Serv., Inc., 380

F.3d 316, 317 (8th Cir. 2004).

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Throckmorton wrote Henley up for not jumping high enough, even though her male

classmates told her afterwards they could not have jumped as high as she did. 

The complaint further alleges Throckmorton disciplined Henley differently

because of her sex by kicking her in the back for allegedly having bad posture during

the performance of a push-ups exercise and by pulling her by the hair to a sit-up

position during the performance of a sit-ups exercise for allegedly not having her

hands "clasped tight around her head." Complaint ¶ 18. Throckmorton also

"screamed" at Henley on multiple occasions for allegedly failing to perform certain

exercises; for being a "lazy quitter," even though thirty male trainees had quit before

she did; and for being a "chicken" for staying home after Sergeant Bill Brown

demanded she go home because of her "raspy voice." Id. at ¶¶ 15, 17, 19.

In September 2005, Throckmorton asked Henley to close her eyes during a

training session. "While her eyes were closed, Throckmorton administered a brachial

hit that dislocated her shoulder[.]" Id. at ¶ 19. When she did not show any pain,

Throckmorton threatened to hit her again. Henley had to seek medical assistance for

the injury she sustained as a result of the hit.

A month later, as an alleged part of training, Throckmorton used pepper spray

on Henley's face. He used a new can of spray to allow for a high stream of carbon

monoxide. The high stream opened Henley's right eye, causing damage to it. Henley

again had to seek medical assistance for the injury.

Following the pepper spray incident, Henley left for the women's locker room

to take a shower. As she was coming out of the shower, along with another female

trainee, Brown entered the room and saw both of them fully undressed. Brown

proceeded to leave the door to the locker room open as to allow other male officers

to see the women.

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In addition to the locker room incident, Henley alleges Brown came to the

shooting range during a training exercise with one purpose in mind: to "rant, rave,

and intimidate" her. Id. at ¶ 14. "The ranting was so bad" Sergeant Conroy had to

step out of his office and summon Brown inside. Id. Brown's harassment also

consisted of telling Henley's training partners to work against her during the

performance of certain exercises, screaming she "had a loaded weapon and had gone

crazy" before an incoming class, and writing her up for staying home sick, although

it was him who had sent her home in the first instance for having "a raspy voice." Id.

at ¶¶ 15, 20, 21.

In October 2005, Henley participated in a training exercise designed to teach

trainees how to apply a choke hold to restrain an attacker. Henley was chosen to be

the attackee in a simulated attack, which involved another male officer at the

Academy. She applied the hold as directed. After she released the hold, however, the

male officer, allegedly "John Conner," attacked Henley from behind and physically

assaulted her. It took four other officers to break the attack. Henley contends she

attempted to report the incident, "but command staff did not listen." Id. at ¶ 24.

As to Officer Dwight Parker, Henley asserts that in June 2005 Parker talked to

her and another female trainee about the size of their breasts. Parker allegedly told

Henley it would be difficult to take her seriously as a police officer because "her

button down shirt would pucker" and reveal her bra. Id. at ¶ 11. Parker further stated

he would work hard to assure Henley does not graduate from the Academy and "had

taken a bet to see how fast 'they' could get rid of her." Id. at 12. According to

Henley, Parker suggested she is better suited to be "some rich Johnson [C]ounty

man's wife" than a police officer. Id.

On November 8, 2005, Parker and Brown provided Henley with a

memorandum, explaining their reasons as to why Henley should not graduate from

the Academy. Henley wassubsequently forced to leave the Academy and was unable

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to complete her training to become a police officer with the Kansas City Police

Department.

B. Procedural Posture

On October 15, 2010, Henley brought this action under 42 U.S.C. § 1983

alleging violations of her rights under the Fourth and Fourteenth Amendments of the

Constitution. Specifically, in her second amended complaint Henley asserted the

following constitutional violations: (1) gender discrimination against Conner and

Throckmorton, in violation of the Fourteenth Amendment; (2) sexual harassment and

violation of bodily integrity against Brown, in violation of the Fourth and Fourteenth

Amendments; (3) sexual harassment hostile work environment against Parker, in

violation of the Fourteenth Amendment; and (4) "failure to instruct, supervise,

control, and discipline" against the Kansas City Board of Police Commissioners, its

individual members, and Chief of Police Jim Corwin. Defendants moved to dismiss

for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. The district court granted the motion, concluding Henley had failed to 2 3

exhaust her administrative remedies, as required by Title VII, and was therefore

precluded from suing in federal court. The district court explained that while Henley

could theoretically bring her gender discrimination claims under the Equal Protection

Clause of the Fourteenth Amendment, the claims were also prohibited by Title VII

and she could not "circumvent Title VII requirements by only pleading violations of

the Equal Protection Clause under § 1983." Order Granting Mot. to Dismiss, 

On February 1, 2011, Henley filed a second amended complaint. Defendants

2

Brown, Throckmorton, and Parker, along with the Board of Police Commissioners

and its members (collectively, "Defendants"), moved to dismiss on February 22,

2011. Defendant Corwin filed his motion to dismiss on May 25, 2011. 

The district court granted Defendants' motion to dismiss on April 29, 2011.

3

The court granted Police Chief Corwin's separate motion to dismiss on July 6, 2011.

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April 29, 2011, at 9. Accordingly, the court dismissed the action for failure to state

a claim upon which relief may be granted.

Henley subsequently filed a motion to amend or alter the judgment under

Federal Rule of Civil Procedure 59(e), arguing the district court manifestly erred in

its application of the law by concluding the procedural requirements of Title VII

applied to her constitutionally-grounded claims brought under section 1983. The

district court denied the motion on the ground Title VII provides the exclusive

remedy for Henley's gender discrimination claims and the law in our circuit indicates

"a plaintiff bringing a 42 U.S.C. § 1983 claim alleging employment discrimination

must first proceed through Title VII's requisite administrative remedies before filing

suit in federal court when Title VII provides for the right asserted." Order Denying

Mot. to Alter J., June 30, 2011, at 2. Henley timely appealed.

4

II. DISCUSSION

On appeal, Henley argues the district court erred in concluding Title VII

provides the exclusive remedy for gender discrimination and dismissing her

constitutionally-grounded claims brought under section 1983 for failure to comply

with Title VII's procedural requirements.

A. Standard of Review

An "appeal from the denial of a Rule 59(e) motion allows challenge of the

underlying ruling that produced the judgment—in this case [dismissal for failure to

Henley appeals only the district court's June 30, 2011, order denying her

4

motion to amend or alter the judgment dismissing Henley's claims against the

Defendants. See Notice of Appeal, Appellant's App'x at 189. Henley does not appeal

the district court's July 6, 2011, order granting Police Chief Corwin's motion to

dismiss.

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state a claim under Rule 12(b)(6).]" Prince v. Kids Ark Learning Ctr., 622 F.3d 992,

994 (8th Cir. 2010) (per curiam). "We review de novo the district court's dismissal

of an action for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6)." O'Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009). Moreover,

where the Rule 59(e) motion seeks review of a purely legal question, "[l]ittle turns . . .

on whether we label the review of this particular question abuse of discretion or de

novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond

appellate correction." Koon v. United States, 518 U.S. 81, 100 (1996). Accordingly,

while we generally review the denial of a Rule 59(e) motion for abuse of discretion,

Miller v. Baker Implement, Co., 439 F.3d 407, 414 (8th Cir. 2006), we will review

de novo the dismissal of Henley's section 1983 action for failure to comply with Title

VII's proceduralrequirements. See, e.g., Computrol, Inc. v. Newtrend, L.P., 203 F.3d

1064, 1070-71 (8th Cir. 2010) (applying a de novo review to a contract question in

an appeal from the denial of a Rule 59(e) motion); Anderson v. Family Dollar Stores

of Ark., Inc., 579 F.3d 858, 861-62 (8th Cir. 2009) (reviewing underlying summary

judgment de novo).

B. The Relationship Between Title VII and Section 1983

Characterizing Henley's employment discrimination claims as gender

discrimination claims for which Title VII provides the exclusive remedy, the district

court concluded Henley was required to comply with the Act's procedural

requirements before seeking judicial review and could not escape Title VII'sremedial

scheme by only pleading constitutional violations under section 1983. As a

preliminary matter, we must therefore determine whether Title VII provides the

exclusive remedy for Henley's discrimination claims precluding her from asserting

the claims under section 1983.

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Section 1983 provides, in relevant part:

Every person who, under color [of law] . . . subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . . .

42 U.S.C. § 1983. Standing alone, section 1983 does not establish any

substantive rights. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617

(1979). Rather, itsimply serves as a vehicle for "vindicating federal rights elsewhere

conferred by those parts of the United States Constitution and federal statutes that it

describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Accordingly, an

underlying constitutional orstatutory violation is a predicate to liability under section

1983.

However, not all statutory violations may be remedied through section 1983. 

The Supreme Court has recognized two exceptions to the availability ofsection 1983

as a remedy for vindicating statutory rights. Middlesex Cnty. Sewerage Auth. v. Nat'l

Sea Clammers Ass'n, 453 U.S. 1, 19 (1981). First, the Court has explained section

1983 does not afford a remedy for statutory violations unless the statute creates

"rights, privileges, or immunities" within the meaning of section 1983. Id. Second,

the Court has stated that "[w]hen the remedial devices provided in a particular

[statute] are sufficiently comprehensive, they may suffice to demonstrate

congressional intent to preclude the remedy of suits under § 1983." Id. at 20. In

other words, section 1983 does not afford a remedy for statutory violations where "the

governing statute provides an exclusive remedy for violation of its terms." Pennhurst

State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981) (internal quotation marks

and citation omitted). And while the Supreme Court has yet to decide whether Title

VII provides the exclusive remedy for discriminatory employment practices, thereby

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precluding claims under section 1983, the Court's jurisprudence on the relationship

between Title VII and other statutory remedies is instructive to our present inquiry.

In a line of cases, beginning with Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974), the Court has recognized generally that Title VII does not preclude a

public employee from seeking other remedies. In Alexander, for example, the Court

concluded a private employee does not forfeit his private cause of action under Title

VII if he first purses his grievance under a collective-bargaining agreement's nondiscrimination clause. 451 U.S. at 49. The Court reasoned: "[T]he legislative history

of Title VII manifests a congressional intent to allow an individual to pursue

independently his rights under both applicable state and federalstatutes[,] [including

section 1981 and 1983]. The clear inference is that Title VII was designed to

supplement rather than supplant, existing laws and institutions relating to

employment discrimination." Id. at 47-49 & n.7. Similarly, in Johnson v. Railway

Express Agency, 421 U.S. 454 (1975), the Court observed that "[d]espite Title VII's

range and its design as a comprehensive solution for the problem of invidious

discrimination in employment, the aggrieved individual clearly is not deprived of

other remedies he possesses and is not limited to Title VII in his search for relief." 

421 U.S. at 459. Rather, the Court stated, "the remedies available to the individual

under Title VII are co-extensive with the individual's right to sue under . . . s 1981,

and . . . the two procedures augment each other and are not mutually exclusive." Id.

(internal quotation marks and citation omitted).

Further, in Brown v. General Services Administration, 425 U.S. 820 (1976),

the Court considered the narrow question of "whether s 717 of the Civil Rights Act

of 1964 providesthe exclusive judicial remedy for claims of discrimination in federal

employment." Id. at 821. Relying on the legislative history of section 717, the

section which added federal employees to Title VII's coverage, the Court concluded

Congress intended to create "an exclusive, pre-emptive administrative and judicial

scheme for the redress of federal employment discrimination." Id. at 829. The Court

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noted federal employees could, of course, seek review of their employment

discrimination claims in federal district court, but they were required to comply with

the procedural requirements set forth in section 717 before bringing suit. Id. at 832.

Similarly, when presented with the narrow issue of whether section 704(a) of

Title VII provides the exclusive remedy for retaliatory discharge claims in violation

of section 704(a), the Court has held Title VII precludes an employee from seeking

redress elsewhere. Great Am. Fed. Savs. & Loan Ass'n v. Novotny, 442 U.S 366, 378

(1979). The specific issue before the Court in Novotny was "whether a person

injured by a conspiracy to violate § 704(a) of Title VII" may seek redress for his

injury through the remedial framework of section 1985(3). Id. at 372. The Court's

inquiry focused largely on the fact section 1985(3) is a "purely remedial statute,

providing a civil cause of action when some otherwise defined federal right—to equal

protection ofthe laws or equal privileges and immunities under the laws—is breached

by a conspiracy." Id. at 376. But in the Court's opinion the right asserted under

section 704(a) of the Act was not an "otherwise defined federal right" because it "did

not even arguably exist before the passage of Title VII." Id. at 376-77. The Court

thus concluded the right asserted under section 704(a) was not an "independent" right

for purposes of bringing a section 1985(3) action, and held the "deprivation of a right

created by Title VII cannot be the basis for a cause of action under § 1985(3)." Id.

at 378.

We discern the following principles from the Court's attempt to reconcile the

remedies provided for in Title VII with other statutorily available remedies. First,

Title VII provides the exclusive remedy for violations of its own terms and an

employment discrimination plaintiff asserting the deprivation of rights created by

Title VII must comply with the Act's procedural requirements before seeking judicial

review. Second, a plaintiff may not invoke a purely remedial statute, such as section

1985(3), to redress a violation of a right conferred only by Title VII. However, when

the employer's conduct violates not only rights created by Title VII, but also rights

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conferred by an independent source, Title VII supplements, rather than supplants,

existing remedies for employment discrimination.

The law in our circuit is consistent with these principles. The case that best

illustrates this consistency is Foster v. Wyrick, 823 F.2d 218 (8th Cir. 1987). In

Foster, a black inmate brought a section 1983 action alleging race discrimination in

the assignment of inmate jobs under a disparate impact theory. Acknowledging both

the Equal Protection Clause of the Fourteenth Amendment and Title VII confer an

individual a right to be free of racial discrimination in employment, we considered

whether any of these two independent grounds for relief supported appellant's

disparate impact claim. Id. at 220. We rejected appellant's constitutional claim,

explaining an act does not violate the Equal Protection Clause simply because it has

a racially disproportionate impact. Id. at 220-21. Instead, to amount to a

constitutional violation, the act must be committed with a "discriminatory racial

purpose." Id. at 221. In the absence of any allegations of intentional discrimination,

we therefore concluded the Equal Protection Clause did not provide a ground for

relief for appellant's section 1983 race discrimination claim. Id.

Recognizing, however, "Title VII permits a claim for employment

discrimination to be based on disparate impact alone," we next considered whether

appellant could assert his Title VII disparate impact claim within the remedial

framework ofsection 1983. Id. Guided by the Supreme Court's decision in Novotny,

we held "[d]isparate impact claims, like retaliatory discharge claims . . . , were created

by Title VII" and could not therefore be the basis for a cause of action under section

1983. Id. at 221-22. We further held that because Title VII provides the exclusive

remedy for violations of its own terms, appellant was required to exhaust his

administrative remedies before seeking judicial review of his disparate impact claim

and could not "circumvent Title VII's filing requirements by utilizing § 1983 as the

vehicle for asserting his Title VII claim." Id. at 221-22 (emphasis added). Thus,

while our holding in Foster precludes a plaintiff from asserting violations of rights

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created by Title VII as the basis for a section 1983 action, it does not—by any

means—preclude a plaintiff from utilizing section 1983 as a vehicle for vindicating

rights independently conferred by the Constitution. On the contrary, the implication

of Foster isthat had appellant alleged the employer's conduct amounted to intentional

race discrimination in violation of the Equal Protection Clause, he could have

asserted his constitutionally-grounded discrimination claim under section 1983.

We therefore conclude that while Title VII provides the exclusive remedy for

employment discrimination claims created by its own terms, its exclusivity ceases

when the employer's conduct also amounts to a violation of a right secured by the

Constitution. See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir.

2011) (explaining that "[a]lthough section 704(a) of Title VII may not be the basis for

a retaliatory discharge claim in a § 1983 action, § 1983 provides a vehicle for

redressing claims of retaliation on the basis of the First Amendment") (internal

quotation marks and citation omitted); Hervey v. City of Little Rock, 787 F.2d 1223,

1233 (8th Cir. 1986) (stating an employment discrimination plaintiff may recover

under section 1983 if she provesthe alleged gender discrimination violated her equal

protection rights under the Fourteenth Amendment). All other circuits to have

considered the issue have reached the same conclusion. See, e.g., Back v. Hastings

on Hudson Union Free Sch. Dist., 365 F.3d 107, 117-18 (2d Cir. 2004); Booth v.

Maryland, 327 F.3d 377, 382-83 (4thCir. 2003); Thigpen v. BibbCnty.,Ga., Sheriff's

Dep't, 223 F.3d 1231, 1239 (11th Cir. 2000); Weberg v. Franks, 229 F.3d 514, 522

(6th Cir. 2000); Notari v. Denver Water Dep't, 971 F.2d 585, 587 (10th Cir. 1992);

Johnston v. Harris Cnty. Flood Control Dist., 869 F.2d 1565, 1575-76 (5thCir. 1989);

Ratliff v. City of Milwaukee, 795 F.2d 612, 624 (7th Cir. 1986). Moreover, because

the availability of section 1983 as a remedy for employment discrimination turns on

the independence of the right's source, rather than on the distinct factual basis of the

Title VII and section 1983 claims, we further conclude an employment discrimination

plaintiff asserting a violation of a constitutional right may bring suit under section

1983 alone, without having to plead concurrently a violation of Title VII and comply

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with the Act's procedural requirements. See Back, 365 F.3d at 117 (holding a

plaintiff alleging a constitutional claim of gender discrimination "may bring suit

under § 1983 alone, and is not required to plead concurrently a violation of Title VII);

Notari, 971 F.2d at 587 (holding "a Title VII plaintiff who alleges that his equal

protection rights were violated, and requests remedies for those alleged violations

under § 1983 has stated an independent basis for [his § 1983] claim . . . even if the

claims arise from the same factual allegations and even if the conduct alleged in the

§ 1983 claimalso violates Title VII") (internal quotation marks and citation omitted);

Johnston, 869 F.2d at 1575-76 (recognizing Title VII does not provide the exclusive

remedy for all employment discrimination claims, even if the Title VII and section

1983 claimfactually overlap); Ratliff, 795 F.2d at 624 (emphasizing "[a] plaintiffmay

sue her state government employer for violations of the Fourteenth Amendment

through section 1983 and escape Title VII's comprehensive remedial scheme, even

if the same facts would suggest a violation of Title VII") (internal quotation marks

and citation omitted).

C. Disposition

Although "somewhat conclusory and far from artful," Jennings v. Am. Postal

Workers Union, 672 F.2d 712, 716 (8th Cir. 1982), we construe Henley's complaint

as alleging a violation of her right to be free from the use of excessive force under the

Fourth Amendment inasmuch as she is asserting that certain individual defendants

used "unlawful and unreasonable" force against her while acting under color of state

law. See Moore v. Indehar, 514 F.3d 756, 759 (8th Cir. 2008) ("The right to be free

from excessive force is a clearly established right under the Fourth Amendment's

prohibition against unreasonable seizures of the person . . . [and] [a] section 1983

action is supported when a [state actor] violates this constitutional right.") (internal

quotation marks and citation omitted). We further construe the complaint as alleging

a violation of Henley's right to be free from gender-based discrimination inasmuch

as she is asserting defendants, asstate actors, intentionally discriminated against and

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sexually harassed her because of her gender. See Ottman v. City of Independence,

Mo., 341 F.3d 751, 756 (8th Cir. 2003) (holding "intentional gender discrimination

in public employment by persons acting under color of state law violates the Equal

Protection Clause of the Fourteenth Amendment and is actionable under section

1983"); Moring v. Ark. Dep't ofCorr., 243 F.3d 452, 455 (8thCir. 2001) ("Intentional

sexual harassment by persons acting under color of state law violates the Fourteenth

Amendment and is actionable under § 1983."). To the extent that Henley's complaint

asserts the violation of rights secured by the Constitution and committed by persons

acting under color of state law, we conclude the district court erred in dismissing her

section 1983 action for failure to comply with Title VII's procedural requirements. 

See, e.g., Notari, 971 F.2d at 588 (holding plaintiff's allegations defendant acted

under color of state law to violate rights secured by the Fourteenth Amendment are

sufficient to defeatsummary judgment of plaintiff's section 1983 claim); cf. Jennings,

672 F.2d at 716 (concluding allegations employer failed to process plaintiff's

grievance because of her race sufficient to withstand dismissal of plaintiff's section

1981 action).

We decline to address whether the factual allegations in Henley's complaint are

sufficient to establish a section 1983 claim that is plausible on its face. The district

court did not reach the merits of the claims below and neither party has briefed the

issue on appeal. Prudence thus compels us to remand the action to the district court

for consideration of the issue in the first instance. See, e.g., Red River Freethinkers

v. City of Fargo, 679 F.3d 1015, 1028 (8th Cir. 2012) (declining to reach the merits

of the claims where the district court did not rule on the merits and neither party

addressed the merits in its brief); Dodd v. United States, 614 F.3d 512, 518 (8th Cir.

2010) (remanding to the district court to address the merits of the claims where 

neither party briefed the merits to the court and the district court did not address the

merits in the first instance); Alliant Techsystems, Inc. v. Marks, 465 F.3d 864, 873

(8th Cir. 2006) ("Because the district court did not decide the merits of these claims,

which are heavily fact-based, we decline to consider them in the first instance.").

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III. CONCLUSION

The judgment dismissing the action is reversed, and the case remanded for

further proceedings consistent with this opinion.

______________________________

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