United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1864

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Stanley Smith, as Executor for the *

Estate of Jenny Smith, Deceased, *

*

Appellant, * Appeal from the United States

* District Court for the Western

v. * District of Arkansas.

*

Mike Beebe, Arkansas State Attorney * [UNPUBLISHED]

General; State of Arkansas, *

*

Appellees. *

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Submitted: February 14, 2005

Filed: February 22, 2005

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Before MELLOY, HEANEY, and FAGG, Circuit Judges.

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PER CURIAM.

Jenny Smith lived in an Arkansas nursing home. In September 1993, she was

not properly secured in her bed and fell, causing head trauma and other injuries that

led to her incapacity for several months. Jenny died in December 1994. A year later,

Stanley Smith, executor of Jenny’s estate, brought a medical malpractice lawsuit

against the nursing home. An Arkansas state court held the lawsuit was barred by the

two-year medical injury statute of limitations. Ark. Code Ann. § 16-114-203(a)

(Michie 1993). The court also held the one-year tolling provision for persons “who

had been adjudicated incompetent at the time of the act, omission, or failure
*

The Honorable Robert T. Dawson, United States District Judge for the

Western District of Arkansas.

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complained of” did not apply. Ark. Code Ann. § 16-114-203(e) (Michie 1993)

(repealed). Smith then brought this civil rights action under 42 U.S.C. § 1983 against

the State of Arkansas and the Arkansas attorney general asserting the now-repealed

tolling provision was unconstitutional. The district court*

 dismissed the action as

barred by sovereign immunity. 

Sovereign immunity deprives federal courts of jurisdiction over lawsuits

brought by private citizens against states unless the state has waived its immunity or

Congress has abrogated the state’s immunity under a valid exercise of Congressional

power. Here, the States of Arkansas has not consented to be sued in the federal

courts, Burk v. Beene, 948 F.2d 489, 492-93 (8th Cir. 1991), and Congress did not

abrogate the states’ sovereign immunity when it enacted 42 U.S.C. § 1983, id.; Will

v. Michigan Dept. of State Police, 491 U.S. 58, 66-67 (1989). Thus, sovereign

immunity bars Smith’s § 1983 claim against the State. Smith’s claim against the state

attorney general is also barred, see id., and his claim for money damages was barred

and properly dismissed, see Burk, 948 F.2d at 492-93. 

Smith appeals asserting the exceptions to sovereign immunity should be

broadened to encompass his situation. We lack authority to do so. Although

Congress may abrogate the states’ sovereign immunity, we are bound by the Supreme

Court’s holding in Will that Congress did not do so when it enacted § 1983. Further,

the limited exemption to sovereign immunity in Ex parte Young, 209 U.S. 123

(1908), does not apply here because the state attorney general has no special relation

to the tolling provision challenged by Smith. See Children’s Healthcare is a Legal

Duty, Inc. v. Deters, 92 F.3d 1412, 1415-16 (6th Cir. 1996); Sherman v. Community

Consolidated Sch. Dist., 980 F.2d 437, 440-41 (7th Cir. 1992); Long v. Van de Kamp,
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961 F.2d 151, 152 (9th Cir. 1992) (per curiam); Rode v. Dellarciprete, 845 F.2d 1195,

1208 (3d Cir. 1988). 

Because Smith’s claims against the State and its attorney general are barred by

sovereign immunity, we affirm the district court’s dismissal of Smith’s lawsuit.

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