Mark Levey, by the personal representative of his estate, and Alma and Frank Levey [hereinafter collectively “Leveys”] appeal from a district court judgment dismissing their claims against the State Developmental Center in Grafton. The judgment of dismissal was entered in response to a supervisory writ issued by this court January 19, 1995.
The Leveys first challenge our decision in Bulman v. Hulstrand Construction Co., Inc., 521 N.W.2d 632 (N.D.1994), in which a majority of this court abolished the State’s sovereign immunity from tort liability, except as to discretionary acts. We applied the decision prospectively, except as to the parties in Bulman and two other cases decided the same day. Id. at 640. The Leveys contend that the partial prospectivity of Bulman violates Art. I §§ 9,21, and 22, and Art. IV § 44 of the North Dakota Constitution. We recently rejected these arguments in Burr v. Kulas, 532 N.W.2d 388 (N.D.1995).
The Leveys argue that even if the Developmental Center may claim the protection of sovereign immunity, the State waived immunity by purchasing insurance coverage for the Department of Human Services. We also rejected that argument in Burr, 532 N.W.2d at 392.
The Leveys also contend that the State Developmental Center waived the benefit of sovereign immunity under NDCC § 32-12.1-15(2). However, subsection 2 of section 32-12.1-15 expressly applies only to an “employee of the state ... in the employee’s personal capacity.” That employee cannot be held liable unless the employee’s acts “constitute reckless or grossly negligent conduct, malfeasance, or willful or wanton misconduct.” Id. In their complaint, the Le-veys did not name any employees in any capacity, much less in their “personal capacity,” i.e., individually. Cf. Burr, 532 N.W.2d at 393. Therefore, the trial court did not err in determining that the State Developmental Center did not waive its sovereign immunity under § 32-12.1-15(2).
Finally, the Leveys assert they are entitled to relief under 42 U.S.C. § 1983, for civil rights violations by persons acting under color of state law. But, a section 1983 action may not he against the State because a state is not a “person” within the meaning of section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). See also Livingood v. Meece, 477 N.W.2d 183, 190 (N.D.1991).
We, therefore, affirm the judgment of dismissal.
VANDE WALLE, C.J., and NEUMANN, SANDSTROM and MESCHKE, JJ., concur.