Turner v. Houma Municipal Fire & Police Civil Service Board

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 99-31168
____________________

DANIEL TURNER

Plaintiff - Appellee

v.

HOUMA MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD; PAT
MCKEY; TIMOTHY WALLACE; JOHNNY LOPEZ; JOE ROY; DAVID
FALGOUST; CRAIG LANDRY

Defendants - Appellants

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
October 18, 2000
Before KING, Chief Judge, and CUDAHY* and WIENER, Circuit Judges.

KING, Chief Judge:

Defendants-Appellants, the Houma Municipal Fire and Police

Civil Service Board, and board members Pat McKey, Timothy

Wallace, Johnny Lopez, Joe Roy, David Falgoust, and Craig Landry,

appeal from the district court’s denial of Defendants-Appellants’

summary judgment motion. They argue that the district court’s

holding that they were not entitled to absolute quasi-judicial

immunity in their “official capacities” was erroneous. We find

*
Circuit Judge of the Seventh Circuit, sitting by
designation.
no fault with the district court’s denial of absolute quasi-

judicial immunity for the Board and its members sued in their

official capacities under 42 U.S.C. § 1983 and, therefore, affirm

the judgment of the district court.

I. FACTUAL BACKGROUND

The City of Houma Municipal Fire and Police Civil Service

Board (“Houma Board”) sits in the Parish of Terrebonne,

Louisiana. Created pursuant to Louisiana statute, LA. REV. STAT.

ANN. §§ 33:2471-33:2506, the Houma Board serves as the

organization responsible for representing “the public interest in

matters of personnel administration in the fire and police

services of the [local] municipal entity.” LA. REV. STAT. ANN.

§ 33:2477(1) (West 2000). The Houma Board advises the mayor, the

commissioner of public safety, and the chiefs of fire and police

in the municipality on the personnel administration of the fire

and police departments. See id. § 33:2477(2). Relevant to the

instant case, the Houma Board also is charged with conducting

investigations and adjudicating complaints regarding fire and

police employees. See id. § 33:2477(5);(6).

Daniel Turner, Plaintiff-Appellee, became a fireman with the

City of Houma Fire Department in 1968 and eventually rose through

the ranks to the position of provisional Fire Chief in 1997. The

conflict underlying this appeal arises as a result of

2
investigations and hearings initiated by the Houma Board into

Turner’s fitness as provisional Fire Chief. Turner, an African-

American, claims he would have been the first African-American

permanent Fire Chief in Houma, but for the Houma Board’s actions.

Believing the hearings to be racially motivated and

discriminatory, Turner sued the Houma Board and board members in

their individual and official capacities, under 42 U.S.C. § 1983,

claiming violations of his Fourteenth Amendment due process and

equal protection rights.

The central conflict between Turner and the board members

involved a disagreement over the qualifications necessary to be

employed as a Fire Training Officer for the City of Houma.1 In

July 1997, Turner, in his role of provisional Fire Chief,

requested that the Houma Board modify the qualification

requirements for the position of Fire Training Officer and delay

the test for the position scheduled to be given September 16,

1997. Turner’s proposal would have eliminated the requirement

that an individual serve two years as captain prior to applying

for the position of Fire Training Officer. The Houma Board

tabled Turner’s request until after the September 16 exam and

asked him to submit the request again in writing.

On September 11, 1997, the Terrebonne Parish Consolidated

Government filed a petition for a temporary restraining order

1
The Fire Training Officer is responsible for training
all firemen in the City of Houma.

3
(TRO) and injunction requesting that the administration of the

exam be enjoined. It argued to the court that the two-year

requirement gives the Fire Training Officer position the

appearance of a “promotional class” position rather than a

“competitive class” position and thereby presents an arbitrary

barrier to applicants. Turner was not a party to the petition.

The state court granted the TRO. At the trial regarding the

petition, however, allegations surfaced that Turner had misused

his authority as provisional Fire Chief in his efforts to change

the Fire Training Officer qualifications. The state court

concluded that Turner had acted illegally and in violation of the

Civil Service Rules in his actions with employees concerning the

dispute over the Fire Training Officer qualification

requirements.2 The state court then dissolved the TRO.

As a result of the allegations at trial, the Houma Board

began investigating Turner. The Board asked the Terrebonne

Parish Consolidated Government to investigate and submit a report

on his conduct. On November 12, 1997, Turner was placed briefly

on administrative leave, but no further disciplinary action was

taken.

2
The state court found that Turner had intimidated other
firemen and had misused his position of authority in an attempt
to change the requirements for the Fire Training Officer
position. The court found that these actions had a “chilling
effect” on the rights of civil service employees.

4
 Also in November, Oswald Stoufflet, a Captain in the Houma

Fire Department filed a complaint against Turner with the Houma

Board. The complaint alleged that Turner acted unprofessionally

toward Stoufflet.3 The Houma Board held a public hearing on

Turner’s conduct with Stoufflet on January 6, 1998. After the

hearing, the Board suspended Turner for 30 days. Turner appealed

the decision to state court.4 Turner also requested a certified

transcript of the hearing, a request that the Board never

honored. Turner alleges that the Board’s reluctance to provide

him with a transcript has prevented him from appealing the

adverse ruling of the hearing.

On February 6, 1998, the Houma Board initiated another

investigation into the allegations detailed in the state court

trial. A hearing was convened in July and August 1998, which

resulted in Turner’s suspension for 70 days. Turner alleges

numerous procedural errors in this hearing as a result of the

Board’s alleged racial and personal bias against him. Turner

also argues that the hearings and investigations were an attempt

3
In Stoufflet’s complaint to the Houma Board, he stated
that Turner acted “in a manner unbecoming to his position and to
me personally.”
4
The appeal to the state court alleged that (1) the
hearing was held in violation of Louisiana statutory law
governing notice of hearings in that the Houma Board had failed
to inform Turner of the date, time, and place of the hearing, LA.
REV. STAT. ANN. § 33:2501(B)(1); (2) the decision was contrary to
law and evidence as to the misconduct charge; (3) the board
members were biased against him; and (4) the Board did not fairly
evaluate the arguments.

5
to derail his appointment as the first African-American permanent

Fire Chief.

In January 1999, Turner brought a 42 U.S.C. § 1983

(“§ 1983”) suit against the Houma Board and board members Pat

McKey, Timothy Wallace, Johnny Lopez, Joe Roy, David Falgoust,

and Craig Landry in their official and individual capacities. He

alleged that the disciplinary hearings were racially

discriminatory and violated his Fourteenth Amendment due process

and equal protection rights. He also alleged that as a result of

the Board’s actions he was deprived of the rights, opportunities,

and privileges of employment and that he suffered intentionally

inflicted emotional distress. Turner sought compensatory and

punitive damages from the Houma Board and its members. In

addition, he sought a declaration that the manner in which the

defendants conducted the hearing violated his equal protection

and due process rights existing under the Fourteenth Amendment

and sought injunctive relief asking that the defendants

discontinue those practices.

II. PROCEDURAL BACKGROUND

In the district court, the defendants moved for summary

judgment and, in the alternative, dismissal for failure to state

6
a claim on which relief can be granted. The Board and its

members asserted absolute quasi-judicial immunity for their

adjudicative actions of investigating and disciplining Turner.

The defendants also requested a partial motion to dismiss, based

on Turner’s response to an interrogatory that he was only

pursuing official-capacity claims against the board members.

Turner’s district court complaint was thereby read to have

dropped any individual-capacity claims against the Houma Board

members.

The district court converted the motion to dismiss into a

motion for summary judgment,5 denying defendants’ immunity

argument as it related to the official-capacity immunity and

granting the unopposed motion to dismiss the individual-capacity

claims. Notwithstanding the district court’s dismissal of the

individual-capacity claims, the defendants appealed both the

portion of the lower court’s decision that they had prevailed

upon below and the denial of official-capacity immunity.6

Because there is no appealable issue on their individual-capacity

claims, we will not address it. The single issue before this

5
The district court found that because matters outside of
the pleadings had been presented to and not excluded by the
court, this was sufficient to notify the parties that the court
might treat this motion as one for summary judgment under FED. R.
CIV. P. 12(b)(6). See Estate of Smith v. Tarrant County Hosp.
Dist., 691 F.2d 207, 208 (5th Cir. 1982).
6
Turner’s appellate brief also is replete with references
to arguments about individual-capacity immunity claims,
notwithstanding that the issue is not before us on appeal.

7
court is whether the district court erred in not granting

absolute quasi-judicial immunity to the Houma Board and its

members in their official capacities. As there is no absolute

quasi-judicial immunity defense available to the Board or to its

members sued in their official capacity under § 1983, we affirm

the district court’s partial denial of summary judgment.

III. DISCUSSION

A. Appellate Jurisdiction

As an initial matter, Turner challenges this court’s

jurisdiction to hear this appeal from the denial of summary

judgment. The general rule is that courts of appeals do not have

appellate jurisdiction to review a district court’s denial of

summary judgment because the denial is not a final order within

the meaning of 28 U.S.C. § 1291. See Lemoine v. New Horizons

Ranch & Ctr., Inc., 174 F.3d 629, 633 (5th Cir. 1999). An

exception to this rule exists when the summary judgment motion is

premised on a claim of absolute or qualified immunity. See

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Our jurisdiction

over this interlocutory appeal arises because the immunity claim

is separate from the underlying merits of the case and fits

within the collateral order exception set out in Cohen v.

Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). This

jurisdiction, however, is limited to appeals based on issues of

8
law and “concern only [the] application of established legal

principles.” Jones v. Collins, 132 F.3d 1048, 1051 (5th Cir.

1998); see also Lemoine, 174 F.3d at 633; Stem v. Ahearn, 908

F.2d 1, 3 (5th Cir. 1990) (“[T]he district court’s denial of a

motion for summary judgment because of the perceived lack of

qualified or absolute immunity constitutes an appealable ‘final

judgment’ only if . . . the immunity defense turns upon an issue

of law and not of fact.”).

Turner argues on appeal that the district court’s denial of

summary judgment turned on a factual question, not an issue of

law. We disagree.

The district court held that the Board and its members sued

in their official capacity are not entitled to a defense of

absolute quasi-judicial immunity. Turner’s challenge to this

holding is a purely legal question, presenting no factual or

evidentiary difficulties. “Whether a defendant possesses

absolute immunity from suit is a question of law.” Walter v.

Torres, 917 F.2d 1379, 1383 (5th Cir. 1990). We therefore have

jurisdiction over this appeal to review the district court’s

denial of immunity.

B. Standard of Review

This court reviews de novo denials of motions for summary

judgment based on qualified or absolute immunity claims. See

Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). “Summary

9
judgment is proper only ‘if the pleadings, depositions, answers

to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law.’” FED. R. CIV. P. 56(c); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986).

“Courts of Appeals consider the evidence in the light most

favorable to the nonmovant, yet the nonmovant may not rely on

mere allegations in the pleadings; rather, the nonmovant must

respond to the motion for summary judgment by setting forth

particular facts indicating that there is a genuine issue for

trial.” Spivey, 197 F.3d at 774-75 (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248-49 (1986)). After the nonmovant

has been given an opportunity to raise a genuine factual issue,

if no reasonable juror could find for the nonmovant, summary

judgment will be granted. See FED. R. CIV. P. 56(c); Celotex

Corp., 477 U.S. at 322.

C. Absolute Quasi-Judicial Immunity Is Inapplicable in Official-

Capacity Actions

Appellants contend that the district court erred in not

holding that the Houma Board and its members7 were entitled to

7
As will be discussed infra, in an official-capacity
action the Board and its members are analytically the same entity
because liability only attaches to the municipality or like
governmental entity.

10
absolute quasi-judicial immunity in their official capacities.8

This argument misconstrues the distinction between immunities

available for “individual-capacity”9 and “official-capacity”

suits under § 1983. Finding that the district court applied the

correct immunity principle for “official-capacity” suits, we seek

only to reaffirm this distinction as it applies to the cases in

this circuit.

“Official-capacity suits . . . ‘generally represent only

another way of pleading an action against an entity of which an

officer is an agent.’” Kentucky v. Graham, 473 U.S. 159, 165

(1985) (quoting Monell v. New York City Dep’t. of Soc. Servs.,

436 U.S. 658, 690 n.55 (1978)). Accordingly, a § 1983 suit

naming defendants only in their “official capacity” does not

involve personal liability to the individual defendant.

Concomitantly, defenses such as absolute quasi-judicial immunity,

that only protect defendants in their individual capacities, are

unavailable in official-capacity suits. See Hafer v. Melo, 502

U.S. 21, 25 (1991) (“[T]he only immunities available to the

defendant in an official-capacity action are those that the

governmental entity possesses.”); see also Johnson v. Kegans, 870

8
As set out in the procedural background, appellants
framed their appeal as challenging the district court’s holding
as it applied to both individual- and official-capacity claims.
9
We understand individual-capacity claims and personal
capacity claims to be synonymous. See Kentucky v. Graham, 473
U.S. 159, 165 n.10 (1985) (“Personal capacity actions are
sometimes referred to as individual capacity actions.”).

11
F.2d 992, 998 n.5 (5th Cir. 1989) (“Immunity does not bar suits

against defendants in their official capacities.”); Burge v.

Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).

The Supreme Court clarified this distinction in Kentucky v.

Graham and again in Hafer v. Melo, finding immunity to be

inapplicable in § 1983 suits against government officials in

their “official capacity.”

As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against
the entity. It is not a suit against the official
personally, for the real party in interest is the entity.
Thus, while an award of damages against an official in his
personal capacity can be executed only against the
official’s personal assets, a plaintiff seeking to recover
on a damages judgment in an official-capacity suit must look
to the government entity itself.

Graham, 473 U.S. at 166 (citations omitted); see also Hafer, 502

U.S. at 25 (reiterating the reasoning of Graham); Burge, 187 F.3d

at 466 (“Unlike government officials sued in their individual

capacities, municipal entities and local governing bodies do not

enjoy immunity from suit, either absolute or qualified, under

§ 1983.”).10

10
For plaintiffs such as Turner, however, surmounting an
appellant’s immunity argument is only the first step. By framing
his suit only against the Houma Board members in their “official
capacity,” he will have to plead and prove that the Board had a
custom or policy to discriminate. See Monell v. New York City
Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978) (“[A] local
government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents. Instead, it is when execution
of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an

12
 Appellants’ contention that the Houma Board members should

be granted absolute quasi-judicial immunity in their official

capacities derives from a misreading of the case law in this

circuit. To be fair, this circuit has not been explicit in

articulating which “capacity” we have granted absolute quasi-

judicial immunity; however, a precise reading of the cases relied

on by appellants demonstrate that the holdings in Graham and

Hafer have been consistently applied in this circuit and offer no

support for the appellants’ argument.

Appellants primarily rely on Mylett v. Mullican, 992 F.2d

1347 (5th Cir. 1993), for the proposition that the doctrine of

absolute quasi-judicial immunity applies to civil service boards

and their members in both individual and official capacities.

Mylett was a Texas police officer who was suspended from the

police force. Mylett alleged violations of the First and

Fourteenth Amendments, as they related to the disciplinary

proceedings surrounding his suspension. A 42 U.S.C. §§ 1983 and

entity is responsible under § 1983.”). Graham detailed the
particular elements of an official-capacity claim as follows:

More [than a deprivation of a federal right] is required in
an official-capacity action, however, for a governmental
entity is liable under § 1983 only when the entity itself is
a ‘moving force’ behind the deprivation, . . . thus, in an
official-capacity suit the entity's ‘policy or custom’ must
have played a part in the violation of federal law.

Graham, 473 U.S. at 166 (citations omitted). As Turner pleaded a
claim that defendants unlawfully pursued a policy and practice of
discriminating against him solely because of his race, we leave
it to the district court to determine the merits of this claim.

13
1985 suit was brought against the police chief, three fellow

police officers, the members and director of the civil service

commission, and seven members of the city council. The civil

service commissioners were sued in their individual and official

capacities. The district court dismissed the personal-capacity

claims against the civil service members on the basis of absolute

quasi-judicial immunity. Importantly, the suit against the

municipality and the police chief was not dismissed and was tried

to a jury.

In upholding the district court’s dismissal on absolute

quasi-immunity grounds, this court held “that the individual

Commissioners are entitled to absolute immunity for the

performance of their official duties.” Mylett, 992 F.2d at 1353

(emphasis added). Appellants erroneously interpret this to mean

that the Houma Board members are immune in their official

capacities.

The performance of official duties creates two potential

liabilities, individual-capacity liability for the person and

official-capacity liability for the municipality. Mylett only

discussed the former, never addressing the latter because

Mylett’s suit against the municipality had already gone forward

to the jury. In essence, his official-capacity suit against the

members of the Civil Service Commission had already been accepted

and had gone to the jury as a suit against the city. Because “an

official-capacity suit is, in all respects other than name, to be

14
treated as a suit against the entity,” Graham, 473 U.S. at 166,

and the entity at issue was the municipality, the court was not

required to make a determination regarding the official-capacity

action. The court’s discussion was necessarily cabined to the

open question of individual-capacity immunity.11 We therefore

read Mylett as governing only individual-capacity claims, and

remaining consistent with Graham and Hafer, do not accept

appellants’ interpretation of “official-capacity” immunity.

Courts discuss immunity defenses without clearly

articulating to whom and in which capacity those defenses

apply,12 resulting in confusion which has an obvious cause. In

11
This reading is further supported by the fact that this
court analyzed the individual commissioners’ immunity under the
Cleavinger v. Saxner doctrine applicable to personal-capacity
immunity, not official-capacity immunity. See 474 U.S. 193, 201-
02 (1985). Cleavinger involved an appeal by members of a Prison
Institutional Discipline Committee requesting absolute immunity
from a personal damages action. The Supreme Court rejected the
committee members’ request, finding their position warranted only
qualified immunity for damages actions brought against them in
their individual capacities. See Cleavinger, 474 U.S. at 207-08.
In addition, the cases cited to support the court’s holding
only relate to immunity for individual-capacity suits. See Brown
v. Griesenauer, 970 F.2d 431 (8th Cir. 1992) (suing official in
individual capacity); Lentsch v. Marshall, 741 F.2d 301 (10th
Cir. 1984) (suing witness in individual capacity); Hollowell v.
Gravett, 703 F. Supp. 761 (E.D. Ark. 1988) (suing private
attorney contractually involved with city in unspecified
capacity); Burton v. Peartree, 326 F. Supp. 755 (E.D. Pa. 1971)
(suing 44 government officials in individual capacities).
12
The blame for this confusion must be shared with
litigants who are not precise in their pleadings. See Graham,
473 U.S. at 167 n.14 (“In many cases, the complaint will not
clearly specify whether officials are sued personally, in their
official capacity, or both. ‘The course of proceedings’ in such
cases typically will indicate the nature of the liability sought

15
any case in which a defendant government official is sued in his

individual and official capacity, and the city or state is also

sued, there potentially exists an overlapping cause of action.

The official-capacity claims and the claims against the

governmental entity essentially merge. Thus, when the suit

against the city or state fails for a jurisdictional, procedural,

or pleading defect, the remaining immunity discussion by the

courts necessarily concerns only the personal liability of

individuals sued in their individual capacities.

Appellants’ failure to grasp this point is evidenced by

their reliance on cases that have granted an unspecified immunity

to individuals, but have also recognized a separate action

against the city on the same facts.13 We read these cases as

discussing only individual-capacity immunity because a grant of

official-capacity immunity would also have barred the claim

to be imposed.”).
13
For example, in Thomas v. City of Dallas, 175 F.3d 358
(5th Cir. 1999), and lower court decisions such as Brossette v.
City of Baton Rouge, 837 F. Supp. 759 (M.D. La. 1993) and
Jefferson v. City of Hazlehurst, 936 F. Supp. 382 (S.D. Miss.
1995), courts have found absolute quasi-judicial immunity for
government officials and yet also have recognized that claims
against the city were not barred by that immunity. See Thomas,
175 F.3d at 362 n.2 (analyzing individual immunity, but also
recognizing that a parallel suit against the City of Dallas had
been partially resolved on summary judgment in plaintiff’s
favor); Brossette, 837 F. Supp. at 764 (recognizing cause of
action against the city, but dismissing the suit as without
merit); Jefferson, 936 F. Supp. at 391 (same). It follows from
these cases that the immunity discussed could not have been
official-capacity immunity, because that immunity would also have
precluded the suit against the city.

16
against the city, contrary to Monell and its progeny. Cf. Thomas

v. City of Dallas, 175 F.3d 358 (5th Cir. 1999).

Appellants also erroneously rely on discussions of immunity

in cases granting absolute individual immunity in § 1983 suits

against the state. In these cases, there can be no official-

capacity immunity suit, because the entity of the state cannot be

sued without abrogating Eleventh Amendment immunity.14 Thus, the

discussion of immunity in these cases must center around

individual immunity and not, as the appellants claim, individual

14
See Will v. Michigan Dep’t of State Police, 491 U.S. 58,
71 & n.10 (1989); see also Ying Jing Gan v. City of New York, 996
F.2d 522, 529 (2d Cir. 1993) (“The immunity to which a state’s
official may be entitled in a § 1983 action depends initially on
the capacity in which he is sued. To the extent that a state
official is sued for damages in his official capacity, such a
suit is deemed to be a suit against the state, and the official
is entitled to invoke the Eleventh Amendment immunity belonging
to the state.”).

17
and official immunity.15 These cases, therefore, add no support

to appellants’ reading of our official-capacity immunity cases.16

Finally, appellants place great emphasis on the history and

doctrinal development of absolute quasi-judicial immunity as it

relates to quasi-judicial entities. See e.g., Bradley v. Fisher,

13 Wall. 335 (1871); Pierson v. Ray, 386 U.S. 547 (1967); Imbler

v. Pachtman, 424 U.S. 409 (1976); Butz v. Economou, 438 U.S. 478

(1978). We take no issue with this argument as it relates to

individuals being sued in their individual capacities. Reliance

on these cases for official-capacity claims, however, blurs the

distinction between the types of liability, and thus immunity

defenses, that arise from an individual-capacity suit and the

15
For example, in O’Neal v. Mississippi Board of Nursing,
the appellants ignore the discussion describing the lower court’s
dismissal of the official-capacity claims based on Eleventh
Amendment immunity. See 113 F.3d 62, 64 (5th Cir. 1997). The
subsequent discussion, therefore, necessarily focused on the
personal liability of the defendants. The appellants make the
same error in relying on Chiz’s Motel & Restaurant Inc. v.
Mississippi State Tax Commission, 750 F.2d 1305 (5th Cir. 1985).
In that case, the court’s discussion of absolute immunity focused
on individual liability only after precluding § 1983 liability of
the state based on the Eleventh Amendment immunity jurisdictional
bar. See id. at 1307; see also Horwitz v. State Bd. of Med.
Exam’rs., 822 F.2d 1508 (10th Cir. 1987); Johnson v. Rhode Island
Parole Bd. Members, 815 F.2d 5 (1st Cir. 1987).
16
Other cases listed by appellants to support their broad
reading of absolute quasi-judicial immunity are equally
inapposite, involving only individual-capacity claims. See
Hulsey v. Owens, 63 F.3d 354, 355 (5th Cir. 1995) (“Hulsey sued
Owens and Green ‘in their individual/personal capacities. . . .”
(emphasis added)); Watts v. Burkhart, 978 F.2d 269, 271 (6th Cir.
1992) (“[T]he complaint was amended to make it clear that the
board members were being sued in their individual capacities.”).

18
lack of liability and resulting lack of immunity in official-

capacity suits. Pointedly, we note that the above Supreme Court

cases and all of the post-Graham cases cited by the appellant

involve the personal liability of defendants sued in their

individual, not official, capacities under § 1983. We therefore

find no merit in appellants’ argument.

IV. CONCLUSION

For the above stated reasons, we AFFIRM.

19