11.16.2005

W.D. Va. Notes Split re Proper Course When Plaintiff's 1983 Claim is Silent as to Capacity

Per Plaster v. Brown, Slip Copy, 2005 WL 3021961 (W.D. W. Va. Nov 08, 2005):

Circuits have split over the proper course of action to take when plaintiff's § 1983 claim is silent as to capacity. Id. at 59-60. The Sixth and Eighth Circuits presume that defendant is only being sued in his official capacity if the complaint does not state otherwise. Id. at 59-60. A majority of circuits, including the Fourth Circuit, look to the substance of the plaintiff's claim, the relief sought and the course of the proceedings to determine the nature of a § 1983 suit when plaintiff fails to allege capacity. Id. at 59. In this case, the question of capacity need not be resolved.

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