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.