Unpublished Disposition, 940 F.2d 1533 (9th Cir. 1991)
Annotate this CaseJerry BISHOP, Michael V. McGrath, Plaintiffs-Appellants,v.Amos E. REED, et al., Defendants-Appellees.
No. 91-35261.
United States Court of Appeals, Ninth Circuit.
Submitted July 29, 1991.* Decided Aug. 1, 1991.
Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.
MEMORANDUM**
Jerry Bishop, a Nevada state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action challenging a digital rectal probe conducted in 1984 when he was a Washington state prisoner.1 We affirm in part and reverse in part and remand to the district court.
The district court properly determined, and Bishop concedes on appeal, that Bishop's claim for injunctive relief from future digital rectal probes is moot because he is no longer incarcerated in Washington and the prison policy concerning probes has been amended. See Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015 (9th Cir. 1989). The district court erred, however, in dismissing Bishop's claim for damages against prison officials. Although a section 1983 action for damages may not be brought against prison officials in their official capacities, see Will v. Michigan Dep't of State Police, 109 S. Ct. 2304, 2311-12 (1989), neither Will nor the eleventh amendment bars actions for damages against prison officials in their individual capacities, see Price v. Akaka, 928 F.2d 824, 828-29 (9th Cir. 1991). Although Bishop did not specify in his complaint that he was suing prison officials in their individual capacities, he sought damages for the alleged misconduct, which we construe as a suit against the officials in their individual capacities. See id. at 828. As the government properly concedes, the district court erred in dismissing the action for damages.2 In so holding, we make no comment on the merits.
AFFIRMED in part, REVERSED in part, and REMANDED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Michael V. McGrath appeared as a co-plaintiff in the district court, but did not sign the notice of appeal. Because each pro se appellant must sign the notice of appeal personally, we dismiss McGrath's appeal for lack of jurisdiction. See Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986)
Bishop and the government agree that the district court should allow Bishop to amend his complaint to specify that his action is against the officials in their individual capacities. Amendment, however, is unnecessary because under Price, we presume that the officials are named in their individual capacities. See 928 F.2d at 828
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