Professional Documents
Culture Documents
Smith v. Department of Human, 10th Cir. (2000)
Smith v. Department of Human, 10th Cir. (2000)
OCT 6 2000
PATRICK FISHER
Clerk
No. 00-6046
(D.C. No. 99-CV-615)
(W.D. Okla.)
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff Patsy Smith operated a day care center until the State of Oklahoma
revoked her child care facility license and canceled her Day Care Provider
Contract and her participation in the Child and Adult Care Food Program.
Defendants are employees, supervisors, and the present and past directors of the
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
-2-
been interpreted to bar a suit by a citizen against the citizens own State in
Federal Court.
[l]ike federal officers, state officers who seek absolute exemption from personal
liability for unconstitutional conduct must bear the burden of showing that public
policy requires an exemption of that scope.
Butz v. Economou , 438 U.S. 478, 506 (1978)). The district court therefore did
not err in determining that the immunity question as to defendants Carlisle,
Collins, Smith, Ross, and Yell depended on the resolution of factual issues that
would be improper under Rule 12(b)(6).
126 F.3d 1288, 1291 (10th Cir. 1997). We consider only the amended complaint,
construing plaintiffs allegations and any reasonable inferences drawn from them
in her favor. See Dill v. City of Edmond , 155 F.3d 1193, 1203 (10th Cir. 1998).
Because qualified immunity is asserted, however, the standard is somewhat
different than in the typical Rule 12(b)(6) case.
cannot state a claim against him under 1983 unless she establish[es] a
deliberate, intentional act by the supervisor to violate constitutional rights.
Jenkins v. Wood , 81 F.3d 988, 994-95 (10th Cir. 1996) (quoting
Woodward v.
City of Worland , 977 F.2d 1392, 1399 (10th Cir. 1992)). [I]t is not enough for
This court has not yet decided whether the Supreme Courts decision in
Crawford-El v. Britton , 523 U.S. 574 (1998), requires us to modify this
heightened pleading standard and we have continued to employ it.
See Ramirez
v. Department of Corrections , 222 F.3d 1238, 1241 n.2 (10th Cir. 2000). Because
the parties do not challenge this standard, we need not consider that question
here.
2
-6-
a plaintiff merely to show a defendant was in charge of other state actors who
actually committed the violation.
Id. at 994.
Plaintiff alleges in her seventh cause of action that Mr. Miller failed to
provide the same process of law to child care facility license holders as is given
to other professional license holders.
and ninth causes of action, plaintiff alleges that defendant Miller caused the
violation of her civil rights through his negligent supervision and training of other
defendants who were his employees.
that her day care center was treated differently than other centers.
See Appellees
Br. at 26. In either case, her allegations are conclusory and nonspecific, and she
fails to allege that defendant Miller knew about and acquiesced in the alleged
violations of her rights by other defendants.
Plaintiffs eighth and ninth claims, alleging that Mr. Miller failed to train
his employees, are likewise insufficient. Plaintiff alleges no more than that
Mr. Miller was director when his subordinates took actions about which she
complains. See Appellants App. at 44-46, 54-55. In essence, these claims assert
-7-
liability on the part of Mr. Miller under the theory of respondeat superior. That
doctrine, however, cannot support liability under 1983.
See Monell v.
Department of Social Servs. , 436 U.S. 658, 691 (1978). Plaintiffs claims against
defendant Miller must be dismissed.
We do not address defendants argument that plaintiff had no property
interest in her day care license because defendants did not raise this issue in
the district court.
Michael R. Murphy
Circuit Judge
-8-