* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, t his panel has determined unanimously to grant the parties’ reques t 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 15 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES E. JUSTICE II; PATRICIA G. JUSTICE, Plaintiffs - Appellants,

v. STATE OF OKLAHOMA DEPARTMENT OF HUMAN SERVICES CHILD WELFARE; DENISE WADE; KAREN LEWIS, Child Welfare Social Worker; LANA JONES, Supervisor Child Welfare; MIKE JACKSON, County Director of Muskogee DHS,

Defendants - Appellees. No. 04-7067 (D.C. No. CIV-04-183-WH) (E.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR, LUCERO, and O’BRIEN , Circuit Judges. **2

Oklahoma Residents and Cherokee Nation members Jame s and Patricia Justice appeal pro se the district court’s dismissa l of their 42 U.S.C. § 1983 action against Oklahoma Child Welfare authorities. Allegi ng violations of the Indian Self-Determination and Education Act, 25 U.S.C. § 4 50 (“ISDEA”) and Indian Health Care Improvement Act, 25 U.S.C. §§ 1601-1680 (“IHCIA”), the Justices assert that Oklahoma Department of Human Services ( “DHS”) social worker Denise Wade did not alert the Cherokee Nation that their child was in the hospital, that DHS child welfare supervisor Lana Jo nes allowed dirty toys and an exposed nail in a children’s waiting room, and thatDHS social worker Karen Lewis “denied [their] right to give [their child] 3 Playtex baby bottles to reduce colic/gas.” The district court concluded that the Justices’ claims against DHS were barred by Eleventh Amendment immunity, and that their claims against the named individuals did not allege violations cogniza ble under § 1983. For substantially the same reasons as the district court, we AFFIRM

. We address the issue of sovereign immunity as a pre liminary matter. Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) (immunity is a “threshol d” question). The Eleventh Amendment states that “[t] he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United S tates by Citizens of another State . . . .” U.S. Const. amend. XI. This provis ion “precludes not only actions in3

which the state is directly named as a party, but a lso actions brought against a state agency or state officer where the action is e ssentially one for recovery of money from the state treasury.” Graham v. National Collegiate Athletic Ass’n , 804 F.2d 953, 959 (6th Cir. 1986) (citing Edelman v . Jordan , 415 U.S. 651 (1974)). A state agency is presumptively immune fr om § 1983 damages actions unless Congress abrogates, or the State expressly w aives, immunity. Will v. Michigan Dept. of State Police , 491 U.S. 58, 66 (1989). In the present case, the Justices attempt to sue DH S, an agency of the State of Oklahoma, directly for the recovery of compensat ory and punitive damages. This action is clearly precluded. Congress has notabrogated Oklahoma’s Eleventh Amendment immunity and Oklahoma has not expressly waived its right to sovereign immunity. The Eleventh Amendment does not per se prevent plai ntiffs from bringing suits against state officials in their individual o r personal capacities. Scheuer v. Rhodes , 416 U.S. 232, 238 (1974). Karen Lewis is nonethe less protected by qualified immunity. A state officer is protected b y qualified immunity unless she is violating a clearly established constitutional r ight, “the contours” of which “must be sufficiently clear that a reasonable offic ial would understand that what he is doing violates that right.” Peterson v. Jensen , 371 F.3d 1199, 1202 (10th Cir. 2004). A reasonable official might well decide aga inst giving three bottles to an4

ailing baby without suspecting that any Constitutio nal right was implicated. Furthermore, Harlow v. Fitzgerald , 457 U.S. 800 (1982), permitted the prediscovery dismissal of claims barred by qualified i mmunity in order to avoid the “expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from ac ceptance of public office.” Id. at 814. Although it is unclear under which rule the distric t court based its dismissal of the Justices’ complaint, it did so properly. Se e United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994) (appellate courtis free to affirm a district court decision on any grounds supported by the record). A district court may always dismiss a claim sua sponte under Fed. R. Civ. Proc. 12(b)(6) “when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futi le.” McKinney v. Oklahoma , 925 F.2d 363, 365 (10th Cir. 1991) (internal citati ons omitted). Thus, if the Justices’ complaint failed to state a claim, as is the case, the district court did not err in dismissing it sua sponte. We must construe the pleadings before us liberally because plaintiffs are representing themselves, Haines v. Kerner , 404 U.S. 519, 520 (1972), but we need not search for causes of action in the sea of factual allegations, thereby becoming the Justices’ advocate. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.5

1991). ISDEA and IHCIA are directed only at federa l agencies and federal health services, not at the states. The instant action in volves only state defendants. There is no allegation that defendants are involved in the provision of Indian health services as distinct from general public hea lth services. Although Lana Jones likely had a responsibility to keep hazards i n the waiting room under control, § 1983 does not impose liability “for violations of duties of care arising out of tort law,” Baker v. McCollan , 443 U.S. 137, 146 (1979). In any event, the Just ices have shown no injury. Because DHS is protected by 11th Amendment immunity , because Karen Lewis is protected by qualified immunity, and becau se the Justices did not state a cognizable claim against Denise Wade or Lana Jones, we AFFIRM dismissal of the Justices’ action against all parties.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge