* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

September 22, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WILLIAM WESLEY CHOATE, P.E.;

WESLEY HOUSE IRREVOCABLE

TRUST,

Plaintiffs-Appellants,

v.

ROY EDWARD LEMMINGS,

individually, STEVE SAXON,

individually; BRYANT BAKER,

individually; TROY DONER,

individually; OFFICE OF THE

STATE FIRE MARSHAL, the State of

Oklahoma (ex rel.); ANGELA

DEGRAFFENREID, individually;

OFFICE OF CODE ENFORCEMENT,

the City of Seminole, Oklahoma

(ex rel.),

Defendants-Appellees.

Nos. 07-7099, 07-7100 & 08-7010

(D.C. No. 6:07-CV-00206-JHP)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and

McCONNELL, Circuit Judge.
-2-

Plaintiff William Wesley Choate, appearing pro se, appeals the district

court’s denial of injunctive relief and its ultimate dismissal of this 42 U.S.C.

§ 1983 action against the City of Seminole, the State of Oklahoma, and several

individual defendants. Choate claims the defendants violated a multitude of his

constitutional rights when they demolished a building that he owned in Seminole

and then issued an abatement order with respect to the demolition site. 

Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part,

REVERSE in part, and REMAND for further proceedings.

I.

A. Underlying Dispute and the Fire

In 2005, Choate purchased an old church building located at 401 N. Second

Street in Seminole, Oklahoma. At the time, the building had been condemned by

the city and bore a warning sign indicating that it was in violation of the city’s

Housing Code and had been determined to be unsafe. After buying the building,

Choate argued with the city’s Office of Code Enforcement (“OCE”) concerning

its postings of code violations and designation of the property as a public

nuisance. At the same time, he was locked in a dispute with Angela

DeGraffenreid, an employee of the Oklahoma Gas and Electric Company

(“OG&E”), over her refusal to authorize permanent electrical service to the

building absent a certificate of inspection for code compliance.
1 Choate also brought claims under 42 U.S.C. §§ 1985 & 1995 and 18 U.S.C.

§§ 241 & 247, but even construing his pro se brief liberally, he does not appear to

pursue those claims on appeal. Accordingly, we will not address them. General

Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1225 n.1 (10th Cir. 2007).

-3-

Meanwhile, on January 7, 2007, much of the building was destroyed in a

fire caused by arson. After the fire, the Seminole Fire Department Chief, Roy

Edward Lemmings, and his deputy, Bryant Baker, determined that the building’s

remains were hazardous to the public. After consulting with the State Fire

Marshal, they hired Troy Doner, an independent contractor, to raze the structure

completely, which Doner did on January 8. Thereafter, City Manager Steve

Saxon issued an abatement order declaring the building’s remains a public

nuisance. Choate objected to the order and demanded an administrative hearing,

which was held on April 23. When the order was upheld, he appealed the matter

further to the Seminole City Council, which, after a special public hearing, also

voted to uphold the order. Having exhausted his administrative remedies, Choate

then filed this lawsuit seeking injunctive relief and damages.

In a verified complaint dated July 3, 2007, Choate alleged that Lemmings,

Baker, Doner, Saxon, and DeGraffenreid unconstitutionally deprived him of the

use of his property in violation of 42 U.S.C. § 1983.1

 He also brought claims

against the State of Oklahoma and the City of Seminole challenging the

constitutionality of certain state statutes. After denying a motion for preliminary

injunction filed by Choate, the district court granted several motions to dismiss
2 “To obtain a preliminary injunction, the movant must show: (1) a

substantial likelihood of success on the merits; (2) irreparable harm to the movant

if the injunction is denied; (3) the threatened injury outweighs the harm that the

preliminary injunction may cause the opposing party; and (4) the injunction, if

issued, will not adversely affect the public interest.” General Motors, 500 F.3d

1222, 1226 (10th Cir. 2007).

-4-

filed by the defendants, ultimately terminating the case in January 2008. 

Choate’s various appeals, which we consolidated for procedural purposes, are

summarized below.

B. Orders Appealed

i. Denial of Preliminary Injunction (07-7100)

At the same time he filed his complaint, Choate filed a motion for a

preliminary injunction seeking a stay of the city’s abatement order. He argued

that disturbing the site of his former building would frustrate the criminal

investigation of the arson and prevent him from calculating his own losses. The

district court held a hearing on the motion on August 8, 2007. 

On September 4, a magistrate judge issued a Report and Recommendation

addressing each of the preliminary injunction factors and recommending that

Choate’s motion be denied.2

 First, he concluded that Choate had failed to

demonstrate a likelihood of success as to any of his constitutional claims. With

respect to any First Amendment claim that could be inferred from the complaint,

the magistrate found nothing to indicate that any of the defendants’ actions were
3 The complaint included a number of vague references to Choate’s use of

the building for religious purposes.

4 The district court’s denial of preliminary injunctive relief was an

(continued...)

-5-

motivated by religious animus.3 He concluded that Choate’s Fourteenth

Amendment procedural due process claim would likely fail because it was clear

that Choate had availed himself of significant process in resisting the abatement

order. The magistrate also concluded that Choate was unlikely to prevail on his

substantive due process claim because there was nothing to indicate that the

relevant nuisance laws had been applied in a deliberately arbitrary manner. 

Finally, he concluded that the city’s enforcement of its nuisance laws did not give

rise to a claim under the Fifth Amendment’s Takings Clause. 

At the irreparable harm prong of the analysis the magistrate found there had

been no showing that monetary damages would be inadequate to compensate

Choate for his alleged injuries. He further held that Choate had been given ample

time to do whatever he wished with the property and that it was unnecessary to

preserve the debris because the arson investigation was complete. Finally, he

held that in addition to the above factors, public safety concerns tipped in favor of

the city’s right to enforce the abatement order.

On October 17, over Choate’s objections, the district court issued an order

affirming and adopting the Report and Recommendation and denying injunctive

relief. Choate’s appeal of that order is case no. 07-7100.4
4

(...continued)

appealable interlocutory order under 28 U.S.C. § 1292(a)(1). It was not briefed as

such, however, because the district court promptly resolved all claims against all

parties. Therefore, we treat this part of the appeal as though it were from a denial

of a permanent injunction.

5 Earlier, on October 17, the court had granted separate motions filed by

Doner and the State of Oklahoma. Choate did not file notices of appeal as to

those orders, as was his practice with the other defendants. Nonetheless, we will

treat his docketing statement, which lists 10/17/07 among the dates of the orders

appealed from, as the functional equivalent of a notice of appeal concerning the

dismissals of Doner and the State. See B. Willis, C.P.A., Inc. v. BNSF Ry. Corp.,

531 F.3d 1282, 1296 (10th Cir. 2008) (noting that we may, in limited

circumstances, treat a pro se litigant’s docketing statement as a notice of appeal). 

We affirm the district court’s grant of the State’s motion for substantially the

same reasons articulated in its order dated October 17, 2007 (district court

doc. 83). And we affirm its dismissal of Doner for reasons explained below.

-6-

ii. Dismissal of Lemmings, Baker, and Saxon (07-7099)

On November 8, 2007, the district court issued an order granting motions to

dismiss filed by Lemmings, Baker, and Saxon on the grounds of qualified

immunity.5

 After discussing the requirements of a qualified immunity defense,

the court concluded that Lemmings and Baker exercised discretion in determining

that Choate’s building posed a danger to the public and had to be demolished. 

Likewise, it found that Saxon exercised discretion in declaring the site a public

nuisance and issuing the abatement order. And it concluded that those actions did

not deprive Choate of his property without due process. The court acknowledged

that “‘due process ordinarily requires an opportunity for “some kind of hearing”

prior to the deprivation of a significant property interest.’” Aplt. App., doc. 20

at 5 (quoting Hodel v. Va. Surface Mining and Recl. Ass’n, 452 U.S. 264, 299
-7-

(1981)). But it pointed out that a pre-deprivation hearing is not always required,

particularly “where the state is confronted with an emergency.” Id. (citing Hodel,

452 U.S. at 299-300). The district court thus concluded,

[b]ecause clear precedent exists allowing the deprivation of property

interests without a hearing in emergency situations, it is impossible

to say that Baker, Lemmings, and Saxon were objectively

unreasonable in believing that their actions were not in violation of

any clearly established constitutional rights.

Id. The court’s decision to grant qualified immunity to the city officials is the

subject of Choate’s appeal in case no. 07-7099.

iii. Dismissal of OCE and DeGraffenreid (08-7010)

On January 14, 2008, the district court issued orders granting motions to

dismiss filed by the two remaining defendants, OCE and DeGraffenreid. It held

that Choate failed to state a claim against OCE, explaining that under Monell v.

Department of Social Services, 436 U.S. 658, 691 (1978), a § 1983 claim against

a municipal entity cannot be predicated upon respondeat superior liability. The

court explained that to prevail over OCE, Choate would have to “show ‘that the

unconstitutional actions of an employee were representative of an official policy

or custom of the municipal institution, or were carried out by an official with

final policy-making authority with respect to the challenged action.’” Id., doc. 30

at 3 (quoting Camfield v. Oklahoma City, 248 F.3d 1214, 1229 (10th Cir. 2001)). 

In the district court’s view, Choate’s complaint challenged the actions of

individual OCE employees rather than any action taken by OCE as a municipal
-8-

entity. Furthermore, it found his complaint was devoid of any allegations that

those employees acted either pursuant to an official policy or with final

policy-making authority. Thus, it concluded Choate had no § 1983 claim. 

The court rejected Choate’s § 1983 claim against DeGraffenreid because it

concluded that he failed to allege any state action on her part.

Choate’s contention is that because OG&E’s refusal to provide him

with service was motivated by unwillingness on OG&E’s part to

break the law, OG&E’s refusal . . . amounts to state action. Under

Choate’s theory of the law, any person choosing to comply with the

law–rather tha[n] break it–is a state actor for purposes of § 1983. 

That is simply not the case.

Aplt. App., doc. 29 at 3. Choate appeals the dismissals of DeGraffenreid and

OCE in case no. 08-7010.

II. Discussion

A. Appellate Jurisdiction

Because of the piecemeal fashion in which Choate initiated these

appeals–filing at least one notice of appeal prematurely–we have an obligation to

satisfy ourselves that we have jurisdiction. Weise v. Casper, 507 F.3d 1260, 1263

n.2 (10th Cir. 2007). Choate filed three notices of appeal in this action, two of

them on November 13, 2007, before the district court issued its final order

terminating the case. Appellate jurisdiction was proper over his first appeal

because it challenged the district court’s denial of injunctive relief. See 28 U.S.C.

§ 1292(a)(1). 
-9-

His second notice of appeal challenged the district court’s November 8,

2007, order dismissing Lemmings, Baker, and Saxon. That order was non-final,

and therefore not appealable. 28 U.S.C. § 1291; see Rekstad v. First Bank Sys.,

Inc., 238 F.3d 1259, 1261 (10th Cir. 2001) (“Aside from a few well-settled

exceptions, federal appellate courts have jurisdiction solely over appeals from

final decisions”) (quotation omitted). We have held, however, that “[a]n

otherwise nonfinal decision becomes final and appealable if the district court

adjudicates all remaining claims against all remaining parties before the appellate

court acts to dismiss the appeal on the merits for lack of jurisdiction.” B. Willis,

C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 1282, 1295 (10th Cir. 2008) (quotation

omitted). Here, the district court issued its final orders terminating the case on

January 14, 2008, while Choate’s appeal was pending in this court. Under BNSF,

that order effectively ripened his premature notice of appeal. We therefore see no

impediment to our jurisdiction. See id.
-10-

B. Denial of Injunctive Relief (07-7100)

We review the district court’s denial of injunctive relief for abuse of

discretion. Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1198 (10th Cir.

2000). “Under this standard, we accept the district court’s factual findings unless

they are clearly erroneous and review application of legal principals de novo.” 

Id. (quotation omitted). Choate’s preliminary injunction motion essentially

sought to prevent the city from clearing his property of debris left from the fire

and demolition. His arguments on appeal, as before the district court, are difficult

to follow but he appears to argue primarily that any clean-up would destroy

evidence and hinder his ability to calculate his damages for purposes of this

lawsuit. After a hearing, the district court rejected these arguments for reasons

that we summarized above. Having reviewed the record, we see no error in the

district court’s factual findings or legal reasoning. We therefore affirm its denial

of injunctive relief for substantially the same reasons set forth in the magistrate

judge’s Report and Recommendation, dated September 4, 2007, which was

affirmed and adopted by the district court on October 17.

C. Dismissal of Lemmings, Baker, and Saxon (07-7099)

The district court dismissed Choate’s claims against Lemmings, Baker, and

Saxon under Rule 12(b)(6) because it held those defendants were entitled to

qualified immunity. We review this decision de novo. Peterson v. Jensen,

371 F.3d 1199, 1202 (10th Cir. 2004). That the procedural posture of the
-11-

dismissal was under Rule 12 rather than Rule 56 is important because “[a]sserting

a qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the

defendant to a more challenging standard of review than would apply on summary

judgment.” Peterson, 371 F.3d at 1201. In Peterson, we explained that “[i]n

reviewing a Rule 12(b)(6) motion in the context of qualified immunity, a district

court should not dismiss a complaint for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Id. (quotation omitted). The standard for a

Rule 12(b)(6) dismissal has changed somewhat since Peterson, for we now ask

whether the specific allegations in the complaint “plausibly support a legal claim

for relief.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 n.2 (10th Cir.

2007) (emphasis added). Under either standard, however, we conclude that

Choate’s complaint stated a § 1983 claim against Lemmings, and that the district

court therefore erred in granting his motion to dismiss. For reasons explained

below, we affirm the dismissals of Baker and Saxon. 

Choate alleged that Lemmings violated his due process rights by ordering

the demolition of his building immediately after the fire without notice. 

Lemmings does not dispute taking this action. But he argued in his motion to

dismiss that he is entitled to qualified immunity under a long-standing rule that

sanctions the deprivation of property without due process in the case of an

emergency. See Hodel, 452 U.S. at 299-300 (setting forth the emergency
-12-

situation exception to the normal pre-deprivation notice and hearing

requirements). The district court agreed with Lemmings. At the beginning of its

analysis, however, it recognized that Choate had asserted a constitutional

violation:

The underlying constitutional claim asserted by Plaintiff as the basis for his

§§ 1983, 1985 claims is an alleged deprivation of his right to ‘use his

property under the United States Constitution and its laws, without due

process[.]’ 

Aplt. App., doc. 20 at 4 (quoting Compl. at 5). Nevertheless, the court went on to

conclude that “[b]ecause clear precedent exists allowing the deprivation of

property interests without a hearing in emergency situations, it is impossible to

say that . . . Lemmings . . . [was] objectively unreasonable.” Id. at 5. 

We agree with the district court that under a certain set of facts Lemmings

may have been justified in taking such summary action. As the Supreme Court

remarked in Hodel, “deprivation of property to protect the public health and

safety is one of the oldest examples of permissible summary action.” 452 U.S. at

300 (quotation omitted). The problem with the district court’s analysis is that it

erroneously placed the burden on Choate to plead the absence of exigent

circumstances, when the onus should have been on Lemmings to show the

reasonableness of his belief that immediate demolition was necessary. See Gomez

v. Toledo, 446 U.S. 635, 640 (1980) (“[T]his Court has never indicated that
-13-

qualified immunity is relevant to the existence of plaintiff’s cause of action;

instead we have described it as a defense available to the official in question.”). 

The Supreme Court made clear in Gomez that there is no basis for imposing on a

§ 1983 plaintiff the obligation to anticipate and plead around the qualified

immunity defense. See id. More recently, in the wake of Crawford-El v. Britton,

523 U.S. 574 (1998), this court specifically rejected a heightened pleading

standard for civil rights plaintiffs facing the immunity defense. See Currier v.

Doran, 242 F.3d 905, 916-917 (10th Cir. 2001). 

A § 1983 complaint needs but two allegations to state a cause of action:

(1) that the plaintiff was deprived of a federal right; and (2) that the person who

deprived him acted under color of state law. Gomez, 446 U.S. at 640. Moreover,

these allegations need not be pled with specificity. All that is required are

“sufficient facts, that when taken as true, provide plausible grounds that discovery

will reveal evidence to support plaintiff’s allegations.” Gann v. Cline, 519 F.3d

1090, 1092 (10th Cir. 2008) (quotations omitted). The district court must accept

all well-pleaded allegations as true and view them in the light most favorable to

the plaintiff. See id.

Viewed under these standards, Choate’s complaint stated a § 1983 claim

against Lemmings. He alleged that after the fire, his building was still standing

and that “without notice to [him] . . . but for alleged safety concerns, Lemmings

immediately procured its demolition . . . even of the parts not substantially
-14-

damaged by fire.” Aplt. App., doc. 1 at 4. He also alleged that Lemmings

“represented to [him] and others concerned that [he] was acting under color of

law.” Id. at 5. Crediting these allegations as true, and affording the complaint

“the solicitous construction due a pro se filing,” Dudnikov v. Chalk & Vermilion

Fine Arts, Inc., 514 F.3d 1063, 1073 (10th Cir. 2008), we can infer from these

allegations that Lemmings, acting under color of law, ordered Choate’s building

to be demolished without notice or a hearing. We can even infer that he did so

despite the lack of exigent circumstances, though we reiterate that the pleading

rules did not require Choate to anticipate the immunity defense. Crawford-El,

523 U.S. at 595. It is clear from the district court’s albeit short analysis that it

rejected Choate’s § 1983 claim against Lemmings because the complaint did not

plead the absence of the “emergency situation” exception set forth in Hodel. 

Because Choate was not required to do so, we reverse the district court’s

November 8, 2007, order with respect to defendant Lemmings.

Turning to Baker and Saxon, the district court held that those defendants

were also entitled to qualified immunity with respect to their roles in the

demolition of Choate’s building and subsequent abatement order. We need not

delve into the qualified immunity analysis here, however, because we conclude

that the complaint failed to state a claim as to these defendants. See Mann v.

Boatright, 477 F.3d 1140, 1145 (10th Cir. 2007) (noting our authority to affirm a

dismissal on any legal ground supported by the record). As we noted earlier, a
6 Choate’s claim against Doner is not helped by his confusing allegation that

Defendant Doner knew or should have known of the ordinary and

customary practices of his trade as would protect private property

rights, which duties and safeguards he flagrantly ignored or failed to

employ when he undertook demolition work without validating

questionable representations.

Aplt. App., doc. 1 at 6,

-15-

§ 1983 plaintiff must allege facts that could plausibly support the claimed

violation of a federal right. With respect to Baker and Saxon, Choate’s complaint

fails miserably. His minimal allegations against Saxon amount to nothing more

than a charge that Saxon used the administrative process in an attempt to clear the

property of debris. And aside from an incomprehensible paragraph concerning an

alleged delay on the part of the fire department, the complaint does not even

mention Baker. Thus, we conclude as a matter of law that the complaint failed to

state a claim as to these defendants, and the district court properly dismissed the

claims against them pursuant to Rule 12(b)(6). We reach the same conclusion

with respect to defendant Doner. Choate’s bare allegation that he was the

individual who physically demolished the building is simply not sufficient to state

a § 1983 claim.6

D. Dismissals of DeGraffenreid and OCE (08-7010)

Finally, we address the dismissals of Angela DeGraffenreid and the Office

of Code Enforcement. As we summarized above, the district court dismissed
-16-

DeGraffenreid after concluding that Choate failed to allege state action on her

part. It dismissed OCE because it found that Choate’s allegations targeted only

individuals, and the Supreme Court has held that a municipality cannot be liable

under § 1983 on a respondeat superior theory for merely employing a tortfeasor. 

Monell, 436 U.S. at 691. Upon de novo review, we find no error in its orders

dismissing these defendants under Rule 12(b)(6). We therefore affirm the district

court’s grant of DeGraffenreid’s and OCE’s motions to dismiss for substantially

the same reasons stated in its January 14, 2008, orders.

III. Conclusion

For the reasons stated above, in case 07-7100, we AFFIRM the district

court’s order denying injunctive relief. In case 07-7099, we AFFIRM the district

court’s dismissals of Baker, Saxon, Doner, and the State of Oklahoma, but we

REVERSE the dismissal of Lemmings and REMAND that portion of the action

for further proceedings. In case 08-7010, we AFFIRM the dismissals of

DeGraffenreid and OCE.

Entered for the Court

Wade Brorby

Senior Circuit Judge