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

### OCT 6 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

PATSY A. SMITH, an Individual, d/b/a Little Peoples Ltd.,

Plaintiff-Appellee,

v. DEPARTMENT OF HUMAN SERVICES, State of Oklahoma, The ex rel; KATHY CALVIN, individually, and in her official capacity as a Department of Human Services Employee; VIVIAN CARLISLE, individually, and in her official capacity as a Department of Human Services Employee; JUDY COLLINS, individually, and in her official capacity as a Department of Human Services employee; KAY DODSON, individually, and in her official capacity as a Department of Human Services employee; SUSAN HALL, individually, and in her official capacity as a Department of Human Services employee; SHERRI KLYE, individually, and in her official capacity as a Department of Human Services employee; PAM S. LAFERNEY, individually, and in her official capacity as a Department of Human Services employee; GEORGE A. MILLER, individually, and in his official capacity as Director of the Oklahoma Department of Human Services; TREENA S. ROSS, individually, and in her official No. 00-6046 (D.C. No. 99-CV-615) (W.D. Okla.)* This order and judgment is not binding precedent, e xcept under the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. -2- capacity as a Department of Human Services employee; MARLENE SMITH, individually, and in her official capacity as a Department of Human Services employee; DARLA YELL, individually, and in her official capacity as a Department of Human Services employee,

Defendants-Appellants.

ORDER AND JUDGMENT *

Before BRORBY , PORFILIO , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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 cancele d her Day Care Provider Contract and her participation in the Child and Adu lt Care Food Program. Defendants are employees, supervisors, and the pres ent and past directors of the-3-

Oklahoma Department of Human Services. Plaintiff s ued defendants under 42 U.S.C. §§ 1983 and 1985, alleging that they cons pired to violate her property and liberty interests and her right to due process in violation of the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. Defendant s appeal from the district court’s order denying their motion to dism iss plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6). We have jurisdiction und er 28 U.S.C. § 1291 because the district court denied defendants’ claim that th eir absolute or qualified immunity warranted dismissal. See Tonkovich v. Kansas Bd. of Regents , 159 F.3d 504, 515 (10th Cir. 1998). Defendants argue on appeal that: (1) the district court is without jurisdiction under the Eleventh Amendment to hear p laintiff’s § 1983 claim for declaratory relief; (2) defendants Carlisle, Collin s, Smith, Ross, and Yell are absolutely immune from suit based on their testimony at plaintiff’s license revocation hearing; (3) defendant Miller is entitle d to qualified immunity on plaintiff’s claims against him; and (4) the facts a lleged in the complaint do not overcome defendants’ qualified immunity defense. We review de novo the district court’s denial of El eventh Amendment immunity. See ANR Pipeline Co. v. Lafaver , 150 F.3d 1178, 1186 (10th Cir. 1998). Defendants contend that the district court lacks jurisdiction over plaintiff’s § 1983 claim because she seeks only a d eclaratory judgment. In fact,-4-

plaintiff seeks a declaratory judgment that defenda nts’ actions were unconstitutional; general, special, and punitive damages; and prospective injunctive relief. See Appellants’ App. at 59. “[T]he Eleventh Amendmenthas been interpreted to bar a suit by a citizen againstthe citizen’s own State in Federal Court.” Johns v. Stewart , 57 F.3d 1544, 1552 (10th Cir. 1995) (quotation omitted). This bar is not absolute, however. See id. at 1553. The district court lacks jurisdiction to enter a declaratory judgment alone in a § 1983 action.
See id. However, the district court has jurisdiction to h ear a § 1983 claim for prospective injunctive relief, and may enter an anc illary declaratory judgment in such a case. See id. Defendants’ first argument is therefore without m erit. We are also not persuaded by defendants’ argument that defendants Carlisle, Collins, Smith, Ross, and Yell are absolutely immune from suit based on their testimony at plaintiff’s license revocation h earing. We review the denial of absolute immunity de novo. See Scott v. Hern , 216 F.3d 897, 908 (10th Cir. 2000). Whether a witness is entitled to absolute i mmunity or only qualified immunity hinges on whether the witness was more lik e a lay witness or a complaining witness under the common law. See Anthony v. Baker , 955 F.2d 1395, 1399-1400 (10th Cir. 1992); see also Malley v. Briggs , 475 U.S. 335, 340-43 (1986) (deciding that police officer having function of complaining witness is entitled only to qualified immunity, as at common law). “[W]hether [a-5-

given defendant] was a complaining witness or a laywitness is a factual question to be resolved by the district court.” Anthony , 955 F.2d at 1399-1400. Further, “[l]ike federal officers, state officers who ‘seek absolute exemption from personal liability for unconstitutional conduct must bear th e burden of showing that public policy requires an exemption of that scope.’” Malley , 475 U.S. at 340 (quoting
Butz v. Economou , 438 U.S. 478, 506 (1978)). The district court th erefore did not err in determining that the immunity question a s to defendants Carlisle, Collins, Smith, Ross, and Yell depended on the reso lution of factual issues that would be improper under Rule 12(b)(6). See Appellants’ App. at 63. Defendants next argue that defendant Miller is enti tled to qualified immunity on plaintiff’s claims against him. Mr. Mi ller is alleged to have been the Director of the Department of Human Services while most of the actions occurred about which plaintiff complains. See id. at 44. “Qualified immunity shields government officials performing discretionary funct ions from individual liability under 42 U.S.C. § 1983 unless their conduct violate s ‘clearly established statutory or constitutional rights of which a reasonable pers on would have known.’” Baptiste v. J.C. Penney Co. , 147 F.3d 1252, 1255 (10th Cir. 1998) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). Because defendants’ q ualified immunity defense was raised in the context of a mot ion to dismiss under Fed. R. Civ. P. 12(b)(6), our review is de novo. See Breidenbach v. Bolish ,2 This court has not yet decided whether the Supreme Court’s 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). Becaus e the parties do not challenge this standard, we neednot consider that question here.

-6- 126 F.3d 1288, 1291 (10th Cir. 1997). We consider only the amended complaint, construing plaintiff’s allegations and any reasonab le 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, th e standard is somewhat different than in the typical Rule 12(b)(6) case. See Breidenbach , 126 F.3d at 1291. That is, “we apply a heightened pleading standard, requiring the [amended] complaint to contain ‘specific, non-concl usory allegations of fact sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objecti vely reasonable in light of clearly established law.’” Dill , 155 F.3d at 1204 (quoting Breidenbach , 126 F.3d at 1293). 2In addition, because defendant Miller was a supervisor, plaintiff cannot state a claim against him under § 1983 unles s she “establish[es] ‘a deliberate, intentional act by the supervisor to vi olate 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-7-

a plaintiff merely to show a defendant was in charg e of other state actors who actually committed the violation.” Id. at 994. Plaintiff alleges in her seventh cause of action t hat Mr. Miller failed to provide the same process of law to child care facil ity license holders as is given to other professional license holders. See Appellants’ App. at 53. In her eighth and ninth causes of action, plaintiff alleges that defendant Miller caused the violation of her civil rights through his negligentsupervision and training of other defendants who were his employees. See id. at 54-56. The allegations in plaintiff’s seventh cause of act ion are insufficient to state an equal protection claim against defendant M iller. In her complaint, she asserts that child care facility license holders ar e treated differently than other professional license holders. See id. at 53. In her brief on appeal, she argues that her day care center was treated differently than other centers. See Appellee’s Br. at 26. In either case, her allegations are con clusory and nonspecific, and she fails to allege that defendant Miller knew about an d acquiesced in the alleged violations of her rights by other defendants. See Jenkins , 81 F.3d at 995. Plaintiff’s eighth and ninth claims, alleging that Mr. Miller failed to train his employees, are likewise insufficient. Plaintif f 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, the se claims assert-8-

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). Plaintiff’s claims aga inst defendant Miller must be dismissed. We do not address defendants’ argument that plainti ff had no property interest in her day care license because defendants did not raise this issue in the district court. See Singleton v. Wulff , 428 U.S. 106, 120 (1976). Appellee’s motion to certify questions of state lawis denied. The judgment of the United States District Court for the WesternDistrict of Oklahoma is AFFIRMED in part and REVERSED in part, and the case is REMANDED for additional proceedings.

Entered for the Court

Michael R. Murphy Circuit Judge