F I L E D

United States Court of Appeals

Tenth Circuit

MAR 1 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KATHI SUTTON, as Legal Guardian of

James E. Sutton, II, a minor,

Plaintiff-Appellant,

v.

UTAH STATE SCHOOL FOR THE

DEAF AND BLIND, DWIGHT MOORE,

individually and in his official capacity as

principal for the Utah State School for the

Deaf and Blind, JOHN DOES 1-5, and

JANE DOES 1-5,

Defendants-Appellees.

No. 97-4019

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 96-CV-880)

Stacey L. Hayden of Poole & Associates, Salt Lake City, Utah, for Plaintiff-Appellant.

Brent Burnett (Debra J. Moore on the briefs) of Utah Attorney General’s Office,

Salt Lake City, Utah, for Defendants-Appellees.

Before HENRY, HOLLOWAY and LUCERO, Circuit Judges.

HOLLOWAY, Circuit Judge.
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Plaintiff-appellant, Kathi Sutton, on behalf of her minor son, James Sutton, brought

the present action against defendants, Utah State School for the Deaf and Blind and Dwight

Moore, its principal, in the Third District Court, State of Utah, in September 1996. An

amended complaint was filed in October 1996 which expanded the plaintiff’s claims to allege

a federal civil rights violation under 42 U.S.C. § 1983, as well as state law claims of

negligence, breach of contract and promissory estoppel. App. at 1-11. Defendants

subsequently removed this action to the United States District Court for the District of Utah,

by a notice of removal filed by the Office of the Attorney General of Utah. Id. at 12-14. The

federal district judge, upon motion of defendants, dismissed the § 1983 cause of action with

prejudice for failure to state a claim. App. at 152-160. With the dismissal of the sole federal

claim, the district court declined to retain supplemental jurisdiction over the remaining state

law claims and dismissed them without prejudice. Id. at 160. 

This appeal followed. The central substantive issue before this court is whether the

judge below erred in dismissing the § 1983 claim.

I

The plaintiff-appellant relies on these facts which she averred: James suffers from

severe cerebral palsy, mental retardation, total blindness, and he is unable to speak. App. at

2. Because of his disabilities, James attended school at the Utah State School for the Deaf

and Blind. Id. at 2. On February 16, 1995, James communicated to his mother, Kathi, that

he had been sexually assaulted while using the bathroom at the school. Id. at 2. James
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communicated to Kathi through sign language that a boy at school had touched him several

times in his genital area while James was in the bathroom; that the boy who touched him

went to his school and was a very large boy, not in his class. Amended Complaint, ¶ 7, App.

at 2. Kathi immediately notified the school superintendent, Robertson, the principal, Moore,

and James’s teacher, LaRae Terry. The next morning Kathi met with Moore and Terry and

told them exactly what James had told her. “She specifically informed them that James had

told her that he had been repeatedly sexually abused, while he was going to the bathroom,

at the school, by another student who was much larger than James.” Id. at ¶ 8, App. at 2. 

In this meeting Moore and Terry repeatedly assured Kathi that the children were not

allowed to go to the bathroom alone and that there was no way this could have happened to

James. Id. at ¶ 9, App. at 3. Moore and Terry took no further action and told Kathi there was

nothing more they could do but provide constant supervision of James while in the bathroom.

Kathi was reassured and promised by Moore and Terry that James would be supervised at

all times while in the bathroom. Id. at ¶ 10, App. at 3.

On February 23, 1995, James again complained to his mother that he had been

assaulted by the same boy in the school’s bathroom. Moore also notified Kathi of the assault

and the assailant’s apprehension on the same day. Amended Complaint, ¶ 11, App. at 3. The

juvenile assailant, a student at the school, was later convicted of gross lewdness and forcible

sexual assault on James, arising from the two attacks in February 1995. During the

assailant’s trial, a teacher’s aide at the school, Diana Rogers, testified that on February 23,
1The district court took the facts detailing Rogers’ trial testimony from

plaintiff-appellant’s memorandum in opposition to defendants’ motion to dismiss. The

amended complaint does not detail the facts which led to the February 23 incident. No

appellate issue is raised concerning the judge’s reliance on the facts alleged in

plaintiff-appellant’s memorandum.

2As with the facts concerning Rogers’ testimony, the procedural history recited by the

district court is not contained in the amended complaint. These facts are, however, contained

in plaintiff-appellant’s memorandum in opposition to defendants’ motion to dismiss.

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she had escorted James to the bathroom and stood outside the open door waiting for him. 1

Id. at 97, 154. While James used the facilities, Rogers abandoned her post in order to answer

a telephone. About three minutes after leaving the bathroom, Rogers returned to find the

door closed. Id. Hearing a strange noise, Rogers entered the bathroom, forced open the stall,

and discovered the same assailant molesting James. Id. Moreover, plaintiff-appellant avers

that as a result of the School’s and Moore’s conduct, James has suffered severe physical and

psychological harm, uncontrollable rages, severe nightmares, compulsive and uncontrollable

behavior, and severe mental distress. App. at 5.

In February 1996, Kathi filed a Notice of Claim on behalf of James under Utah Code

Ann. § 63-30-11 with the Utah Department of Education, the Utah Department of Risk

Management, and the Utah Attorney General, seeking damages for physical pain and

emotional distress.2 App. at 100, 119-126, 154. In May 1996, the State of Utah denied

liability and refused to pay any damages. Id. at 100-101, 128-129, 154. On September 6,

1996, Kathi filed the present action in Utah state court, alleging negligence. Id. at 101, 154.

Kathi filed an amended complaint on October 7, 1996, in the state court, adding allegations
3The Eleventh Amendment provides: “[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 States by Citizens of another State, or by Citizens or Subjects of any Foreign

State.” U.S. Const. amend. XI. Despite its express language, the Amendment has been

interpreted to apply to suits against a State by its own citizens. See Idaho v. Coeur d’Alene

Tribe of Idaho, 521 U.S. 261, 267-68 (1997).

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of breach of contract, promissory estoppel, and a civil rights violation under 42 U.S.C.

§ 1983. In support of the latter claim, it was averred that defendants, by failing to supervise

James and other students while in the restroom as school policy required, created the danger

that permitted the assailant to repeatedly molest James while in the restroom unsupervised.

Amended Complaint, ¶ 23, App. at 6. 

With this assertion of a federal claim, defendants removed the action to the United

States District Court for the District of Utah and filed a motion to dismiss under

Fed. R. Civ. P. 12(b)(6). Id. at 12-14, 76-91. After conducting a hearing on defendants’

motion in December 1996, the district judge entered his memorandum and order, finding that

Kathi failed to allege the violation of a constitutional right under § 1983, and granting

defendants’ motion to dismiss with prejudice under Rule 12(b)(6) with respect to the sole

federal claim. Id. at 152-160. The judge declined then to entertain the supplemental state

law claims and dismissed them without prejudice.

II

At oral argument before this court, counsel for defendants raised for the first time the

Eleventh Amendment3 as a defense to plaintiff-appellant’s claim. Because the Eleventh
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Amendment defense has jurisdictional attributes, see Edelman v. Jordan, 415 U.S. 651,

677-78 (1974); Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1559 (10th Cir. 1992),

modified on other grounds on reh’g, 995 F.2d 992, 994 (10th Cir. 1993), it may be raised at

any point, including for the first time on appeal. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 99 n.8 (1984); see also V-1 Oil Co. v. Utah St. Dep’t of Pub.

Safety, 131 F.3d 1415, 1419 (10th Cir. 1997)(appellate court may raise and consider

Eleventh Amendment immunity sua sponte). 

The Eleventh Amendment declares a policy and sets forth an explicit limitation

on federal jurisdictional power of such compelling force that this Court will

consider the issue arising under this amendment . . . even though urged for the

first time in this Court.

Ford Motor Co. v. Dep’t of Treasury of Indiana, 323 U.S. 459, 467 (1945). If applicable, the

Eleventh Amendment bars suits against states in federal court. V-1 Oil Co., 131 F.3d at

1420.

A

“Arm of the State”

Only a state or “arms” of a state may assert the Eleventh Amendment as a defense to

suit in federal court. Ambus, 995 F.2d at 994. Whether a particular political subdivision is

an “arm of the state” is determined by examining four factors: (1) the characterization of the

governmental unit under state law; (2) the guidance and control exercised by the state over

the governmental unit; (3) the degree of state funding received; and (4) the governmental

unit’s ability to issue bonds and levy taxes on its own behalf. Ambus, 995 F.2d at 994 (citing
4We note that Utah has defined “school district” to include the schools for the deaf and

blind, Utah Code Ann. § 53A-8-102(7), but has done so only in the limited context of school

employee termination procedures. Id. Moreover, Utah includes the schools for the deaf and

blind as recipients of proceeds of bonds issued pursuant to the Public Education Revenue

Bond Act, Utah Code Ann. § 53A-20a-102, but Utah law excludes local school districts.

5Though the name of the school includes the word “State,” mere labeling of a

governmental entity is not sufficient to find it an “arm of the state.” 

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Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). 

We have previously held that local school districts in Utah are not “arms of the state”

for purposes of asserting the Eleventh Amendment. Ambus, 995 F.2d at 997 (noting that

there was significant local board authority over school district operations and any “monetary

damages awarded to plaintiff in this case would not come directly from the state treasury, but

would be assessed against the school board . . . .”). But Ambus does not necessarily

determine the issue whether the Utah State School for Deaf and Blind is an arm of the state

because the school is an entity independent of the local school district. See Utah Code Ann.

§ 53A-25-101-102 (School for the Deaf), § 53A-25-201-202 (School for the Blind); cf.

Roach v. University of Utah, 968 F. Supp. 1446, 1450-51 (D. Utah 1997)(University of Utah

is an “arm of the state.”).4

We are thus required to apply the four factors described above to determine whether

the Utah State School for Deaf and Blind is an “arm of the state.” 5 First, we examine its

characterization under Utah law. Like local school districts, the School for Deaf and Blind

shares in state sovereign immunity. See S.H. By and Through R.H. v. Utah, 865 P.2d 1363,

1364-65 (Utah 1993)(citing Utah Code Ann. § 63-30-10(2)). But as we stated in Ambus, the
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fact that a school district is entitled to state sovereign immunity does not determine the extent

of Eleventh Amendment immunity. Ambus, 995 F.2d at 995.

Second, it appears that the School for the Deaf and Blind exercises control similar to

the control exercised by a local school district. Like local school districts, Schools for the

Deaf and Blind are public corporations that “may sue and be sued, contract and be contracted

with, and may take and hold . . . real and personal property required for its uses.” Utah Code

Ann. § 53A-25-102; § 53A-25-202. The School is free to handle its property as it sees fit.

Id. 

Unlike local school districts, the persons who make up the board of trustees which

governs the School for the Deaf and Blind are members of the State of Utah’s Board of

Education. Utah Code Ann. § 53A-25-104; § 53A-25-204. In Ambus, we gave significant

weight to the fact that local school boards, which consist of members who are locally elected,

exercise responsibilities free from state control. Ambus, 995 F.2d at 996. Because the

School for the Deaf and Blind is governed by a board consisting solely of state board of

education members, clearly the state exercises control over the school.

The third and fourth Mt. Healthy factors concern whether a judgment against the

school would be paid out of the state treasury. Id. The key question is whether funds to

satisfy a money judgment would come directly from the state or indirectly through

commingled state and local funds or state indemnification provisions. Id. 

In Utah, judgments against local school districts are not paid directly from the state
6The lack of clarity of the School’s funding to cover liabilities is due in part to the fact

that the defendants raised the Eleventh Amendment defense at oral argument with no

supporting documentation. We do note that the Schools for the Deaf and Blind receive

money for the financing of projects or buildings through bonds issued by the State Board of

Education. Utah Code Ann. § 53A-20a-103.

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treasury. Id. at 997 (“the Utah Constitution prohibits the state from assuming a school

district’s debt, so the state could not directly pay judgments rendered against the district.

Utah Const. art. XIV, § 6.”).

It is not clear from Utah’s statutory scheme and case law how the State School for

Deaf and Blind satisfies money judgments against it.6 Nevertheless, we are persuaded that

the State School for the Deaf and Blind is an “arm of the state” entitled to Eleventh

Amendment immunity. In Watson v. University of Utah Med. Ctr., 75 F.3d 569 (10th Cir.

1996), we held that the University of Utah and its medical center were “arms of the state.”

Id. at 575-77. There we placed emphasis on the fact that the University was controlled by

a sixteen-member board of regents, fifteen of whom were appointed by the Governor. Id.

Similarly, the State School for the Deaf and Blind’s board members are members of the State

Board of Education. We hold that the Utah State School for the Deaf and Blind is an arm

of the State for purposes of asserting the Eleventh Amendment.

B

Waiver of the Eleventh Amendment

Because the School is an “arm of the state,” it may assert the Eleventh Amendment

as a defense in federal court unless it has waived the defense and consented to suit in federal
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court. As a general rule, “[i]n the absence of an unequivocal waiver specifically applicable

to federal-court jurisdiction, we decline to find that [the State] has waived its constitutional

immunity.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). In Atascadero,

the Court noted two of the ways by which a State may effectuate a waiver of its constitutional

immunity. Id. at 238 n.1. First, the state’s constitution or statutes may waive the Eleventh

Amendment. Id. Second, a state may effectuate a waiver “by otherwise waiving its

immunity to suit in the context of a particular federal program.” Id.

We have previously held that Utah has not waived its Eleventh Amendment immunity

by statute. In Johns v. Stewart, 57 F.3d 1544 (10th Cir. 1995), we held Utah did not waive

its immunity with respect to a suit brought in federal court alleging a violation of the Social

Security Act, Fair Labor Standards Act and Utah’s Administrative Rulemaking Act,

reasoning “Utah law expressly provides that its state district courts have exclusive original

jurisdiction over suits brought against it.” Id. at 1554 (citing Utah Code Ann. § 63-30-16).

Because Utah provided for exclusive original jurisdiction in its own courts, we concluded

Utah clearly intended “to retain Eleventh Amendment immunity.” Id.; see also V-1 Oil, 131

F.3d at 1421; Richins v. Industrial Constr., Inc., 502 F.2d 1051, 1055 (10th Cir. 1974). Thus

we do not find a waiver of Eleventh Amendment immunity in the Utah statutes themselves.

But our inquiry into waiver does not end here. In this case plaintiff-appellant filed suit

in state court. Then it was the defendants, the School and Moore, the principal, that removed

the case to federal court. In Gallagher v. Continental Ins. Co., 502 F.2d 827, 830 (10th Cir.
7

In Archuleta v. Lacuesta, 131 F.3d 1359, 1362 (10th Cir. 1997), we discussed

Eleventh Amendment immunity as a jurisdictional bar and stated that “it is unclear whether

the Supreme Court would consider Eleventh Amendment immunity to be an affirmative

defense or a jurisdictional bar (which nonetheless can be waived) for the purposes of the

removal statute.” See also Flores v. Long, 110 F.3d 730, 732 (10th Cir. 1997)(same).

Neither Archuleta nor Flores discussed or cited Gallagher.

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1974), we held that the Eleventh Amendment defense was waived when a defendant State

removed a case from state court to federal court. Id. In holding that the State’s removal of

the case to federal court waived the State’s Eleventh Amendment immunity, we stated: 

Whether immunity is a constitutional or common law bar, the Court has held

that the bar may be waived by consent to suit . . . . In the instant case the state

made a general appearance, joined in the removal petition and the resistance

to plaintiffs’ remand motion, moved to dismiss for failure to state a claim, and

on appeal reasserts its contentions made in the district court. It appears by its

attorney general whose authority to take the mentioned actions is not

questioned. 

Id. Gallagher has not been overruled by this court.7

 “We cannot overrule the judgment of

another panel of this court. We are bound by the decision absent en banc consideration or

a superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724

(10th Cir. 1993).

Supreme Court cases subsequent to Gallagher do not mandate a contrary rule. In

Atascadero, the Supreme Court clarified the test for determining waiver of the Eleventh

Amendment. The test is strict and there must be an “unequivocal intent” to waive the

immunity. Atascadero, 473 U.S. at 241. But an unequivocal intent to waive immunity seems

clear when a state, facing suit in its own courts, purposefully seeks a federal forum. See
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Wisconsin Dep’t of Corrections v. Schacht, 118 S. Ct. 2047, 2056-57 (1998)(Kennedy, J.,

concurring); see also Gardner v. New Jersey, 329 U.S. 565, 574 (1947)(State waives

Eleventh Amendment immunity by voluntarily appearing in bankruptcy court to file a proof

of claim).

The Court’s recent decision in Schacht does not abrogate our Gallagher holding. The

plaintiff in Schacht had filed a 42 U.S.C. § 1983 claim in state court against state officials

in both their official and personal capacities. The state removed the case to federal court and

argued that the Eleventh Amendment destroyed federal jurisdiction. The Court held that “the

presence in an otherwise removable case of a claim that the Eleventh Amendment may bar

does not destroy removal jurisdiction that would otherwise exist.” Id. at 2051.

Despite dictum to the contrary, see id. at 2053 (“at the time of removal, this case fell

within the ‘original jurisdiction’ of the federal courts. The State’s later invocation of the

Eleventh Amendment placed the particular claim beyond the power of the federal courts to

decide, but it did not destroy removal jurisdiction over the entire case.”), it is clear by the

Court’s holding that it was not prepared to address, and did not resolve, the issue whether

removal itself constituted a waiver. Id. at 2051 (the presence in an otherwise removable case

of a claim that the Eleventh Amendment may bar . . . .”)(emphasis added); id. at 2054

(Kennedy, J., concurring)(“In joining the opinion of the Court, I write to observe we have

neither reached nor considered the argument that, by giving its express consent to removal

of the case from state court, Wisconsin waived its Eleventh Amendment immunity.”).
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Even though Gallagher stands for the proposition that the actions of the state there

waived Eleventh Amendment immunity, Gallagher does not discuss the issue whether the

state official who removes the case had authority to waive Eleventh Amendment immunity.

Richins v. Industrial Constr., Inc., 502 F.2d 1051 (10th Cir. 1974), is instructive. We there

pointed out that the Utah statutes (§ 63-30-16) provided that:

The district courts shall have exclusive original jurisdiction over any action

brought under this act and such actions shall be governed by the Utah Rules

of Civil Procedure in so far as they are consistent with this act.

Id. at 1055 (emphasis in original). The same statutory provision exists today with immaterial

changes in wording. See Utah Code Ann.§ 60-30-16. We there faced the question whether

the federal court had jurisdiction over a claim against the Utah State Road Commission to

award judgment in favor of a defendant/third-party plaintiff for conversion of personal

property. We said that the statute quoted above and the force of the Eleventh Amendment

barred such jurisdiction:

The Utah statute goes beyond mere consent to be sued in its own courts in that

it expressly declares that its own courts are the exclusive tribunals for suits

against it. This is a positive expression of policy against suits against Utah in

United States courts.

Richins, 502 F.2d at 1055. We rejected the idea that the Eleventh Amendment could be

waived by the Attorney General of Utah by entering an appearance and litigating in the case

in the face of the statutory language. We stated:

We are of the opinion that it cannot be so waived. Some discretion in finding

an implied waiver is suggested by the Supreme Court in Petty v.

Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S. Ct. 785, 3
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L.Ed.2d 804 (1959). The decision, however, of our court in Williams v. Eaton,

443 F.2d 422 (10th Cir. 1971), shows a preference for an approach giving full

effect to the Eleventh Amendment absent some extraordinarily effective

waiver. Neither decision would justify a finding of waiver here.

Id. at 1056 (emphasis added). 

Our question, then, is whether the instant case presents circumstances of an

“extraordinarily effective waiver.” We think that it does. Here, after the filing in the Utah

state court on September 6, 1996, of plaintiff-appellant’s complaint, the School filed a

motion to dismiss in the state court on September 24. On October 7, 1996, plaintiff-appellant

filed an amended complaint and jury demand in the state court. On October 17, 1996, a

notice of removal was filed by the “Office of the Attorney General” of Utah for defendants,

the State School for the Deaf and Blind and the principal, Dwight Moore. Thus, the

invocation of federal court jurisdiction was brought about by defendants’ own counsel.

We are convinced that, as in Gallagher, 502 F.2d at 830, the Eleventh Amendment bar

to suit against Utah was effectively waived by the Office of the Attorney General of Utah.

That office not only caused the removal of the case from state to federal court; the Attorney

General’s Office for the State has also litigated the merits of the case following its

October 17, 1996, removal. The Attorney General’s Office filed in federal court on October

25, 1996, its motion to dismiss with prejudice under Fed. R. Civ. P. 12(b)(6) (failure to state

a claim for relief), App. at 76-77, and its supporting memorandum for dismissal, id. at 78-91,

and its reply memorandum of November 18, 1996, on the lack of merit of the amended
8These memoranda addressed the failure of the amended complaint to state a claim

under § 1983, the qualified immunity of defendant Moore, and sovereign immunity of the

State and its agencies and officers when sued in their official capacity, but not Eleventh

Amendment immunity of the defendants.

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complaint, id. at 142-151.8 In Gallagher, we pointed out that there

The state made a general appearance, joined in the removal petition and the

resistance to plaintiffs’ remand motion, moved to dismiss for failure to state

a claim, and on this appeal reasserts its contentions made in the district court.

It appears by its Attorney General whose authority to take the mentioned

actions is not questioned.

Id. at 830. 

We are persuaded that the actions taken by the state here amounted to an

“extraordinarily effective waiver.” Richins, 502 F.2d at 1056. The Supreme Court has held

that waiver of the Eleventh Amendment occurred where a state filed a claim for taxes in a

bankruptcy reorganization proceeding; the Court rejected objections by the State Attorney

General that entertaining the Trustee’s petitions for adjudication of the tax claims would

constitute a prohibited suit against the state: “When the State becomes the actor and files a

claim against the fund, it waives any immunity it otherwise might have had respecting the

adjudication of the claims.” Gardner v. New Jersey, 329 U.S. 565, 574 (1947) (emphasis

added). See also In re Straight, 143 F.3d 1387, 1392 (10th Cir.), cert. denied, 119 S. Ct. 446

(1998)(waiver of Eleventh Amendment immunity by filing proofs of claim in bankruptcy

court).

The Attorney General’s Office having caused the removal to federal court here, and
9See Wisconsin Dept. of Corrections v. Schact, 118 S. Ct. 2047, 2055 (1998)

(Kennedy, J., concurring)(quoting Gunter).

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having litigated throughout on the merits here, we feel it would be contrary to these

precedents as well as grossly inequitable to allow assertion of the Eleventh Amendment bar

by the contention made at oral argument before us. As the Supreme Court long ago held in

Gunter v. Atlantic Coast Line, 200 U.S. 273, 284 (1906):

Although a State may not be sued without its consent, such immunity

is a privilege which may be waived, and hence where a State voluntarily

becomes a party to a cause and submits its rights for judicial determination, it

will be bound thereby and cannot escape the result of its own voluntary act by

invoking the prohibitions of the Eleventh Amendment. Clark v. Barnard, 108

U.S. 436, 447.9

III

“As the sufficiency of a complaint is a question of law, we review de novo the district

court’s grant of a motion to dismiss pursuant to 12(b)(6),” GFF Corp. v. Associated

Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997), applying the same standards

as the district court. David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir.

1996), cert. denied, 118 S. Ct. 157 (1997). That is, all well-pleaded factual allegations in the

amended complaint are accepted as true and viewed in the light most favorable to the

nonmoving party. GFF, 130 F.3d at 1384. “A 12(b)(6) motion should not be granted ‘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. (quoting Conley v. Gibson, 355 U.S. 41, 45-46

(1957)). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence
10The first, third, and fourth causes of action alleged in the amended complaint are

state law claims of negligence, breach of contract, and promissory estoppel, which the district

court dismissed without prejudice, and which we do not consider in this appeal.

11Although the second cause of action also alleges an equal protection claim,

plaintiff-appellant’s counsel conceded at oral argument on appeal that this case presents no

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that the parties might present at trial, but to assess whether the plaintiff’s complaint alone is

legally sufficient to state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d

1562, 1565 (10th Cir. 1991).

As noted above, some of the facts which the district court relied on in ruling on

defendants’ motion to dismiss are not contained in plaintiff-appellant’s amended complaint.

However, where the judge recited facts from plaintiff-appellant’s memorandum in opposition

to the motion to dismiss, there was and is no objection by either party to his procedure. See

notes 1 and 2, supra. 

A

Stating a Substantive Due Process Claim

As for his second cause of action alleged in the amended complaint,10

plaintiff-appellant claimed that defendants, acting as “persons” under “color of state law,”

deprived James of “his rights, privileges and immunities secured by the U.S. Constitution by

failing to protect [him] from sexual molestation by another student,” in violation of 42 U.S.C.

§ 1983. App. at 5-6. More specifically, plaintiff-appellant alleged that by failing to adhere

to school policy requiring the supervision of James and other students while in the restroom,

defendants “created the danger” which ultimately led to the assaults upon James.11 Id. Based
valid equal protection claim; rather, counsel conceded that the § 1983 cause of action is

grounded entirely in substantive due process.

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on these allegations, plaintiff-appellant sought an unspecified amount of damages from both

defendants, as well as costs and fees. Id. at 7. As support for the § 1983 claim,

plaintiff-appellant incorporated all facts previously set forth in the amended complaint, id.

at 5, which are detailed above.

We begin with the civil rights claims for money damages against the School for the

Deaf and Blind and principal Moore in his official capacity. The Supreme Court held in Will

v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that “neither a State nor its officials

acting in their official capacities are ‘persons’ under § 1983.” Id. at 71. Because the School

and Moore, acting in his official capacity, are not “persons” under § 1983,

plaintiff-appellant’s claims for money damages against them must fail because a cause of

action under § 1983 requires a deprivation of a civil right by a “person” acting under color

of state law. Id. at 64-65.

But a state official in his or her individual capacity is a “person” under § 1983. We

thus consider whether plaintiff-appellant has alleged facts sufficient to state a claim under

§ 1983 against Moore in his individual capacity. “In deciding whether [plaintiff-appellant

has] pled a cognizable claim, we must determine whether [he] can allege the deprivation of

a constitutional right.” Graham v. Independent School Dist. No. I-89, 22 F.3d 991, 993 (10th

Cir. 1994). It is well-settled that a state does not have a constitutional duty to protect its
12As Uhlrig notes, the classic “danger creation” case is the Ninth Circuit case of Wood

v. Ostrander, 879 F.2d 583 (9th Cir. 1989), in which police officers impounded the plaintiff’s

car and abandoned her in a high crime area in the middle of the night. Uhlrig, 64 F.3d at 572.

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citizens from private violence. See DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 195-197 (1989) (noting that “nothing in the language of the Due

Process Clause itself requires the State to protect the life, liberty, and property of its citizens

against invasion by private actors,” and holding that “a State’s failure to protect an individual

against private violence . . . does not constitute a violation of the Due Process Clause”).

Rather, state actors are generally liable under the Due Process Clause only for their own acts.

Id.

There are, however, two established exceptions to this general rule: (1) the “special

relationship” doctrine, and (2) the “danger creation” theory. Uhlrig v. Harder, 64 F.3d 567,

572 (10th Cir. 1995). Abandoning any theory that compulsory school attendance laws give

rise to a “special relationship,” a question we do not reach, plaintiff-appellant relies entirely

on the “danger creation” theory.

B

The “State-Created Danger” Doctrine

The “danger creation” doctrine generally provides that state officials may be liable for

injuries caused by a private actor where those officials created the danger that led to the

harm.12 Plaintiff-appellant presses on appeal two variations of the “danger creation”

doctrine. First, Moore created the danger that James faced by directly participating in placing
13In Graham, we held that “foreseeability cannot create an affirmative duty to protect

when plaintiff remains unable to allege a custodial relationship.” 22 F.3d at 994. Hence,

when no special relationship exists between a plaintiff and defendants, “defendants’ alleged

nonfeasance in the face of specific information which would mandate action does not invoke

the protections of the Due Process Clause. ‘Inaction by the state in the face of a known

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him in harm’s way. Second, Moore failed to adopt a protective policy and inadequately

informed and trained school employees so as to enhance the danger of sexual assault to

James. While we affirm the district court’s dismissal with prejudice as to the first claim, we

reverse the district court on the second claim.

1

Moore’s alleged direct participation in enhancing the danger

“For the state to be liable under § 1983 for creating a special danger ( i.e., where a

third party other than a state actor causes the complained of injury), a plaintiff must allege

a constitutionally cognizable danger.” Uhlrig, 64 F.3d at 572. However, “it is not enough

to show that the state increased the danger of harm from third persons; the [§] 1983 plaintiff

must also show that the state acted with the requisite degree of culpability in failing to protect

the plaintiff.” Id. at 573 (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th

Cir. 1994)). That is, plaintiff-appellant’s claim must be “predicated on reckless or

intentionally injury-causing state action which ‘shocks the conscience’” of federal judges.

Id. at 572-73 (quoting Collins v. City of Harker Heights Tex., 503 U.S. 115 (1992)). Further,

this “danger creation” doctrine “‘necessarily involves affirmative conduct on the part of the

state in placing the plaintiff in danger.’” Id. at 572 n.6 (quoting Graham, 22 F.3d at 995).13
danger is not enough to trigger the obligation; according to DeShaney the state must have

limited in some way the liberty of a citizen to act on his own behalf.’” Id. at 995 (quoting

Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993)). Accordingly, we stated that “[i]n the

absence of a custodial relationship, we believe plaintiffs cannot state a constitutional claim

based upon the defendants’ alleged knowledge of dangerous circumstances.” Id.

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Hence, to hold Moore liable for the injuries suffered by James at the hands of a private

individual, plaintiff-appellant must demonstrate intentional or reckless, affirmative conduct

on the part of Mr. Moore which created the danger, coupled with “a degree of outrageousness

and a magnitude of potential or actual harm that is truly conscience shocking.” Id. at 574;

see also Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996)(“a supervisor may be

individually liable under § 1983 if he directly participates in a constitutional violation . . . .”).

Since plaintiff-appellant does not claim that Moore intentionally created a dangerous

situation for James which ultimately led to James’s injury, plaintiff-appellant’s § 1983 claim

must rest on a showing of reckless conduct on the part of Moore. We have said that an “act

is reckless when it reflects a wanton or obdurate disregard or complete indifference to risk,”

and that reckless intent is established if the state “actor was aware of a known or obvious risk

that was so great that it was highly probable that serious harm would follow and he or she

proceeded in conscious and unreasonable disregard of the consequences.” Medina v. City

and County of Denver, 960 F.2d 1493, 1496 (10th Cir. 1992)). Hence, it is clear that

recklessness, which involves a type of deliberateness, necessarily excludes conduct which

is merely negligent. Uhlrig, 64 F.3d at 573 (citing Collins, 503 U.S. at 127). See also

Archuleta v. McShan, 897 F.2d 495, 499 (10th Cir. 1990) (recklessness includes an element
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of deliberateness).

After carefully considering plaintiff-appellant’s theory of liability based on Moore’s

direct participation in creating danger to James, in light of the above strict standards of

substantive due process employed under § 1983 for succeeding on a danger creation claim,

we agree with the district court that plaintiff-appellant’s direct participation claim fails to

state a cause of action. While the assaults suffered by James are tragic, we simply do not

believe that plaintiff-appellant pled sufficient affirmative acts on the part of Moore which

give rise to a claim for deprivation of James’s constitutional rights.

First, Moore himself did not personally, affirmatively place James in any danger.

Instead, it was Rogers, who is not a defendant in this case, who affirmatively placed James

in danger by leaving him to answer the phone. Because Moore, as the charged defendant,

did not affirmatively act so as to create or enhance the danger to James, plaintiff-appellant’s

claim on this theory fails as a matter of law. See Uhlrig, 64 F.3d at 572 (citing Wood, 879

F.2d at 589-90).

Second, even if Rogers’ actions could be attributed to Moore, we are persuaded that

Moore did not engage in any intentional or reckless affirmative act designed to harm James,

a fact which the judge below heavily relied on in dismissing the action. App. at 158. It is

apparent that Moore sought to provide protection to James while he used the bathroom after

being notified that a molestation had occurred. This conclusion is supported not only by the

promise plaintiff-appellant claims Moore made to her that James would not be permitted to
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use the bathroom unattended, but also by the fact that the teacher’s aide, Diana Rogers,

immediately apprehended the assailant during the second assault upon James. Liability under

the Due Process Clause may not be based on negligent action by Moore. See County of

Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 1718 (1998) (“liability for negligently

inflicted harm is categorically beneath the threshold of constitutional due process”); Collins,

503 U.S. at 128 (a substantive due process violation must be more than an ordinary tort to

be actionable under § 1983); DeShaney, 489 U.S. at 202 (the Due Process Clause “does not

transform every tort committed by a state actor into a constitutional violation”). See also

Uhlrig, 64 F.3d at 573-574 (recognizing that the “shock the conscience” standard, requiring

high level of outrageousness, is employed so that substantive due process claim under § 1983

does not replace state tort law). 

Thus, since the amended complaint does not aver that Moore acted affirmatively to

create the danger to James, the complaint was properly dismissed as to the theory that Moore

directly participated in enhancing the danger to James.

2

Moore’s Liability for Failure to Adopt or Implement a 

Policy or Training to Prevent Sexual Assaults on the Disabled Victim

Plaintiff-appellant argues on appeal that a viable claim has been stated that Moore,

the principal, with deliberate indifference, failed to adequately train school employees or

adopt or implement a policy to prevent sexual assaults like those against James. Brief of

Appellant at 10 (“Mr. Moore recklessly and consciously failed to adopt or implement any
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policy or training to prevent that specific risk [of sexual assault].”). We must agree that such

a viable claim against Moore in his individual capacity was stated. See Green v. Branson,

108 F.3d 1296, 1302-03 (10th Cir. 1997); Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th

Cir. 1988). In reaching this conclusion we follow the instruction of the Supreme Court that

the sanction of dismissal should not be granted “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.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

The detailed averments of plaintiff-appellant are thus crucial. In different portions

of the amended complaint the basis of liability for the principal, Mr. Moore, in his individual

capacity, was laid out. It was alleged that Mr. Moore acted “with reckless indifference and

malice” toward James “when he specifically failed to take action to prevent James Sutton

from being repeatedly molested after being informed by James’s mother of the boy’s

complaints that he was being molested in the restroom while at school . . . .” App. at 5

(emphasis added). These allegations followed statements that notice to Moore included

notification of James’s molestation “in the restroom at the school several times in the past

. . . .” App. at 4 (emphasis added). It was alleged earlier that James had communicated such

molestations on February 16, 1995 (a week before the instant February 23, 1995,

molestation), to plaintiff-appellant Kathi Sutton, stating through his sign language that a boy

at school had touched him several times in his genital area while he was in the bathroom .
14Plaintiff-appellant relies on these allegations as the basis of the defense of her claim

in her Opposition to Defendants’ Motion to Dismiss. App. at 105 (“Yet despite this

knowledge, Mr. Moore recklessly failed to adopt or implement any policy or training to

prevent the very risk he acknowledged awareness of in his meeting with Mrs. Sutton.”).

Thus, the claim for failure to train or adopt a protective policy as to James was spelled out

below.

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App. at 2.14

The complaint also states that James told his mother that the boy who touched him in

the bathroom “was a very large boy that was not in his class .” Id. (emphasis added). The

allegation about the assailant’s size must be considered against the backdrop of James’s

severe disabilities. The complaint alleged that James was 14 years old, that he had severe

cerebral palsy, that he was mentally the age of a three to five-year-old child, and that he was

totally blind and could not speak. App. at 2. All of this history and the tragic circumstances

must be considered in determining the viability of the claim against principal Moore of

deliberate indifference and liability for failure to adopt or implement a policy or training to

prevent violations of James’s rights. See Greason v. Kemp, 891 F.2d 829, 837 (11th Cir.

1990)(considering background of inadequate staff known to supervisor as capable of

supporting jury finding of deliberate indifference).

We find the Eleventh Circuit’s analysis in Greason instructive here. It dealt with a

supervisor’s liability for deliberate indifference to a mental patient’s critical needs, with a

resulting tragic suicide. The supervisor’s liability was couched in terms of deliberate

indifference. “The same standard of deliberate indifference applies to both inadequate
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training and inadequate supervision.” Id. at 837 n.15. The standard of deliberate

indifference laid down in City of Canton v. Harris, 489 U.S. 378, 388 (1989), was followed.

Where a superior’s failure to train amounts to deliberate indifference to the rights of persons

with whom his subordinates come into contact, the inadequacy of training may serve as the

basis for § 1983 liability. Greason held that while municipal liability like that involved in

Canton was not at issue, the analysis of the Supreme Court in Canton was applicable. 891

F.2d at 837. In light of the evidence before it in Greason, the Eleventh Circuit held that

denial of summary judgment was proper because a jury could find that the mental health

director acted with deliberate indifference to Greason’s rights, that a reasonable person in the

director’s position would have known that his conduct constituted deliberate indifference,

and that his conduct was causally related to the grossly inadequate care provided. 

Similarly, here we feel that under the framework of plaintiff-appellant Sutton’s

averments, a viable case for liability of Moore may be proven, establishing the elements of

a deliberate indifference claim as in Greason. See Green, 108 F.3d at 1302-03. Moreover,

here we must make our determination under the Conley test. Viewed in this light, we cannot

say no set of facts could be proven by plaintiff-appellant Sutton to establish a viable due

process claim under § 1983. 

We are further supported in our conclusion by our opinion in Meade v. Grubbs, 841

F.2d 1512 (10th Cir. 1988). There a § 1983 claim against the sheriff was made with a charge

that he failed to properly supervise his deputies, that he was deliberately indifferent to the
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victim’s constitutional rights, and that at least three of the sheriff’s deputies participated in

an assault on the victim. We held that the complaint “sufficiently avers a § 1983 claim

against [the sheriff] in his individual capacity for improperly hiring, training, supervising and

disciplining his deputies.” Id. at 1528; see also Green, 108 F.3d at 1302-03.

We are persuaded that plaintiff-appellant Sutton’s allegations cannot be dismissed as

inadequate in light of the repeated notification to Moore, as pled, of notice that James, with

all his impairments, had been subjected to repeated sexual assaults by the much larger boy.

In light of James’s severe impairments, and the notification to Moore as alleged of danger

to James, and the averment of Moore’s failure to take action to prevent James being

repeatedly molested, App. at 5, we are persuaded that a viable claim that would “shock the

conscience of federal judges” was stated. See Uhlrig, 64 F.3d at 573 (citing Collins, 503

U.S. at 126).

Finally, defendants press a qualified immunity defense against the claim for failure

to train subordinates or to implement a policy to protect a victim like James. Moore is

entitled to a qualified immunity defense if his conduct did not violate “clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982). The law is clearly established when there is “a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight of

authority from other courts must have found the law to be as plaintiff maintains.” Medina

v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992). Moreover, the law
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must be clearly established at the time of the alleged deprivation of the plaintiff’s rights.

Warner v. Grand County, 57 F.3d 962, 964 (10th Cir. 1995). However, a plaintiff need not

present an identical case to show the law was clearly established; instead, a plaintiff must

show only that the “contours of the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Horstkoetter v. Dep’t of Pub.

Safety, 159 F.3d 1265, 1278 (10th Cir. 1998)(quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)). 

We are satisfied that a supervisor’s liability for failing to train subordinates or to

implement a policy to prevent a sexual assault on a severely disabled child like James was

clearly established as of February 1995 when the instant assault occurred. Applying the

Supreme Court’s reasoning in Canton, the Tenth Circuit has clearly established that a

supervisor may be individually liable for failing to adopt or implement policy or training of

subordinates to prevent deprivations of constitutional rights. Meade, 841 F.2d at 1528;

McClelland v. Facteau, 610 F.2d 693, 696-98 (10th Cir. 1979). While here the assault was

committed by a private actor, the Tenth Circuit has also clearly established that a state

official may be liable for the violence committed by private actors under the “dangercreation” doctrine. Uhlrig, 64 F.3d at 572 (citing Medina, 960 F.2d at 1495-99); Graham,

22 F.3d at 995 (“DeShaney . . . leaves the door open for liability in situations where the state

creates a dangerous situation or renders citizens more vulnerable to danger.”). Therefore, the

contours of the right, which plaintiff-appellant asserts was violated, were clearly established
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as of February 1995 and the defense of qualified immunity fails. 

IV

Conclusion

In sum, we AFFIRM the dismissal of the claim against the School for the Deaf and

Blind, and the claim against Moore in his official capacity since they were not “persons”

under § 1983. We AFFIRM dismissal of the claim against Moore in his individual capacity

with respect to the theory of direct participation in creating the danger to James. We

REVERSE the district court’s dismissal with prejudice of plaintiff-appellant’s due process

claim for failure to train or adopt a policy to prevent sexual assaults on the disabled victim

James, and we REMAND the cause for further proceedings on that due process claim and

for the district judge to reconsider whether he should exercise supplemental jurisdiction over

the state law claims.

IT IS SO ORDERED.