UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARQUISE MILLER, 

 Plaintiff - Appellant, 

v. 

OKLAHOMA DEPARTMENT OF 

HUMAN SERVICES; KATIE SNIDER, 

in her official and individual capacities; 

PAM LAFERNEY, in her official and 

individual capacities; DEANNA 

NICHOLS, in her official and individual 

capacities; JOAN WEST, in her official 

and individual capacities, 

 Defendants - Appellees. 

No. 23-6119 

(D.C. No. 5:22-CV-00507-D) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, BALDOCK, and McHUGH, Circuit Judges. 

_________________________________ 

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

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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 

May 9, 2024

Christopher M. Wolpert 

Clerk of Court

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Marquise Miller, proceeding pro se, appeals from the district court’s dismissal 

of his civil rights suit brought under 42 U.S.C. § 1983. Exercising jurisdiction under 

28 U.S.C. § 1291, we affirm.1

I. BACKGROUND 

Mr. Miller owns a childcare center licensed by the Oklahoma Department of 

Human Services (“OKDHS”). The center contracts with OKDHS to provide 

subsidized childcare services. Starting in 2019, OKDHS increased its oversight of 

the center. On certain visits, OKDHS employees cited the center for both serious and 

non-serious violations. OKDHS initiated a process that could lead to revoking the 

center’s license. 

A. Original Complaint 

In 2022, Mr. Miller sued OKDHS. He also named four OKDHS inspectors in 

both their official and individual capacities. His suit complained about the increased 

oversight of his center and the possibility of losing his license. He alleged that 

OKDHS did not treat certain other centers similarly. Mr. Miller, who is Black, 

claimed the defendants violated his equal protection and substantive due process 

rights under the Fourteenth Amendment and also claimed they violated 42 U.S.C. 

§ 1981. He requested money damages and injunctive relief. 

1

 Because Mr. Miller appears pro se, “we liberally construe his filings, but we will 

not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 

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OKDHS and the individual defendants filed motions to dismiss, which the 

district court granted. The court held Eleventh Amendment immunity barred the 

claims against OKDHS and the claims for money damages against the individual 

defendants in their official capacities. It dismissed the remaining claims against the 

individual defendants, holding the complaint failed to state a claim. The court noted 

that the complaint failed to specify “who is alleged to have done what to whom,” and 

that “Plaintiff repeatedly refers to ‘Defendants’ collectively and fails to articulate 

with specificity the actions taken by the Individual Defendants that allegedly violated 

his rights.” ROA at 149 (quotations omitted). The court granted Mr. Miller the 

opportunity to file an amended complaint against the individual defendants. 

B. Amended Complaint 

Mr. Miller’s amended complaint named the individual defendants only in their 

individual capacities. It alleged that they had treated his childcare center more 

harshly than other centers based on “his race, age, and gender,” ROA at 171, and that 

they were “motivated by racial animus,” ROA at 176-77. The amended complaint 

reasserted his equal protection, substantive due process, and § 1981 claims. 

The defendants again moved to dismiss for failure to state a claim. Before 

filing a response, Mr. Miller moved to strike the motion to dismiss and moved for 

entry of default. Based on the postmark on the copy of the motion to dismiss served 

on him, he contended the motion was untimely because the defendants had served 

him one day after the filing deadline. The district court denied both of Mr. Miller’s 

motions, holding that the defendants’ motion to dismiss was not a “pleading” under 

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Federal Rule of Civil Procedure 12(f), which authorizes striking materials “from a 

pleading.” 

Mr. Miller then filed his response to the defendants’ motion to dismiss. 

Among other arguments, he asserted that because he “is a class of one equal 

protection plaintiff, not a disparate treatment plaintiff,” he did not have to show that 

the individual defendants supervised the other childcare centers that were similarly 

situated to his center. ROA at 293. 

The district court granted the defendants’ motion to dismiss. It did not address 

Mr. Miller’s “class of one” assertions and instead said his claims alleged 

discrimination based on “his age, race, and gender.” ROA at 333. The court, 

concluding that the amended complaint failed to state a claim, said “Although 

Plaintiff’s amended complaint includes additional allegations, in general, these 

allegations amount to ‘labels and conclusions’ and thus, are not entitled to a 

presumption of truth.” ROA at 335 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 555 (2007)). 

Mr. Miller alleged that OKDHS treated two other childcare centers more 

favorably than his own, but the court said that he “fails, at any point, to discuss the 

Individual Defendants’ involvement with either facility.” ROA at 336. “As before, 

Plaintiff again attempts to attribute the collective actions of the Oklahoma 

Department of Human Services to the Individual Defendants.” ROA at 337. The 

court thus held that “Plaintiff’s allegations, construed liberally, do not allow the 

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Court to draw a reasonable inference that the Individual Defendants violated 

Plaintiff’s statutory or constitutional rights.” Id.

After declining to allow further leave to amend, the district court dismissed the 

claims against the individual defendants and entered judgment in favor of all the 

defendants. Mr. Miller timely appealed. 

II. DISCUSSION 

On appeal, Mr. Miller challenges the district court’s (A) denial of his motion 

to strike the individual defendants’ motion to dismiss the amended complaint and of 

his motion for default judgment, (B) treatment of him as a pro se litigant, 

(C) dismissal of the amended complaint, and (D) failure to address his “class of one” 

claim. We affirm on all issues. 

A. Denial of Motion to Strike and Motion for Entry of Default 

Mr. Miller first argues that the district court erred in denying his motions 

(1) to strike the individual defendants’ motion to dismiss the amended complaint and 

(2) for entry of default. The motion for entry of default rested on the motion to 

strike, so we need address only the latter. 

In his motion to strike, Mr. Miller asserted that the defendants did not timely 

file their motion to dismiss because they served Mr. Miller one day after the filing 

deadline. Mr. Miller repeats that argument before this court. But he does not address 

the district court’s reason for denying relief—that Rule 12(f) allows the court to 

strike materials “from a pleading,” and a motion to dismiss is not a pleading. 

See, e.g., Bunn v. Perdue, 966 F.3d 1094, 1099 (10th Cir. 2020) (“Generally, 

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motions, briefs, and memoranda may not be attacked by a motion to strike.” (ellipsis 

and quotations omitted)). 

Because Mr. Miller does not challenge the district court’s reasoning, we affirm 

the denial of his motion to strike and the motion for entry of default. See Nixon v. 

City & Cnty. of Denver, 784 F.3d 1364, 1366, 1369 (10th Cir. 2015) (stating that an 

appellant must “explain what was wrong with the reasoning that the district court 

relied on in reaching its decision” and affirming the dismissal of a claim where 

appellant did not challenge the district court’s reasoning). 

B. Consideration Due a Pro Se Litigant 

Mr. Miller next argues the district court ignored that as a pro se litigant, he 

was entitled to (1) liberal construction of his complaint, (2) multiple opportunities to 

amend his complaint and a determination whether further amendments would be 

futile, and (3) an opportunity to be heard in a civil rights matter. 

First, the district court expressly acknowledged its obligation to construe a pro 

se litigant’s filings liberally. See, e.g., James, 724 F.3d at 1315. It said so at the 

beginning of its dismissal order, see ROA at 332 n.2, and later reiterated that it was 

reading Mr. Miller’s allegations liberally and viewing the allegations in the light 

most favorable to him, see ROA at 337. We see no ground to conclude the district 

court failed to afford him the benefit of liberal construction. See Kellogg v. Watts 

Guerra LLP, 41 F.4th 1246, 1258 (10th Cir. 2022) (finding “no reason to question 

the district judge’s word”), cert. denied, 143 S. Ct. 1022 (2023). 

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Second, the district court gave Mr. Miller an opportunity to amend. It denied a 

second opportunity only after determining Mr. Miller had not corrected the 

deficiencies in his original complaint and noting he had not requested further leave to 

amend. 

We review a denial of leave to amend for abuse of discretion. See Quintana v. 

Santa Fe Cnty. Bd. of Commr’s, 973 F.3d 1022, 1033 (10th Cir. 2020). Although 

“leave to amend shall be freely given,” especially where a party is proceeding pro se, 

Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998), the court did not abuse its 

discretion in declining to give him a second shot at amendment, even without 

expressly determining that amendment would be futile. See Frank v. U.S. West, Inc., 

3 F.3d 1357, 1365 (10th Cir. 1993) (listing, among other reasons justifying denial of 

leave to amend, “failure to cure deficiencies by amendments previously allowed”); 

Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 

1999) (“[N]ormally a court need not grant leave to amend when a party fails to file a 

formal motion.”). 

Mr. Miller relies on our statement in Maynard v. Fallin, 564 F. App’x 943, 

946 (10th Cir. 2014) (unpublished), that “we provide reasonable opportunities for pro 

se litigants to cure defects in their pleadings,” and on our reference in Frank to 

“amendments previously allowed,” 3 F.3d at 1365, stressing the plural use of 

“opportunities” and “amendments.” Mr. Miller overreads this language. This court 

has not required district courts to give a pro se plaintiff multiple opportunities to 

amend. 

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Third, Mr. Miller says this court has “‘recognize[d] the importance of allowing 

a pro se plaintiff in a civil rights matter to be heard.’” Aplt. Opening Br. at 11 

(emphasis omitted) (quoting Cook v. Watkins, 312 F. App’x 112, 113 (10th Cir. 

2009)). But the district court allowed Mr. Miller to be heard. He responded to the 

defendants’ motions to dismiss and amended his complaint. 

C. Dismissal of the Amended Complaint 

Mr. Miller next challenges the dismissal of his amended complaint. We 

review de novo, asking “whether the factual allegations in the complaint, if accepted 

as true, allege a plausible claim for relief.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l 

Bank Ass’n, 771 F.3d 1230, 1236 (10th Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 

662, 678-79 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-57 (2007)). 

A pleading “demands more than an unadorned, the-defendant-unlawfully-harmed-me 

accusation.” Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Id. 

The district court said that “Plaintiff again attempts to attribute the collective 

actions of the Oklahoma Department of Human Services to the Individual 

Defendants.” ROA at 337. Thus, “Plaintiff’s allegations, construed liberally, do not 

allow the Court to draw a reasonable inference that the Individual Defendants 

violated Plaintiff’s statutory or constitutional rights.” Id. Mr. Miller challenges this 

conclusion, stating that multiple paragraphs in the amended complaint “put[ ] each 

individual Defendant on notice.” Aplt. Opening Br. at 11-12. He states that he 

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“cannot find one time where he referred to Defendants collectively as Defendants in 

his amended complaint, as the district court claims.” Id. at 12. 

The crux of Mr. Miller’s amended complaint is that OKDHS treated his 

childcare center less favorably than other centers. The individual defendants are 

liable only for their own actions. See Schneider v. City of Grand Junction, 717 F.3d 

760, 767-68 (10th Cir. 2013). Thus, Mr. Miller must plead facts showing that the 

individual defendants named in the amended complaint, not OKDHS as a whole, 

treated other childcare centers more favorably. 

The amended complaint lacks facts showing that any individual defendant 

dealt with the other childcare centers. Factual support is absent for statements such 

as “[individual defendant] applies a different set of standards for non-minority owned 

and/or operated childcare centers than for black owned and operated ones” and 

“[individual defendant] enforced a much stricter set of standards and policies on 

Mr. Miller’s childcare facility” than on other facilities. ROA at 156.2

2

 In his reply brief, Mr. Miller alleges that defendant Pam Laferney is the 

regional programs supervisor for all childcare centers in the county, including the 

centers discussed in the amended complaint. He did not plead this fact in the 

amended complaint. We evaluate the sufficiency of a complaint based on its 

allegations. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995) (“[I]n 

determining whether to grant a motion to dismiss, the district court, and consequently 

this court, are limited to assessing the legal sufficiency of the allegations contained 

within the four corners of the complaint. Therefore, extraneous arguments in an 

appellate brief may not be relied upon to circumvent pleading defects.” (citation 

omitted)). Moreover, it is insufficient to allege a defendant was a supervisor without 

further alleging facts to establish the defendant’s personal participation. 

See Schneider, 717 F.3d at 767-68. 

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The amended complaint’s descriptions of the violations that allegedly occurred 

at the other childcare centers refer to “OKDHS” collectively. See, e.g., ROA at 157 

(“OKDHS determined”); ROA at 158 (“OKDHS received a complaint”); ROA at 159 

(“OKDHS observed”); ROA at 160 (“OKDHS substantiated”); ROA at 166 

(“OKDHS does not apply the same standards to all childcare centers”); id. (“OKDHS 

did not come back for a follow up visit”); ROA at 167 (“OKDHS did not require a 

witness to accompany Licensing staff”). It fails to connect the individual defendants 

to those alleged violations. See ROA at 160 (“La Petite’s daycare center’s Monthly 

Frequency plan was not changed . . . .”); ROA at 161 (“Katie Snider used different 

policies and standards when evaluating Mr. Miller’s childcare center than what was 

used evaluating white owned and/or operated daycare centers.”); ROA at 162 

(“La Petite daycare center was not put on a plan that could lead to licensure 

revocation.”); ROA at 167 (“Playtime (+) was not requested to have a conference 

with OKDHS . . . .”). 

The district court therefore did not err in concluding that Mr. Miller “again 

attempts to attribute the collective actions of the Oklahoma Department of Human 

Services to the Individual Defendants,” ROA at 337, or in holding that the amended 

complaint failed to state plausible claims against the individual defendants. 

D. “Class of One” 

Finally, Mr. Miller complains that the district court failed to address his “class 

of one” claim. As he acknowledges, he did not raise “class of one” in his amended 

complaint but in his response to the individual defendants’ motion to dismiss. 

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See Aplt. Opening Br. at 13 (stating Mr. Miller raised his “class of one” allegations 

“[o]n pages 5-11 of Doc. No. 24,” which was his response to the defendants’ motion 

to dismiss). Rather than pleading he was a class of one, his amended complaint 

alleged a violation of equal protection based on his “race, age, and gender.” ROA at 

171. The district court addressed that allegation. It was not required to address 

allegations not appearing in the amended complaint. 

III. CONCLUSION 

We affirm the district court’s judgment. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge 

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