FILED

United States Court of Appeals

Tenth Circuit

May 5, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MISTY VANZANDT; S.V., by and

through her mother and next friend,

Misty VanZandt,

Plaintiffs - Appellees,

v.

OKLAHOMA DEPARTMENT OF

HUMAN SERVICES, State of

Oklahoma ex rel; JOHN DOE, and

JANE DOE, 1 through 10, whose

identities are not known to the

plaintiffs at this time, 

 Defendants, 

 and 

HOWARD H. HENDRICK ,

individually and in his official

capacity as the Director of the

Oklahoma Department of Human

Services; MARY WILLIAMS,

individually and in her capacity as a

supervisor at the Sequoyah County

Branch of the DHS; RUBY JAMES,

individually and in her capacity as a

case worker at the Sequoyah County

Branch of the DHS; JOY WALKER,

individually and in her capacity as the

director of the Sequoyah County DHS;

JAN POLASEK, individually and in

her capacity as a case worker at the

Sequoyah County Branch of the DHS,

Defendants - Appellants.

No. 06-6377

(D.Ct. No. CIV-06-0809-F)

(W. D. Okla.)
*

 This order and judgment is not binding precedent except under the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.

**The Honorable Clarence A. Brimmer, United States District Judge for the

District of Wyoming, sitting by designation.

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ORDER AND JUDGMENT*

Before HARTZ and GORSUCH, Circuit Judges, and BRIMMER,

** District

Judge.

I. BACKGROUND

Plaintiffs-Appellees Misty VanZandt and S.V. are mother and daughter. 

S.V. is a four-year-old girl who has allegedly been sexually assaulted many times

in the course of her young life. In an effort to protect her child from these sexual

encounters with various family members, Ms. VanZandt sought protection from

Oklahoma’s Department of Human Services (DHS). Throughout the course of her

dealings with DHS, Ms. VanZandt became angered with what she perceived as a

lack of protection for her daughter. Ultimately, Ms. VanZandt and S.V. fled to

Texas to protect S.V. from her abusers. While Ms. VanZandt and S.V. were

living in Texas, certain Oklahoma DHS employees allegedly made deliberate

misstatements and submitted a false affidavit to procure an arrest warrant for Ms.

VanZandt on felony child abuse charges. Ms. VanZandt was arrested on those
1

Plaintiffs complaint alleges two claims for relief pursuant to 42 U.S.C.

§1983. Count One alleges violations of Plaintiffs’ First, Fourth and Fourteenth

Amendment rights by Defendants James, Williams, Walker and Polasek. Count

Two alleges Fourth and Fourteenth Amendment violations by DHS, Hendrick,

Williams and Walker for failing to supervise and train employees under their

control. The complaint alleges two factual bases to support both §1983 counts. 

First, the complaint alleges constitutional violations for events which culminated

in the filing of felony child abuse charges against Ms. VanZandt. Second, the

complaint alleges constitutional violations for events related to the care and

custody of S.V.

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charges. The charges, however, were later dismissed. 

On July 28, 2006, Ms. VanZandt and S.V. filed suit in the United States

District Court for the Western District of Oklahoma against the State of

Oklahoma Department of Human Services, five named employees of DHS in their

individual and official capacities, and ten unnamed individuals. Plaintiffs seek

damages and other relief under 42 U.S.C. §1983 for alleged violations of their

constitutional rights and pursuant to various state law tort claims.1

The Oklahoma Department of Human Services and the five named DHS

employees, Howard Hendrick, Mary Williams, Ruby James, Joy Walker and Jan

Polasek filed a motion to dismiss Plaintiffs’ complaint pursuant to Federal Rule

of Civil Procedure 12(b)(1) and 12(b)(6). The DHS Defendants contend the

complaint should be dismissed because Plaintiffs’ action is barred by the Eleventh

Amendment and that the complaint fails to state a claim for relief. The district

court ruled on Defendants’ motion to dismiss on November 20, 2006. The district

court granted the motion to dismiss in part, and denied the motion in part. The
2

The district court dismissed Plaintiffs’ Count One claim for alleged First

Amendment violations.

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court denied the motion to dismiss Plaintiffs’ claims against the individual

Defendants pertaining to the events which culminated in the filing of felony child

abuse charges against Ms. VanZandt. The district court stated that actionable

Fourth and Fourteenth Amendment violations had been pled by the Plaintiffs, and

as a result, qualified immunity was inappropriate.2

Defendants Hendrick, Williams, Walker, James and Polasek now appeal the

district court’s partial denial of their motion to dismiss and ask the Court to

consider whether the district court erred in not granting them qualified immunity. 

We affirm the district court in part, and reverse in part, and instruct that

Plaintiffs’ claims in Count One, be dismissed as to Defendants Williams, Walker

and Polasek for failure to state a claim.

II. DISCUSSION

A. Scope of the Appeal

Plaintiffs’ complaint alleges two claims for relief under 42 U.S.C. § 1983. 

Count One alleges that Defendants James, Williams, Walker and Polasek

personally violated Plaintiffs’ First, Fourth and Fourteenth Amendment rights. 

Count Two alleges that Defendants DHS, Hendrick, Williams and Walker failed

to supervise and train employees under their control and thereby violated

Plaintiffs’ Fourth and Fourteenth Amendment rights. 
3

The district court stated that the complaint “suggests a pattern of

misconduct, and it alleges that the supervisory defendants were deliberate in their

actions because these defendants knew the allegations against Misty VanZandt

‘were false and contrived to protect certain persons in Sequoyah County.’” (ROA

93 (citing complaint ¶25)). The district court stated these allegations were

sufficient in light of Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir.

(continued...)

-5-

Defendants failed to present argument or authority to the Court in their

opening brief concerning Count Two (supervisory liability). This Court has on

several occasions stated “an appellant’s opening brief must identify [his or her]

contentions and the reasons for them, with citations to the authorities and parts of

the record on which the appellant relies.” Bronson v. Swensen, 500 F.3d 1099,

1104 (10th Cir. 2007) (citing Fed. R. App. P. 28(a)(9)(a)). Considering this

requirement, we have routinely declined to consider arguments that are not raised,

or are inadequately presented in an appellant’s opening brief. Bronson, 500 F.3d

at 1104. Therefore, “the omission of an issue in an opening brief generally

forfeits appellate consideration of that issue.” Id.

Defendants-Appellants’ opening brief broadly states the issue as whether

the district court erred in partially denying Defendants’ motion to dismiss, which

includes the question of whether they are entitled to qualified immunity. Unlike

Count One, where Defendants-Appellants argue that various comments and

statements made in the course of the investigation do not rise to the level of a

constitutional violation for purposes of qualified immunity, their brief is void of

any argument or reference to supervisor liability.3

 Not one time did Defendants-
3

(...continued)

1988)(stating that allegations that a sheriff failed to properly supervise his

deputies, that he was deliberately indifferent to plaintiff’s constitutional rights,

and that at least three of his deputies participated in the assault, were held

sufficient to allege § 1983 claims against the sheriff in his individual capacity for

failure to train and supervise deputies). 

4

Appellants’ opening brief describes Howard Hendrick as the state

“Director of DHS” while Mary Williams is referred to as the “Sequoyah County

Director.” (Appellants’ Opening Brief at 3.) The brief gives no supervisory title

to Joy Walker. 

-6-

Appellants argue with regard to training or supervision, or that Count Two was

improperly pled. In fact, the only time any briefing can possibly be construed as

referencing supervisory liability is Defendants-Appellants’ reference to the titles

of each individual Defendant.4

 Defendants-Appellants’ meager and cursory

references, without specifying their contentions, and without supporting analysis

and case law, fail to constitute the briefing that is necessary to avoid application

of the forfeiture doctrine. Bronson, 500 F.3d at 1105. Therefore, based on the

Defendants-Appellants’ failure to properly raise the issue of supervisory liability

in their opening brief, we have no choice but to conclude that this issue has been

effectively waived. This discussion will, therefore, proceed only with regard to

Count One of Plaintiffs’ complaint.

B. Standard of Review

We review a district court’s denial of qualified immunity de novo, applying

the same standard used by the district court. Benefield v. McDowall, 241 F.3d

1267, 1270 (10th Cir. 2001). At the time the district court partially denied the
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motion to dismiss, many courts, including the district court, embraced a liberal

pleading requirement. This liberal standard held, “a complaint should not be

dismissed 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.” Robbins v. Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008) (quoting

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

containing only conclusory allegations could withstand a motion to dismiss if

there was a possibility that a fact not stated in the complaint could render the

complaint sufficient. Robbins, 519 F.3d at 1246. 

The standard for such a motion to dismiss, however, has changed since the

district court’s November 20, 2006 order. In May 2007, the United States

Supreme Court handed down Bell Atlantic Corp. v. Twombly, — U.S. —, 127

S.Ct. 1955 (2007). The Twombly case announced a new (or clarified) standard

for motions to dismiss, and stated that a complaint must contain enough factual

allegations “to state a claim to relief that is plausible on its face.” Robbins, 519

F.3d at 1247 (quoting Twombly, 127 S.Ct. at 1974). Thus, Twombly rejected the

“no set of facts” standard that had been the motion to dismiss benchmark for

many years. 127 S.Ct. at 1974. 

Now, the Plaintiff has the burden to frame a “complaint with enough

factual matter (taken as true) to suggest” that he or she is entitled to relief. 

Robbins, 519 F.3d at 1247 (quoting Twombly, 127 S.Ct. at 1965). In order for a
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complaint to satisfy this new standard, a plaintiff must do more than generally

allege a wide swath of conduct. Robbins, 519 F.3d at 1247. A plaintiff must

allege sufficient facts to “nudge[] their claims across the line from conceivable to

plausible.” Id. (quoting Twombly, 127 S.Ct. at 1974).

This Court, in Robbins, stated that plausibility serves two purposes: (1) to

weed out claims that, absent additional pleadings, do not have a reasonable

prospect of success, and (2) to inform the defendants of the actual grounds of the

claim against them. 519 F.3d at 1248. A court, therefore, must review a

complaint with these purposes in mind. Not surprisingly, the Twombly Court is

critical of complaints that do not mention specific times, places or people

involved. Id. (citing Twombly, 127 S.Ct. at 1971 n.10). 

This Court also acknowledged that the degree of specificity necessary to

establish plausibility and fair notice is dependant on the context of the case

involved. Id. To “nudge their claims across the line from conceivable to

plausible,” in the context of a case involving qualified immunity, plaintiffs must

allege facts sufficient to show that the defendants violated their constitutional

rights, and that those rights were clearly established at the time. Id. at 1249. 

This Court stated, “this requires enough allegations to give the defendants notice

of the theory under which their claim is made.” Id.

Although we apply the same standard in evaluating dismissals in qualified

immunity cases as to dismissals generally, complaints in § 1983 cases against
5

The complaint alleges that Ruby James’ affidavit included the following

deliberate misstatements:

(1) No physical evidence has ever been confirmed on the allegations of

sexual abuse;

(2) No allegations of domestic violence has ever been made to DHS or law

(continued...)

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individual government actors pose a greater likelihood of failures in notice and

plausibility because they typically include complex claims against multiple

defendants. Id. The Twombly standard has greater “bite” in these contexts,

“reflecting the special interest in resolving the affirmative defense of qualified

immunity ‘at the earliest stage of a litigation.’” Id, (citations omitted). Therefore,

in § 1983 cases, a plaintiff must “make clear exactly who is alleged to have done

what to whom, to provide each individual with fair notice as to the basis of the

claims against him or her . . . .” Id. at 1250. Of course, neither Twombly nor

Robbins requires, and we do not demand, the sort of specificity required in claims

subject to Fed. R. Civ. P. 9(b). 

C. Defendant Ruby James

With regard to Ruby James, the complaint states, “[i]n an effort to procure

felony child abuse charges against Misty, defendant James submitted a false

affidavit for use as a statement of ‘probable cause’ to Special District Court Judge

Dennis Sprouse in Sallisaw, Oklahoma on May 5, 2003.” (ROA 16.) The

complaint then recites several alleged fabricated statements that were contained in

the affidavit, and produces corroborating evidence of these statements’ falsity.5
5

(...continued)

enforcement; and

(3) S.V. has never indicated that the father or grandfather has ever sexually

assaulted her.

The complaint goes on to corroborate the falsity of these statements with names

and dates of doctors who confirmed sexual abuse against S.V. The complaint also

alleges that Ms. VanZandt had reported incidents of domestic abuse to DHS. 

Finally, the complaint details counseling sessions where S.V., on two different

occasions to two different counselors, admitted to being sexually abused by

family members, and how both counselors reported these allegations to DHS.

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Finally, the complaint states: “[a]s a result of the false affidavit submitted by

defendant James, Misty VanZandt was charged with felony child abuse.” (ROA

17.) 

These allegations are more than sufficient under the Twombly pleading

requirement. First, the complaint gives Ms. James notice that she is the specific

defendant at issue by directly naming her. Second, the complaint alleges specific

actions Ms. James took against Ms. VanZandt. Third, the complaint alleges a

specific date, and purpose for the submission of the false affidavit. Fourth, the

complaint contains a detailed factual basis for why Ms. James’ statements were

indeed false. Finally, the complaint links Ms. James’ actions to the end result,

which was Ms. VanZandt’s arrest. As a result of these detailed factual averments,

the Plaintiff has nudged this claim across the line from conceivable to plausible,

and has provided sufficient notice of who is alleged to have done what to whom. 

See id, at 1249-50 (describing the requirements for plausibility and notice

pleading under the Twombly standard).
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In addition to notice and plausibility, when a qualified immunity challenge

is made at the motion to dismiss stage, there are two distinct inquiries: (1)

whether the facts, taken in a light most favorable to the plaintiff, set forth a

constitutional violation; and (2) whether the violation was clearly established at

the time the conduct took place. See Saucier v. Katz, 533 U.S. 194, 201 (2001). 

If both of these inquiries can be answered in the affirmative, then the Defendants

are not entitled to qualified immunity. Id.

The first question in the present case is whether the alleged intentional or

reckless falsification of an affidavit, submitted for the purpose of producing

probable cause for an arrest warrant is a constitutional violation. The second

question is whether this conduct was clearly established in May 2003. This Court

has clearly spoken to both questions. First, this Court in Pierce v. Gilchrist, held

that knowingly or recklessly falsifying or omitting evidence, for the purpose of

producing information for an arrest warrant, violates a person’s Fourth and

Fourteenth Amendment rights with “obvious clarity.” 359 F.3d 1279, 1285-93,

1300 (10th Cir. 2004). Second, the Pierce Court, in analyzing whether this right

was clearly established stated, “[n]o one could doubt that the prohibition on

falsification or omission of evidence, knowingly or with reckless disregard for the

truth, was firmly established as of 1986, in the context of information supplied to

support a warrant for arrest.” Id. at 1298. As both prongs of the test for

qualified immunity have been clearly satisfied, the district court was correct in
6

The other “Count One Defendants” are Mary Williams, Joy Walker and

Jan Polasek. 

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denying qualified immunity to Ruby James under Count One.

D. Other “Count One” Defendants

The complaint, concerning the other Count One Defendants, however, is

less clear regarding “who is alleged to have done what to whom.”6

 Robbins, 519

F.3d at 1250. The complaint only broadly alleges, “[t]he Defendants assigned to

the Sequoyah County office of DHS, mentioned above, and others in concert with

them, made deliberate misstatements which caused the plaintiff Misty VanZandt

to be charged with a felony. . . .” (ROA 17.) 

When Plaintiffs use the phrase “the Defendants assigned to the Sequoyah

County office of DHS,” presumably they are referring to Defendants Joy Walker,

Jan Polasek and Mary Williams, as Howard Hendrick is not employed in the

Sequoyah County office and Ruby James has already been separately and

individually named. (ROA 17.) This Court, however, does not need to speculate

as to the identity of the Defendants these allegations are levied against as “the

burden rests on the plaintiffs to provide fair notice of the grounds for the claims

made against each of the defendants.” Id.

To carry their burden, plaintiffs under the Twombly standard must do more

than generally use the collective term “defendants.” Id. This Court, in Robbins,

placed great importance on the need for a plaintiff to differentiate between the
7

The Robbins Court cited Attuahene v. City of Hartford, 10 F.App’x 33, 34

(2d Cir., 2001) (unpublished); Medina v. Bauer, 2004 WL 136636, *6 (S.D.N.Y.,

Jan. 27, 2004) (unpublished); and Lane v. Capital Acquisitions and Mgmt. Co.,

2006 WL 4590705, *5 (S.D. Fla., April 14, 2006) (unpublished) in support of its

proposition that failing to differentiate among the defendants is proper grounds to

dismiss a complaint for failing to provide fair notice under Rule 8. Robbins, 519

F. 3d at 1250. 

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actions of each individual defendant and the actions of the group as a whole.7 Id.

This is because the purposes of plausibility, notice and gatekeeping, are best

served by requiring plaintiffs to directly link an actual individual with the alleged

improper conduct. When a plaintiff “fails to isolate the allegedly unconstitutional

acts of each defendant,” adequate notice is not provided to each defendant. Id. 

In the present case, Plaintiffs, with respect to the “other Count One

Defendants,” failed to meet the minimal pleading requirements of notice and

plausibility. By stating “the defendants assigned to the Sequoyah County office”

Plaintiffs fail to individualize each Defendant’s alleged misconduct from the

Defendants as a collective group. As multiple governmental actors are involved

in this §1983 action, notice and plausibility are best served by specifically stating

“who is alleged to have done what to whom.” See id. Because Plaintiffs have

failed to meet these minimal notice pleading requirements, further analysis of

qualified immunity and plausibility is not needed. As such, the district court

erred in not granting qualified immunity to Defendants Joy Walker, Mary

Williams, and Jan Polasek under Count One of the complaint. 
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III. CONCLUSION

For these reasons the district court’s partial denial of qualified immunity is

AFFIRMED in part, and REVERSED in part, and we REMAND with

instructions to dismiss Count One of the complaint as to Mary Williams, Joy

Walker and Jan Polasek, without prejudice, for failure to state a claim on which

relief can be granted. 

Entered by the Court:

CLARENCE A. BRIMMER

United States District Judge