Couser v. Gay, No. 19-3088

• Decision Date: 22 May 2020
• Docket Number: No. 19-3088
• Citation: 959 F.3d 1018
• Parties: Wendy COUSER, individually and as administrator of the Estate of Matthew Holmes, Plaintiff - Appellee, v. Chad GAY, in his individual and official capacity as Sheriff of Harvey County, Defendant - Appellant, and Chris Somers; Anthony Hawpe; Jason Achilles; Skyler Hinton; Jerry Montagne, in his individual and official capacity as Sheriff of McPherson County; City of Newton, Kansas ; Unknown Officers, from Newton Police Department; Unknown Officers, from McPherson County Sheriff’s Office; Unknown Officers, from Harvey County Sheriff’s Office; McPherson County Sheriff’s Office; Harvey County Sheriff’s Office, Defendants. Kansas Sheriff’s Association, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

959 F.3d 1018

Wendy COUSER, individually and as administrator of the Estate of Matthew Holmes, Plaintiff - Appellee,

v. Chad GAY, in his individual and official capacity as Sheriff of Harvey County, Defendant - Appellant,andChris Somers; Anthony Hawpe; Jason Achilles; Skyler Hinton; Jerry Montagne, in his individual and official capacity as Sheriff of McPherson County; City of Newton, Kansas ; Unknown Officers, from Newton Police Department; Unknown Officers, from McPherson County Sheriff’s Office; Unknown Officers, from Harvey County Sheriff’s Office; McPherson County Sheriff’s Office; Harvey County Sheriff’s Office, Defendants.Kansas Sheriff’s Association, Amicus Curiae.

No. 19-3088

United States Court of Appeals, Tenth Circuit.

FILED May 22, 2020

Toby Crouse, Crouse, LLC, Overland Park, Kansas, (David E. Rogers and Kelsey N. Frobisher, Foulston Siefkin LLP, Wichita, Kansas, with him on the briefs), for Defendant – Appellant.

Debra Loevy, Loevy & Loevy, Chicago, Illinois, for Plaintiff – Appellee.

Allen G. Glendenning and Michael C. Abbott, Watkins Calcara, CHTD, Great Bend, Kansas, filed an amicus curiae brief for Kansas Sheriffs’ Association on behalf of Defendant – Appellant.

Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.

MATHESON, Circuit Judge.

The district court found that Chad Gay, the Sheriff of Harvey County, Kansas, is a county official when performing law enforcement functions. It thus held that, unlike a state official, he is not entitled to Eleventh Amendment immunity when sued for damages in his official capacity under 42 U.S.C. § 1983. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual Background

In August 2017, Kansas law enforcement officers, after a traffic chase, pulled over Matthew Holmes for suspected vehicular burglary. The officers were from the City of Newton Police Department ("NPD"), McPherson County Sheriff’s Office ("MCSO"), and Harvey County Sheriff’s Office ("HCSO"). After Mr. Holmes stopped and exited the car, officers wrestled him to the ground. McPherson County Sheriff’s Deputy Chris Somers shot Mr. Holmes in the back. Mr. Holmes later died from the gunshot wound

.

B. Procedural Background

1. The Estate’s Complaint

In 2018, Mr. Holmes’s estate (the "Estate") sued, alleging constitutional violations under 42 U.S.C. § 1983 and a state law claim.¹ The complaint named as defendants the MCSO, HCSO, City of Newton, McPherson County, and Harvey County. It also named four officers in their individual capacities and Harvey County Sheriff Chad Gay and McPherson County Sheriff Jerry Montagne in both their individual and official capacities. The official capacity claims against the sheriffs sought to impose municipal liability for the alleged "policy and practice" of "failing to adequately train, supervise, control and discipline its officers." App. at 30. The Estate sought only damages.

2. District Court Order

The Defendants brought various motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Sheriff Gay and Sheriff Montagne moved to dismiss the official capacity claims against them, arguing they were state actors entitled to Eleventh Amendment immunity and that the complaint otherwise did not adequately allege municipal liability claims for failure to train or supervise.

The district court granted in part and denied in part the Defendants’ Rule 12(b)(6) motions. See Estate of Holmes by and through Couser v. Somers , 387 F. Supp. 3d 1233, 1264 (D. Kan. 2019). In particular, it denied each sheriff’s motion to dismiss based on Eleventh Amendment immunity because, "with respect to local law enforcement activities, sheriffs are not arms of the state but rather of the county that they serve." Id. at 1259. In reaching this conclusion, the district court addressed the four factors set forth in Steadfast Ins. Co. v. Agricultural Ins. Co. , 507 F.3d 1250, 1253 (10th Cir. 2007), to determine whether a defendant official is a state or local actor. It said:

(1) Kansas "state law characterizes a sheriff as a county officer when the sheriff is implementing law enforcement policies," Couser , 387 F. Supp. 3d at 1259 ;

(2) Sheriffs "have autonomy from state control" in "setting policy on the use of force," id. at 1260-61 ;

(3) "The sheriff’s annual budget is determined by the board of county commissioners and not the state," id. at 1261 ; and

(4) "Kansas law supports a finding that the sheriff deals primarily with local concerns," id.

The district court also denied Sheriff Gay’s motion to dismiss the municipal liability claim against him, but it granted Sheriff Montagne’s similar motion, thereby dismissing all pending claims against him. See id. at 1261-63 (explaining the Estate had stated a claim for failure-to-train or supervise against Sheriff Gay but not Sheriff Montagne).

Sheriff Gay timely appealed the Eleventh Amendment ruling.²

C. Legal Background

1. Eleventh Amendment Immunity for State Officers

Eleventh Amendment immunity applies not only to a state but also to an entity that is an arm of the state. See Ruiz v. McDonnell , 299 F.3d 1173, 1180 (10th Cir. 2002). Damage claims against state officials in their official capacity are deemed to be against the state entity the official represents and are therefore barred by the Eleventh Amendment.³ See Kentucky v. Graham , 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (Eleventh Amendment immunity is "in effect when State officials are sued for damages in their official capacity"); Brandon v. Holt , 469 U.S. 464, 471, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) ("[A] judgment against a public servant in his official capacity imposes liability on the entity that he represents ...." (quotations omitted)).

The Supreme Court "has repeatedly refused to extend [Eleventh Amendment] sovereign immunity to counties." Northern Ins. Co. of New York v. Chatham Cty. , 547 U.S. 189, 193, 126 S.Ct. 1689, 164 L.Ed.2d 367 (2006) ; accord Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (Eleventh Amendment immunity "does not extend to counties and similar municipal corporations"). It follows that county officers sued for damages in their official capacity are generally not entitled to Eleventh Amendment immunity.⁴

2. County or State Representative

Two sources of authority guide our analysis of whether a sheriff represents the county or state. First, in cases such as Mt. Healthy and Steadfast , the Supreme Court and the Tenth Circuit developed a framework to determine whether a defendant government entity is a (1) state entity or (2) a county, municipal, or other local government entity.⁵ Second, in McMillian v. Monroe County , 520 U.S. 781, 785-86, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997), the Supreme Court addressed whether an Alabama sheriff sued in his official capacity was a state or county official for purposes of a § 1983 claim.

These two sources overlap in this case. Courts use the Mt. Healthy/Steadfast factors to determine whether an entity is state or local. And they look to McMillian to inform whether a sheriff is a state or local official.

We describe both sources of authority below.

a. Mt. Healthy and Steadfast arm-of-the-state inquiry

i. Mt. Healthy

In Mt. Healthy , the Supreme Court addressed whether an Ohio school district was "an arm of the State partaking of the State’s Eleventh Amendment immunity," or "a municipal corporation ... to which the Eleventh Amendment does not extend." 429 U.S. at 280, 97 S.Ct. 568. The Mt. Healthy Court considered the school district’s (1) designation under state law as a "political subdivision"; (2) supervision by the State Board of Education; (3) significant state funding; and (4) ability to generate its own revenue by issuing bonds and levying taxes. Id. Although the second and third factors suggested the school board was an arm of the state, the Court determined that, "[o]n balance," the school board was "more like a county or city." Id. at 280-81, 97 S.Ct. 568.

The circuit courts have articulated a variety of formulas to flesh out the Mt. Healthy arm-of-the-state framework. See Martin A. Schwartz, Sec. 1983 Litig. Claims & Defenses § 8.10 (4th Edition 2020-1 Supp.). The Tenth Circuit did so in Steadfast .

ii. Steadfast

In Steadfast , we addressed whether the Grand River Dam Authority ("GRDA"), an Oklahoma nonprofit agency, was an arm of the state. 507 F.3d at 1256. We "look[ed] to four primary factors in determining whether a[ ] [defendant] constitutes an ‘arm of the state.’ " Id. at 1253 (quoting Mt. Healthy , 429 U.S. at 280, 97 S.Ct. 568 ); accord Ambus v. Granite Bd. of Educ. , 995 F.2d 992, 994 (10th Cir. 1993) (en banc) (explaining "[t]he [ Mt. Healthy ] Court ruled four factors to be relevant").⁶ These four factors are:

(1) "the character ascribed to the [defendant] under state law";

(2) "the autonomy accorded the [defendant] under state law;

(3) "the [defendant’s] finances"; and

(4) "whether the [defendant] in question is concerned primarily with local or state affairs."

Steadfast , 507 F.3d at 1253 (citations omitted).

We determined that each factor supported finding GRDA to be an arm of the state. Id. at 1252-56. First, GRDA’s foundational statute, other Oklahoma statutes, and the Oklahoma Supreme Court described GRDA as an agency of the state. Id. at 1253-54. Second, the state "exercise[d] significant supervision and control" over GRDA. Id. at 1254-55 (explaining Oklahoma law limited GRDA’s authority over its property, lands, employees, board of directors, and finances). Third, although GRDA could issue bonds, it lacked taxing authority and its revenue was designated as "state funds." Id. at 1255. Fourth, GRDA was "primarily concerned with state, rather than local, affairs" because it serviced 24 Oklahoma counties and its employees were "classified and treated as state employees." Id. at 1255-56. We thus held that "GRDA is an agency of the State of Oklahoma ... entitled to claim Eleventh Amendment immunity ...." Id. at...