E.F.W. & A.T.B. v. St. Stephen's Indian High School

• Citation: 264 F.3d 1297
• Decision Date: 11 September 2001
• Docket Number: D,ELERTSON-JOHNSO,No. 00-8002,COOK-GAMBLER,00-8002
• Parties: (10th Cir. 2001) E.F.W.; and A.T.B., by and through her next friend, E.F.W., Plaintiffs-Appellants, v. ST. STEPHEN'S INDIAN HIGH SCHOOL; SHOSHONE AND ARAPAHOE TRIBAL SOCIAL SERVICES; R. KELLY PROCTOR; LISA, individually, and as an employee of Fremont Counseling Services; FREMONT COUNSELING SERVICES; THOMAS S. KENNAH; DARRELL L. LONE BEAR, SR.; SUSAN DONNELL, M.D.; and KELLYefendants-Appellees, and LOUIS MOSQUEA, BIA police officer; WILLIAM FALLS DOWN, Sergeant, BIA police officer; and ANUP SIDHU, M.D., Defendants
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1297

264 F.3d 1297 (10th Cir. 2001)

E.F.W.; and A.T.B., by and through her next friend, E.F.W., Plaintiffs-Appellants, v. ST. STEPHEN'S INDIAN HIGH SCHOOL; SHOSHONE AND ARAPAHOE TRIBAL SOCIAL SERVICES; R. KELLY PROCTOR; LISA COOK-GAMBLER, individually, and as an employee of Fremont Counseling Services; FREMONT COUNSELING SERVICES; THOMAS S. KENNAH; DARRELL L. LONE BEAR, SR.; SUSAN DONNELL, M.D.; and KELLY ELERTSON-JOHNSON, Defendants-Appellees and LOUIS MOSQUEA, BIA police officer; WILLIAM FALLS DOWN, Sergeant, BIA police officer; and ANUP SIDHU, M.D., Defendants.

No. 00-8002

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 11, 2001

Appeal from the United States District Court for the District of Wyoming

(D.C. No. 98-CV-283-J)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Donald J. Rissler of Central Wyoming Law Associates, P.C., Riverton, Wyoming (John R. Hursch of Central Wyoming Law Associates, P.C., Riverton, Wyoming; John W. Whitehead, The Rutherford Institute, Charlottesville, Virginia, with him on the brief) for Plaintiffs-Appellants.

Stuart R. Day of Williams, Porter, Day & Neville, P.C., Casper, Wyoming, for Defendants-Appellees St. Stephen's Indian High School, R. Kelly Proctor, and Kelly Elertson-Johnson.

John C. Schumacher of Law Office of John Schumacher, Fort Washakie, Wyoming (Richard M. Berley of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, with him on the brief), for Defendants-Appellees Shoshone and Arapahoe Tribal Social Services, Thomas Kennah, and Darrell Lone Bear, Sr.

Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming, for Defendants-Appellees Fremont Counseling Service and Lisa Cook-Gambler.

Nicholas Vassallo, Assistant United States Attorney (David D. Freudenthal, United States Attorney, with him on the brief), Cheyenne, Wyoming, for Defendant-Appellee Susan Donnell, M.D.

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and BROWN,^* District Judge.

SEYMOUR, Circuit Judge.

E.F.W. brought this civil rights action individually and on behalf of her minor daughter A.T.B. against Shoshone and Arapaho Tribal Social Services (SATSS), SATSS employees Thomas Kennah and Darrell Lone Bear, Saint Stephen's Indian Mission School, its social worker Kelly Elertson-Johnson and its principal R. Kelly Proctor, the Fremont Counseling Service and its employee Lisa Cook-Gambler, and Susan Donnell, Ph.D., a clinical psychologist employed by the Indian Health Service who practiced on the Wind River Indian Reservation in Wyoming. The complaint sought relief under 42 U.S.C. 1983 and 1985 for alleged constitutional violations arising from the removal of A.T.B. from her mother's custody and her placement in a psychological care facility as a suicide risk, and the filing and investigation of charges that the mother abused and/or neglected her daughter.

The district court granted the motion of Tribal defendants SATSS and Mssrs. Kennah and Lone Bear to dismiss for lack of jurisdiction, concluding that these defendants were protected by sovereign immunity. See E.F.W. v. Saint Stephen's Mission Indian High Sch., 51 F. Supp. 2d 1217, 1228 (D. Wyo. 1999). The court further held that to the extent relief was sought against defendants Kennah and Lone Bear individually, plaintiffs failed to state a claim for relief under section 1983 because they did not adequately allege action under color of state law, see id. at 1229, and they failed to state a claim under section 1985 because they did not allege class-based or racially discriminatory animus, id. at 1231. In a second order, the court granted defendant Donnell's motion for summary judgment and the remaining defendants' motions to dismiss on the ground that plaintiffs had failed to make the requisite showing that any of them acted under color of state law. Plaintiffs appeal and we affirm.

I Background

The facts in this action are essentially undisputed. Plaintiffs are enrolled members of the Northern Arapaho Tribe who live on the Wind River Indian Reservation in Wyoming. A.T.B. attended St. Stephen's High School, a private school founded by the Episcopal Church and located on the Reservation. In the fall of 1996, A.T.B. attended counseling sessions at the school with Ms. Elertson-Johnson, a social worker employed by the school. During this time A.T.B.'s boyfriend, who was also a student at the high school, was killed in an automobile accident. Dr. Donnell participated in a grief counseling session with the students, where she and Ms. Elertson-Johnson discussed concerns about A.T.B. Ms. Elertson-Johnson told Dr. Donnell that A.T.B. had demonstrated potentially suicidal behavior, including self-mutilation and depression, and that A.T.B. had reported physical and emotional abuse by her mother and another family member.

On November 12, 1996, Dr. Donnell received a call from Lisa Cook-Gambler, a professional counselor with Fremont Counseling Services. Fremont is a private mental health care facility that "covered" for Indian Health Service, a federal agency, during holidays and after hours. Ms. Cook-Gambler said that she had been called to St. Stephen's the previous day, a federal holiday, on an emergency basis because A.T.B. had come to school with self-inflicted wounds on her arms and face. Ms. Cook-Gambler had called the Tribal police, the Tribal prosecutor and SATSS, and expected that A.T.B. would be placed in protective custody.

Mr. Kennah, a social worker with SATSS, took A.T.B. into protective custody on November 13 and made arrangements to place her in Pine Ridge Hospital, a mental health care facility, for emergency shelter care. A.T.B. was transported voluntarily to Pine Ridge by Tribal police officers. Dr. Donnell called Pine Ridge and referred A.T.B. for admission as a suicide risk so that her treatment there would be paid through Indian Health Service. On November 14, Mr. Kennah filed a petition with the Tribal court stating that A.T.B. had been taken into protective custody the previous day and placed at Pine Ridge because she had been assessed as suicidal. Mr. Kennah further stated that allegations of physical and emotional abuse were currently under investigation, and requested an emergency custody hearing and a protection order. The Tribal court issued an order the following day appointing Wind River Legal Services as guardian ad litem for A.T.B. The abuse and neglect charges were subsequently adjudicated in tribal court.

During the relevant time, the Eastern Shoshone and Northern Arapaho Tribes and the State of Wyoming were parties to an agreement for the provision of social services to the children of the Wind River Reservation at a level at least commensurate with services provided by the state to children outside the Reservation (the Intergovernmental Agreement). SATSS was the Tribal agency established by the tribes to supply these services. Under the Agreement, the state furnished funds to SATSS and SATSS provided child protective services and other family services set out in the agreement to Reservation children. As discussed in detail below, this Agreement is the linchpin of plaintiffs' arguments that the Tribal defendants are not entitled to sovereign immunity and that the conduct at issue occurred under color of state law for purposes of section 1983.¹

II Sovereign Immunity

SATSS, Mr. Kennah and his supervisor, Mr. Lone Bear, filed a motion to dismiss for lack of jurisdiction, arguing that they are entitled to Tribal sovereign immunity. The district court agreed, ruling that SATSS as a Tribal agency and Mssrs. Kennah and Lone Bear in their official capacities were protected from suit. The court rejected plaintiffs' argument that the Tribes became a quasi-state agency and thereby lost their sovereign immunity from suit by entering into the Intergovernmental Agreement. See E.F.W., 51 F. Supp. at 1227-28.

On appeal, plaintiffs renew their contention that the Tribal defendants waived their sovereign immunity by entering into the Agreement, arguing that these defendants became state actors because the Agreement incorporates state law, provides for state training, and allows the state to inspect and review SATSS case records. Plaintiffs also argue that because Mr. Kennah did not obtain the Tribal emergency custody order until after A.T.B. had already been removed from her mother's custody and taken to Pine Ridge, the only authority supporting this action was a state law provision. We agree with the district court that the undisputed facts, including the provisions of the agreement upon which plaintiffs rely, do not establish a waiver of sovereign immunity.

Tribal sovereign immunity is a matter of subject matter jurisdiction, see Fletcher v. United States, 116 F.3d 1315, 1323-24 (10th Cir. 1997), which may be challenged by a motion to dismiss under Fed. R. Civ. P. 12 (b)(1), see Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). Such motions may take one of two forms. First, a party may make a facial challenge to the plaintiff's allegations concerning subject matter jurisdiction, thereby questioning the sufficiency of the complaint. Id. at 1002. In addressing a facial attack, the district court must accept the allegations in the complaint as true. Id. "Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends." Id. at 1003. In addressing a factual attack, the court does not "presume the truthfulness of the complaint's factual allegations," but "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id. In this case, the district court construed defendants' Rule 12(b)(1) motion as raising a facial challenge to the complaint's factual allegations. See E.F.W., 51 F. Supp. 2d at 1221. Accordingly, the court presumed the allegations in the amended complaint and the...