Whitney v. State of N.M.

Decision Date19 May 1997
Docket NumberNo. 96-2198,96-2198
Citation113 F.3d 1170
Parties97 CJ C.A.R. 745 Louise WHITNEY, Plaintiff-Appellant, v. STATE OF NEW MEXICO; Charles Patrick, Employee of the State of New Mexico; John/Jane Doe, Unknown Employees of the State of New Mexico, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Louise Whitney, Roswell, New Mexico, pro se.

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.

MURPHY, Circuit Judge

Plaintiff Louise Whitney, appearing pro se and in forma pauperis, 1 appeals the district court's dismissal of her civil rights complaint. 2 Whitney brought her action against the State of New Mexico, Charles Patrick, and other unknown employees of the State of New Mexico under 42 U.S.C. § 1983. Whitney alleged the defendants violated her right to equal protection by discriminating against her and harassing her on the basis of her sex. Although the complaint is far from clear, reading this pro se complaint in a light most favorable to Whitney, she appears to allege that New Mexico, through its agent Patrick, harassed her and denied her a license to operate a day care facility because she is female. After she was denied a license, Whitney was apparently hired as administrator of the day care facility by the new owner, Louis Angelos. According to Whitney, Patrick continued to harass her during the entire term of her employment with Angelos. In addition, Whitney alleged that Patrick defamed her by "mak[ing] false remarks to Mr. Angelos insinuating that [Whitney] and Mr. Angelos were intimately involved."

The district court dismissed Whitney's complaint sua sponte, holding as follows: (1) Whitney's discrimination claim was frivolous under 28 U.S.C. § 1915(d) 3 because "[o]nly the New Mexico Health Department can grant or deny a license for a day care facility and a claim for damages against this department is the same as a claim for damages against the State itself," an entity immune from suit in federal court under the provisions of the Eleventh Amendment; (2) Whitney's allegation that Patrick sexually harassed her failed to state a claim because Whitney had not alleged sufficient state action to support her claim; and (3) Whitney's defamation claim against Patrick failed to state a § 1983 claim because Whitney did not allege any punitive action taken against her as a result of Patrick's remarks. Accordingly, the district court dismissed Whitney's discrimination claim without prejudice to her bringing the claim in state court and dismissed the remainder of Whitney's claims with prejudice. This court exercises jurisdiction over Whitney's appeal pursuant to 28 U.S.C. § 1291 and affirms in part and reverses in part.

"Mindful that pro se actions are held to a less stringent standard of review and that sua sponte dismissals are generally disfavored by the courts, we nonetheless allow a complaint to be dismissed under § 1915(d) 'if the plaintiff cannot make a rational argument on the law and facts in support of [her] claim.' " Yellen v. Cooper, 828 F.2d 1471, 1475 (10th Cir.1987) (quoting Van Sickle v. Holloway, 791 F.2d 1431, 1434 (10th Cir.1986)). This court reviews a district court dismissal under § 1915(d) for an abuse of discretion. Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir.1995).

Although the district court did not abuse its discretion in dismissing Whitney's discrimination claim against New Mexico and against Patrick in his official capacity, it erred in dismissing her discrimination claim against Patrick in his individual capacity. In addressing Whitney's discrimination claim, the district court stated as follows:

Plaintiff's discrimination claims are barred by the Eleventh Amendment to the Constitution, which extends the sovereign immunity enjoyed by the States to actions in federal court. See Griess v. Colorado, 841 F.2d 1042, 1043-44 (10th Cir.1988). Only the New Mexico Health Department can grant or deny a license for a day care facility, see N.M. Stat. Ann. §§ 24-1-(3)(I) and -5(a) (Michie Repl. Pamp.1994), and a claim for damages against this department is the same as a claim for damages against the State itself. See Neitzke v. Williams 490 U.S. 319, 327 [109 S.Ct. 1827, 1832 104 L.Ed.2d 338] (1989); Will v. Mich. Dep't of State Police, 491 U.S. 58 [109 S.Ct. 2304, 105 L.Ed.2d 45] (1989). Plaintiff's discrimination claims for damages will accordingly be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d).

Dist. Ct. Order at 2.

Whitney's claim against New Mexico is based on an "indisputedly meritless legal theory," Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989), because the State of New Mexico is clearly entitled to Eleventh Amendment immunity. Seminole Tribe of Florida v. Florida, --- U.S. ----, ----, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252 (1996). Dismissal of Whitney's damage claims against New Mexico is, therefore, proper under § 1915(d). See Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992) (upholding a dismissal under § 1915(d) on the basis of Eleventh Amendment immunity). Furthermore, because a suit against an individual in his official capacity is, in reality, a suit against the agency which the individual represents, Whitney's suit against Patrick in his official capacity as an agent for New Mexico is also barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 166-68, 105 S.Ct. 3099, 3105-07, 87 L.Ed.2d 114 (1985). The district court's § 1915(d) dismissal of Whitney's suit against Patrick in his official capacity was not an abuse of discretion. See Northington, 973 F.2d at 1521.

The district court did, however, abuse its discretion in dismissing on Eleventh Amendment grounds Whitney's discrimination claim against Patrick in his individual capacity. See Reliance Ins. Co. v. Mast Constr. Co., 84 F.3d 372, 375-76 (10th Cir.1996) (holding that abuse of discretion is established if district court's decision was based on an error of law). In generally dismissing Whitney's discrimination claims, the district court apparently assumed that because "[o]nly the New Mexico Health Department can grant or deny a license for a day care facility," only the State could be held responsible for the discriminatory denial of a license to operate a day care facility. The district court apparently further assumed that because New Mexico is immune under the Eleventh Amendment, Whitney's discrimination claims had to be dismissed in toto, even as against Patrick in his individual capacity.

Contrary to the decision of the district court, the Eleventh Amendment does not operate as a bar to Whitney's claim against Patrick in his individual capacity. This court has recognized that " § 1983 suit[s] against state officers in their individual capacities [are] not barred by the Eleventh Amendment, inasmuch as such suits proceed on the theory that when the officers act unconstitutionally, they are stripped of their official or representative character and are thus subjected to the consequences of their conduct." Houston v. Reich, 932 F.2d 883, 887 (10th Cir.1991); see also Duncan v. Gunter, 15 F.3d 989, 991-92 (10th Cir.1994) ("The Eleventh Amendment does not bar [individual-capacity suits] because state officers may be personally liable for their unconstitutional acts."). Accordingly, the district court's Eleventh Amendment dismissal of Whitney's discrimination suit against Patrick in his individual capacity was error.

In addition to dismissing Whitney's discrimination claims, the district court also dismissed her § 1983 harassment and defamation claims against Patrick. This court has held that a district court may dismiss sua sponte a pro se complaint for failure to state a claim. McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991). Such a dismissal is appropriate only where it is " 'patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing [her] an opportunity to amend [her] complaint would be futile." Id. (citation omitted); see also Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir.1991) ("[P]ro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings."). Nevertheless, when the "plaintiff is proceeding pro se, we must construe [her] pleadings liberally," applying a less stringent standard than is applicable to pleadings filed by lawyers. Gagan v. Norton, 35 F.3d 1473, 1474 n. 1 (10th Cir.1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995). This court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf. Hall, 935 F.2d at 1110.

With these precepts in mind, we conclude that the district court erred in dismissing Whitney's harassment claim against Patrick. Citing this court's opinion in Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir.1994), the district court recognized: "An allegation of sexual harassment is actionable under § 1983 as a violation of the Equal Protection Clause.... [H]owever, ... in order to establish the state action necessary to support a § 1983 claim, defendant ... had to be plaintiff's supervisor or in some other way exercise state authority over her." Nevertheless, the district court concluded that Whitney's harassment allegations did not support a claim under § 1983 because "[t]he only supervisory/authority relationships alleged in the complaint were between [Whitney] and private business owners." Dist. Ct. Op. at 3. We disagree.

Read liberally, Whitney's pro se complaint alleges Patrick harassed her while Patrick was deciding whether Whitney was entitled to a day care facility license. As the Supreme Court has noted, a person acts under color of state law if he "exercise[s] power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting ...

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