                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    KEVIN A. DEHAAN, individually
    and as next friend of Rebecca Anne
    DeHaan, his daughter,

                Plaintiff-Appellant,

    v.                                                   No. 00-2080
                                                (D.C. No. CIV-98-1151-M/DJS)
    UNITED STATES OF AMERICA,                              (D. N.M.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , ANDERSON , and HENRY , Circuit Judges.



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

unanimously to grant 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

ordered 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff filed an action against the United States under the Federal Tort

Claims Act, alleging liability under several tort theories for the United States Air

Force’s part in prohibiting plaintiff from exercising his custodial parental rights,

as determined by a New Mexico state court. The facts and circumstances leading

up to this action are not relevant to this appeal, so we will not detail them here.

Suffice it to say that plaintiff filed the action seeking damages under the Federal

Tort Claims Act (FTCA), later asserted a constitutional tort theory, and took this

appeal when the district court granted the United States summary judgment on the

FTCA claims without allowing plaintiff to amend his complaint to add the

constitutional tort claim. We affirm.

      After plaintiff filed his complaint, the government moved to dismiss the

action based on the discretionary function exception to the FTCA, and the district

court notified the parties that it would consider the matter on summary judgment.

After plaintiff’s first attorney filed a response to the motion to dismiss, he

withdrew from the case, and another attorney appeared on behalf of plaintiff. The

second attorney filed a supplemental response to the motion to dismiss, arguing

liability under a constitutional tort theory, a claim that was not advanced in the

complaint. He argued that the United States Air Force had violated plaintiff’s

Fourteenth Amendment rights by depriving him of the companionship of his

daughter without notice or hearing. Plaintiff did not file a formal motion to


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amend the complaint, but in the last sentence of his supplemental response to

the motion to dismiss, he requested “[i]n the alternative, . . . leave to amend the

complaint to include claims under the Fifth and Fourteenth Amendments.”

App. at 119.

       The district court did not specifically address plaintiff’s request as a motion

to amend. It granted summary judgment in favor of the United States based on

the discretionary function exception to the FTCA, but acknowledged and

discounted plaintiff’s constitutional claims by stating:

              DeHaan’s arguments related to a deprivation of Fourteenth
       Amendment rights are also completely misplaced. He has pled no
       claim of a constitutional violation and cannot do so where he alleges
       jurisdiction pursuant to the Federal Tort Claims Act. Again, no set
       of facts could provide DeHaan with a claim against the United States
       for violation of constitutional rights, and Defendant is entitled to
       a dismissal.

App. at 134.

       Although plaintiff states in his brief on appeal that the district court erred

in failing to specifically address his request for leave to amend, the crux of his

argument on appeal is that the district court erred in its “   de facto ” denial of his

request to amend. Appellant’s Br. at 5. Consistent with plaintiff’s argument,

we read the district court’s order to have denied the request for leave to amend

because amendment would have been futile.           See Foman v. Davis , 371 U.S. 178,

182 (1962) (holding that leave to amend need not be freely given when


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amendment would be futile). Although generally we review the refusal of leave

to amend for an abuse of discretion, “[t]he futility question is functionally

equivalent to the question whether a complaint may be dismissed for failure to

state a claim, a question this court reviews     de novo. ” Gohier v. Enright , 186 F.3d

1216, 1218 (10th Cir. 1999).     “A proposed amendment is futile if the complaint,

as amended, would be subject to dismissal.”

       Here, plaintiff submitted no amended complaint, so the district court had

only the statement of plaintiff’s new legal theory in his supplemental response on

which to base its futility determination.      Cf. D. N.M. Rule 7.1 (motion must state

grounds with particularity); 7.5 (movant must submit supporting brief); 15.1

(proposed amendment must accompany motion to amend pleading). For purposes

of review, we also look to plaintiff’s constitutional tort argument in his

supplemental response as his statement of the particular grounds for his proposed

amendment. We agree with the district court that plaintiff’s constitutional tort

claim, as stated in his supplemental response, would have been subject to

dismissal in an amended complaint. Plaintiff suggested no jurisdictional basis for

asserting constitutional tort claims against the United States, which is immune

from suit unless it waives its sovereign immunity,      Fent v. Oklahoma Water Res.

Bd. , No. 99-6188, 2000 WL 1846240, at *2 (10th Cir. Dec. 18, 2000). Further,

plaintiff named only the United States as defendant in the action. He did not


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allege claims against any person in their individual capacity, thus precluding

a Bivens -type action. See National Commodity & Barter Ass’n, Nat’l Commodity

Exch. v. Gibbs , 886 F.2d 1240, 1247 (10th Cir. 1989). Consequently, we

conclude that the district court did not abuse its discretion in refusing plaintiff’s

request for leave to amend his complaint. AFFIRMED.



                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




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