                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       October 13, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
GREGORY JOHNS HYATT,

      Plaintiff - Appellant,

v.                                                        No. 16-6029
                                                   (D.C. No. 5:14-CV-00511-D)
BOARD OF REGENTS OF OKLAHOMA                              (W.D. Okla.)
COLLEGES, ex rel. SOUTHWESTERN
OKLAHOMA STATE UNIVERSITY;
THE OFFICE OF JUVENILE AFFAIRS;
ROBERT E. CHRISTIAN, in his
individual capacity; JANA WAFFLE, in
her individual capacity; JOHN DOES, in
their individual capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Gregory Johns Hyatt appeals from the district court’s order dismissing his

claims under 42 U.S.C. § 1983 and Oklahoma state law against various defendants

whom he contends are responsible for the abuse he suffered while committed to the


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
custody and supervision of the Oklahoma Office of Juvenile Affairs (“OJA”).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Background

      When Mr. Hyatt was still a minor, the OJA placed him in a rehabilitation

program run by Southwestern Oklahoma State University (“SWOSU”).

For purposes of this appeal, we accept Mr. Hyatt’s contention that his constitutional

rights were violated when a security officer at the program used threats to coerce him

into a sexual relationship, provided him with alcohol and marijuana, and on one

occasion removed him from the program grounds, drove recklessly while he was in

her car, and took pictures of him naked.

      In his second amended complaint, Mr. Hyatt asserted a § 1983 claim against

Robert E. Christian, the executive director of the OJA, in his individual capacity on a

theory of supervisory liability. He also asserted a state-law claim against the OJA

and SWOSU for negligent supervision.

      The district court dismissed the complaint for failure to state a claim. With

respect to the § 1983 claim, the court found Mr. Hyatt failed to allege facts that

would show Mr. Christian caused the constitutional violation or was deliberately

indifferent to the risk of such a violation occurring. With respect to the claim against

the OJA and SWOSU, the court found Mr. Hyatt failed to allege facts that would

show there was any reason to believe the security officer had a propensity to engage

in such conduct; therefore, he did not state a plausible claim for negligent

supervision.

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II. Analysis

       We review de novo the district court’s dismissal of a complaint under

Federal Rule of Civil Procedure 12(b)(6). Khalik v. United Air Lines, 671 F.3d 1188,

1190 (10th Cir. 2012). “[A] complaint must contain enough allegations of fact, taken

as true, to state a claim for relief that is plausible on its face.” Id. (internal quotation

marks omitted). We disregard legal conclusions and conclusory statements to

determine whether the factual allegations plausibly suggest a basis for holding a

defendant liable. Id. at 1191.

A. Appellate Jurisdiction

       As a threshold matter, we address our jurisdiction over this appeal. This court

raised the issue sua sponte because it appeared Mr. Hyatt had attempted to create a

final judgment by dismissing without prejudice his claims against the security officer.

See Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d 1234, 1238 (10th Cir. 2006)

(“Our general rule is that a party cannot obtain appellate jurisdiction where the

district court has dismissed at least one claim without prejudice because the case has

not been fully disposed of in the lower court.”). In response, Mr. Hyatt argues that

since the claims against the security officer had already been dismissed and refiled

pursuant to Oklahoma’s savings statute after the initial statute of limitations had run,

see Okla. Stat. tit. 12, § 100, they were not subject to further proceedings in federal

or state court, and therefore the district court’s order dismissing his other claims is

final and appealable. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275

(10th Cir. 2001); see also Hull v. Rich, 854 P.2d 903, 904 (Okla. 1993) (stating that

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the savings statute “affords one and only one refiling if a case is dismissed after

limitations has run” (internal quotation marks omitted)). The defendants agree with

Mr. Hyatt’s contention that, under the circumstances of the case, the dismissal of the

claims against the security officer was effectively a dismissal with prejudice.

      We agree that we have jurisdiction. The incidents giving rise to this action

allegedly occurred from November 3, 2011 through January 31, 2012. Mr. Hyatt’s

§ 1983 claim was subject to a two-year statute of limitations. See Kripp v. Luton,

466 F.3d 1171, 1174 (10th Cir. 2006) (applying Oklahoma’s two-year statute of

limitations in a § 1983 action). The case was first filed in federal court on

November 26, 2012, and dismissed without prejudice on April 10, 2013. The case

was then refiled in state court on April 9, 2014, pursuant to Oklahoma’s savings

statute, before it was removed back to federal court. Mr. Hyatt filed a notice

voluntarily dismissing the security officer as a defendant on January 13, 2016. The

following day, the district court entered its judgment, stating that the action against

the security officer is dismissed without prejudice. Nonetheless, because the statute

of limitations had already run when the case was refiled and the savings statute

allows only one refiling, the district court’s judgment finally disposed of the case and

is therefore appealable. See Jackson, 462 F.3d at 1238.

B. Supervisory Liability Claim

      Mr. Hyatt argues that the complaint alleges sufficient facts to support a

supervisory liability claim against Mr. Christian.



                                            4
      Under § 1983, supervisors are not vicariously liable for the misconduct of their

subordinates but may be held liable only “for their own culpable involvement in the

violation of a person’s constitutional rights.” Serna v. Colo. Dep’t of Corr., 455 F.3d

1146, 1151 (10th Cir. 2006). To succeed on a supervisory liability claim, a plaintiff

must show “(1) the defendant promulgated, created, implemented or possessed

responsibility for the continued operation of a policy that (2) caused the complained

of constitutional harm, and (3) acted with the state of mind required to establish the

alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th

Cir. 2010). “[A] plaintiff must show an affirmative link between the supervisor and

the violation, namely the active participation or acquiescence of the supervisor in the

constitutional violation by the subordinates.” Serna, 455 F.3d at 1151 (internal

quotation marks omitted). Mere negligence is insufficient to establish liability;

rather, a supervisor must have acted “knowingly or with deliberate indifference that a

constitutional violation would occur.” Id. (internal quotation marks omitted).

      The complaint vaguely alleges that Mr. Christian had “ultimate responsibility

for OJA program policies and procedures . . . and supervision of OJA program

personnel”; that he “failed to ensure the . . . policies and procedures provided

adequate protection for [Mr. Hyatt’s] constitutional rights”; and that he “failed to

adequately supervise [the security officer] and promulgated, implemented and

maintained policies that allowed her repeated conduct to continue over a period of

several months.” Aplt. App. at 141-42. The complaint does not specify which

policies or procedures were inadequate to protect Mr. Hyatt’s constitutional rights,

                                           5
much less establish the requisite affirmative link between Mr. Christian and the

security officer’s alleged misconduct. “[I]t is not enough for a plaintiff merely to

show a defendant was in charge of other state actors who actually committed the

violation. Instead, . . . the plaintiff must establish a deliberate, intentional act by the

supervisor to violate constitutional rights.” Jenkins v. Wood, 81 F.3d 988, 994-95

(10th Cir. 1996) (internal quotation marks omitted); see also Serna, 455 F.3d at 1153

(“[S]upervisory liability must be based upon active unconstitutional behavior and

more than a mere right to control employees.” (internal quotation marks omitted)).

Nor do these allegations demonstrate that the security officer’s misconduct was

caused by Mr. Christian’s failure to implement different polices or procedures. We

therefore conclude the allegations in Mr. Hyatt’s complaint do not establish a

plausible basis for relief based on any conduct by Mr. Christian.

       Mr. Hyatt’s reliance on Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008), is

misplaced. There, a sheriff at a jail where sexual assaults had previously occurred

“was on notice of the dangerous conditions in the jail and was aware that his own

indifference toward jail operations had contributed to those conditions.” Id. at 917.

As a result, we concluded that he “was under a duty not only to take reasonable

measures to remedy the circumstances that directly led to the sexual assaults, but to

cure his own lack of attention and unresponsiveness to inmate complaints and other

indicators of serious problems with his detention staff.” Id. Although Mr. Hyatt

argues Mr. Christian’s deliberate indifference may be inferred because the

misconduct took place over several months, the complaint does not allege any facts

                                             6
to suggest that Mr. Christian actually knew of or acquiesced in the security officer’s

misconduct or that he ignored any indications of serious problems at the program.

C. Negligent Supervision Claim

      Mr. Hyatt argues that the complaint alleges sufficient facts to support a

negligent supervision claim against the OJA and SWOSU.

      To state a claim for negligent supervision under Oklahoma law, “[t]he critical

element for recovery is the employer’s prior knowledge of the servant’s propensities

to create the specific danger resulting in damage.” N.H. v. Presbyterian Church

(U.S.A.), 998 P.2d 592, 600 (Okla. 1999). Here, no facts are alleged which would

demonstrate that the OJA or SWOSU had any notice or reason to know of the

security officer’s propensity to engage in the type of misconduct at issue in this case.

Consequently, we conclude that the complaint fails to state a cause of action against

either the OJA or SWOSU.

III. Conclusion

      The district court’s order is affirmed.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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