                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         DEC 19 2000
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 DOUGLAS G. DRY,

           Plaintiff - Appellant,
 vs.                                                    No. 99-7137
                                                  (D.C. No. 97-CV-344-B)
 CITY OF DURANT; ROSCOE                                 (E.D. Okla.)
 HATFIELD, Mayor of Durant; DAVID
 NORRIS, Vice-Mayor of Durant; RON
 REED; J. C. CURTIS; MIKE
 PATTERSON; JACK JONES;
 DOUGLAS KEITH CHILDERS; BEN
 VEENSTRA; RONNIE HAMPTON;
 CHRIS CICIO; JOHN DOE, an
 unknown person, in their official and
 individual capacities,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before BRORBY, MCKAY, and KELLY, Circuit Judges.


       Plaintiff-Appellant Douglas G. Dry appeals from the district court’s grant

of summary judgment in favor of Defendants-Appellees. Our jurisdiction arises

under 28 U.S.C. § 1291 and we affirm.


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
                                        Background

       The following material facts are undisputed. The Choctaw Nation’s annual

Labor Day festival is held near Tuskahoma, Oklahoma, approximately one

hundred miles from the City of Durant, on land held in trust for the Choctaw

Nation of Oklahoma (“the Choctaw Nation” or “the Nation”) by the United States.

Aplt. App. at 105, 112, 126, 128. At all times relevant to this action, Kim Reed

was the Director of Law Enforcement for the Choctaw Nation.             Id. at 98.

Defendants Ronnie Hampton, Ben Veenstra, Chris Cicio, and Douglas Childers

were regularly employed as police officers of the City of Durant.         Id. at 102-03.

In May 1996, Ms. Reed contacted Mr. Hampton to ask whether he or any of his

co-workers would be interested in off-duty employment with the Nation as

security guards at the 1996 Labor Day festival.       Id. at 99, 102.

       In general, regularly-employed police officers of the City of Durant were

permitted to accept off-duty employment so long as such employment did not

interfere with their duties to the City –   i.e. , did not create a conflict of interest or

bring the City or the Police Department into disrepute.       Id. at 128. Officers of the

City of Durant were instructed that their police authority extended only to the

time during which they were on duty as police officers, and solely within the

City’s geographical limits.     Id. at 128, 130. If an officer’s off-duty employment

caused him to be absent from his regular duties for any reason, the time missed


                                            -2-
was deducted from his accrued leave.         Id. at 106, 112.

       Ultimately, the Choctaw Nation hired Mr. Hampton, Mr. Childers, Mr.

Veenstra, and Mr. Cicio to work at the festival.        Id. at 103. The Nation paid the

officers $15.00 per hour and reimbursed them for mileage traveled to and from

tribal grounds.   Id. at 113-25. On August 30, 1996, the officers reported for duty

to Tribal Chief of Police Hoppy Denison, who briefed them on their duties and

the scope of their authority as tribal security officers.       Id. at 103, 108, 110. As

part of his briefing, Chief Denison described Council Bill CB-113-96, a tribal

ordinance which prohibited “political activity or advocacy for a particular cause”

on tribal grounds without a permit, and which limited such activity to areas

designated by the Labor Day Committee.           Id. at 72. Chief Denison told the

officers that if they saw anyone whom they believed to be in violation of CB-113-

96, they were to ask the person to stop and return to the designated area. If the

person refused, the officers were to call a regular tribal police officer to make the

arrest. Id. at 103, 108, 110. Chief Denison instructed the officers that they were

authorized to make arrests for violations of other tribal laws, but that they were

not authorized to enforce the laws of any other entity, including Oklahoma or the

City of Durant.    Id. The officers understood that their only authority on tribal

grounds was as tribal security officers.      Id. at 103, 110.

       On September 2, 1996, Mr. Veenstra and Mr. Hampton were informed that


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several people engaged in political activity had left the designated area carrying

materials they had been distributing.    Id. at 104. When the officers intercepted

the group, the first person they encountered was Plaintiff Douglas G. Dry.         Id. at

104, 111. The officers were wearing their City of Durant police uniforms.          Id. at

105. Mr. Dry was carrying political brochures.          Id. at 33. Officer Veenstra asked

him several times to stop and “talk . . . for just a minute,” but Mr. Dry refused.

Id. at 35. Via radio, Mr. Hampton advised tribal police officers of the situation

and requested assistance. Mr. Veenstra, Mr. Hampton, and a third security officer

then forcibly stopped and restrained Dry.       Id. at 105, 111.

       Within minutes, Chief Denison arrived at the scene, told the officers that it

would be preferable to have a warrant before arresting Mr. Dry, and directed them

to release him.   The officers complied with this instruction, and Mr. Dry walked

away. Id. at 105, 109, 111. Mr. Dry was eventually charged under tribal law with

“assault and battery upon a police officer,”     1
                                                     id. at 38, and with violating CB-113-

96. Id. at 32. The CB-113-96 charge was dismissed on February 13, 1997, when

tribal officials realized that the bill had never been presented to or approved by


       1
         According to the defendants, Mr. Veenstra had stepped in front of Mr.
Dry to block his path and Mr. Dry had run into him forcefully, nearly knocking
Mr. Veenstra to the ground.      Id. at 104, 111. It was at that point that Mr.
Veenstra, Mr. Hampton, and a third security officer “forcibly stopped and
restrained Dry for the assault.”     Id. at 111; see also id. at 105. According to Mr.
Dry, he “did not, nor did [he] attempt to in any way, physically touch any
officer.” Id. at 33. This dispute is not material to our analysis.

                                               -4-
the Bureau of Indian Affairs, as required by 25 C.F.R. § 11.123(e).           Id. at 32. At

no time relevant to this action was Chief Denison aware of this procedural defect,

nor were the officer defendants or any other law enforcement officer.             Id. at 108-

09.

       Mr. Dry filed this federal lawsuit on May 30, 1997, asserting claims under

42 U.S.C. § 1983 (“§ 1983”) and the Oklahoma Governmental Torts Claims Act

(“OGTCA”), and sought compensatory damages, attorneys’ fees and costs, and

punitive damages. As defendants, he named the City of Durant; John Doe, an

unidentified man “acting in a law enforcement capacity for an unnamed agency,”

id. at 60, ¶ 16; Officers Hampton, Veenstra, Cicio, and Childers (“the officers” or

“the officer defendants”); and several (then) municipal officers of the City of

Durant, including Chief Jones (“the supervisory defendants”). All of the

individual defendants were sued in their official and individual capacities. In

September 1998, the district court dismissed the OGTCA claims against the

officer defendants in their individual capacities for failure to state a claim.        Id. at

87-88. In September 1999, the court dismissed the John Doe defendant and

granted summary judgment for the named defendants on all remaining claims. In

this appeal, Plaintiff Dry does not challenge the dismissal of his OGTCA claims,

nor does he argue that “John Doe” was improperly dismissed. We therefore

confine our analysis to the § 1983 claims.       See Adler v. Wal-Mart Stores, Inc.      ,


                                              -5-
144 F.3d 664, 679 (10th Cir. 1998) (noting that issues not argued in appellant’s

opening brief are waived).



                                              Discussion

       We review an award of summary judgment             de novo , applying the same

standard as the district court   . Stamper v. Total Petroleum, Inc. Retirement Plan

for Hourly Rated Employees , 188 F.3d 1233, 1237 (10th Cir. 1999). Summary

judgment is appropriate only “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the [appellees are]

entitled to a judgment as a matter of law.”         Fed. R. Civ. P. 56(c). When applying

this standard, we view the evidence and draw reasonable inferences therefrom in

the light most favorable to the nonmoving party,         but we do not make credibility

determinations or weigh the evidence.         E.g. , Reeves v. Sanderson Plumbing

Prods., Inc. , 120 S. Ct. 2097, 2110 (2000) (citations omitted);      see also Anderson

v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986) (noting that “[c]redibility

determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge”). We need not

echo the district court’s reasoning, but may affirm for any reason supported by the

record. Perry v. Woodward , 199 F.3d 1126, 1141 n.13 (10th Cir. 1999),          cert.


                                              -6-
denied , 120 S. Ct. 1964 (2000).

       In order to prevail on a § 1983 claim, a plaintiff must establish that the

defendant acted under color of state law, and that the defendant’s actions

deprived the plaintiff of some constitutional right.        Sutton v. Utah State Sch. for

the Deaf & Blind , 173 F.3d 1226, 1237 (10th Cir. 1999).             On appeal, Plaintiff Dry

argues that “municipal officers are city officers” –       i.e. , state actors – “when

dressed in city uniforms, wearing city badges and driving city police cruisers

when hired by a tribe as security guards.” Aplt. Br. at 2. The plaintiff contends

that the officers, acting under color of state law, “arrested [him] for exercising his

free speech by ‘possessing’ political literature on tribal lands when an invalid and

illegal 2 tribal ordinance forbid [sic] ‘passing out’ literature.”        Id. In response, the

officer defendants claim that summary judgment was proper for three independent

reasons: (1) they did not act under color of state law, (2) no constitutional

violation occurred, and (3) they are entitled to qualified immunity under           Harlow

v. Fitzgerald , 457 U.S. 800, 818 (1982). Aplee. Br. at 9. Because we hold that

the officers did not act under color of state law, we need not address the parties’

other arguments.     See Celotex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)


       2
         Mr. Dry appears to claim that CB-113-96 is inherently “illegal” because
the Choctaw Nation lacks criminal jurisdiction over its members.   Aplt. Br. at 1,
10. We have already rejected this argument in a case arising out of Mr. Dry’s
arrest at the 1995 Labor Day festival. See Dry v. United States, No. 99-7110, ---
F.3d ---, ---, 2000 WL _____, *__ (10th Cir. Dec. 19, 2000).

                                              -7-
(holding that court must enter summary judgment “against a party who fails to

make a showing sufficient to establish the existence of an element essential to

that party’s case”).

       It is well-settled that the “acts of officers in the ambit of their personal

pursuits” are not “under color of law.”      Screws v. United States , 325 U.S. 91, 111

(1945). The mere fact that a defendant lacked actual state authority, however, is

not determinative.     As the Supreme Court has noted, if § 1983 “was designed to

embrace only action which the State       in fact authorized , the words ‘under color of

any law’ were hardly apt words to express the idea.”       Id. (emphasis added).

Rather, the “[m]isuse of power, possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law, is

[also] action taken under color of state law.”     Monroe v. Pape , 365 U.S. 167, 184

(1961) (quoting United States v. Classic , 313 U.S. 299, 326 (1941)),      overruled on

other grounds by Monell v. Dep’t of Soc. Servs. of New York        , 436 U.S. 658

(1978) .

       The Supreme Court has never held that objective indicia of state authority,

without more, can bring an officer’s otherwise “purely personal pursuits” within

the scope of § 1983. In Griffin v. Maryland , 378 U.S. 130 (1964), the Court held

that a security guard for a private amusement park acted under color of law when

he asked African-American patrons to leave the park, and arrested and instituted


                                             -8-
criminal proceedings against those who refused to comply.            At the park’s request,

the guard had been deputized as a sheriff, and he wore a sheriff’s badge during

the encounter in question.      Id. at 132. Although the badge was relevant to the

“color of law” analysis,     the Court also relied on the facts that the officer

consistently identified himself as a deputy sheriff,      made arrests, transported

arrestees to the police station, and swore out a complaint against them on a form

entitled “Application for Warrant by Police Officer.”           Id. at 133-35. The Court

held that “[i]f an individual is possessed of state authority       and purports to act

under that authority , his action is state action.”    Id. at 135 (emphasis added);    see

also Lugar v. Edmondson Oil Co. , 457 U.S. 922, 935 (1982) (“If the challenged

conduct . . . constitutes state action . . . , then that conduct [is] also action under

color of state law and will support a suit under § 1983.”).

       Lower courts have employed a totality of the circumstances approach in

their analyses of “under color of state law” questions involving off-duty police

officers and security guards.     E.g. , Goldstein v. Chestnut Ridge Volunteer Fire

Co. , 218 F.3d 337, 348-49 (4th Cir. 2000),      petition for cert. filed   (U.S. Nov. 16,

2000) (No. 00-818); United States v. Walsh , 194 F.3d 37, 51 (2d Cir. 1999). In

addition to considering such factors as a defendant’s actual authority,         e.g. , Gibson

v. City of Chicago , 910 F.2d 1510, 1517-19 (7th Cir. 1990);          D.T. ex rel. M.T. v.

Indep. Sch. Dist. No. 16 , 894 F.2d 1176, 1186 (10th Cir. 1990) (state action), and


                                              -9-
objective indicia of authority,   e.g. , Lusby v. T.G. & Y. Stores, Inc. , 749 F.2d

1423, 1428-29 (10th Cir. 1984),     3
                                        courts have also examined subjective factors.

These factors, which usually depend on the testimony of the parties, include the

victim’s perception of the encounter,       e.g. , Robinson v. Davis , 447 F.2d 753, 758

(4th Cir. 1971), and the defendant’s belief as to whether he was acting under

color of state law,    e.g. , Traver v. Meshriy , 627 F.2d 934, 938 (9th Cir. 1980). In

this case, it is uncontroverted that the officers did not act pursuant to actual state

authority, Aplt. App. at 128, 130, nor did they believe themselves to be clothed

with such authority.     Id. at 103, 110. In support of his contention that the officers

were acting under color of state law, Plaintiff claims: (1) that “the defendant

officers were wearing City of Durant uniforms and badges and carrying weapons

assumed to be service issued;” (2) that the “officers did not correct or refute

[Plaintiff’s] statement” when he referred to them as Durant police officers; (3)


       3
        The subsequent history of Lusby is somewhat complex. After our 1984
decision in Lusby, both the individual defendants and the municipal defendants
filed petitions with the Supreme Court for a writ of certiorari. On October 7,
1985, the Court denied certiorari with respect to the individual defendants, 474
U.S. 818 (1985) (case no. 84-1759), and granted certiorari with respect to the
municipal defendants. 474 U.S. 805 (1985) (case no. 84-1715). In the two-
sentence order granting the municipal defendants’ petition, the Court ruled that
“[t]he judgment is vacated and the case is remanded to the United States Court of
Appeals for the Tenth Circuit for further consideration in light of City of
Oklahoma City v. Tuttle, 471 U.S. 808 (1985).” 474 U.S. 805. On remand, we
did not address the color of state law question, focusing exclusively on the impact
of Tuttle. Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307 (10th Cir.), cert. denied
sub nom. City of Lawton, Oklahoma v. Lusby, 479 U.S. 884 (1986).

                                             - 10 -
that the officers threatened to arrest and mace him, and that they did, in fact,

restrain him; and (4) that the Choctaw Nation later charged him with assaulting a

police officer. Aplt. Br. at 7.

      We have found no evidence in the record to support the plaintiff’s claim as

to the officers’ badges and weapons. With respect to the officers’ threats against

Plaintiff and his brief detention, the evidence indicates that the officers’ actions

were consistent with their duties and authority as security guards for the Choctaw

Nation. Aplt. App. at 103-05, 108, 110-11. Nor are we persuaded of the

materiality of the Information charging that Plaintiff committed an “assault and

battery upon a police officer . . . in violation of Section 17-8 of the Criminal Code

of the Choctaw Nation.”    Id. at 38.

      A “police officer,” as the term is used in Section 17-8, is “any duly

appointed person who is charged with the responsibility of maintaining public

order, safety, and health by the enforcement of all laws, ordinances, or orders of

this Nation . . . and who is authorized to bear arms in execution of his

responsibilities.” Choctaw Criminal Code § 17-7(A),      quoted in Aplee Br. at 17.

This broad definition includes temporary security officers, regardless of the

nature of their regular employment. Further, even if we indulge Mr. Dry by

accepting his claim that Section 17-8 of the Choctaw Criminal Code does not

prohibit assaults on tribal police officers, but only on police officers from other


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jurisdictions, the tribal prosecutor’s decision to charge Mr. Dry under that section

would still be immaterial to our analysis. Similarly, the prosecutor’s

identification of the assaulted officer as “to wit: Durant Police Officer, Ben

Veenstra,” Aplt. App. at 38, is also irrelevant. Accordingly, the only potentially

material facts are: (1) that the officers were wearing police uniforms at the time

of the encounter, id. at 105, and (2) that they did not correct Mr. Dry when he

referred to them as Durant Police Officers,      id. at 35, 37. Taken together, we hold

that this evidence is insufficient to create a genuine issue of material fact as to

whether the officer defendants acted under color of state law.

       The plaintiff relies heavily on this circuit’s 1984 decision in    Lusby for the

proposition that the defendants’ official attire, standing alone, is sufficient to

establish action under color of state law. Aplt. Br. at 7.      Contra Robinson , 447

F.2d at 759 (“It is plain that a state officer is not necessarily acting in his official

capacity merely because he is clothed in official garb.”). Plaintiff’s reliance on

Lusby is misplaced. In that case, we held that an off-duty police officer employed

as a private security guard acted under color of state law when he arrested a

suspected shoplifter.   Lusby , 749 F.2d at 1430. There was evidence that the

officer flashed his badge, identified himself as a Lawton police officer, placed the

plaintiff under arrest and told him that he was going to jail, used police

documents to complete the arrest forms, and, by his own admission, had trouble


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distinguishing between his private and official roles.           Id. at 1429-30 & n.2. There

is no comparable evidence in this case.

       Mr. Dry’s brief states that “[t]o Plaintiff Dry, the defendant officers were

acting under the color of state law by their dress and actions. When viewed

through the eyes of the victim, or a third party, there was no other conclusion to

reach except that Durant police officers were arresting and assaulting Dry.” Aplt.

Br. at 7. It is not clear whether Plaintiff included this language to summarize his

indicia of authority argument or to direct our attention to an additional factor --

i.e. , his belief in the officers’ status as state actors. If Mr. Dry is asserting such a

belief, there is no evidence in the record to support it.         In order to survive

summary judgment, the nonmoving party cannot rest on assertions in pleadings or

briefs and must “make a showing sufficient to establish the existence of an

element essential to that party's case . . . .”        Celotex , 477 U.S. at 322. Mr. Dry’s

affidavit refers to the officers as “Durant police officers,” but notably fails to

state that he believed the officers were acting in their official capacity during the

encounter at issue. Aplt. App. at 33-34. The transcript of the encounter is

similarly vague.    See id. at 35 (statement by Mr. Dry) (“You are with the Durant

Police Department. I don’t think you ought to be bothering me.”);             id. at 37 (“The

Durant Police Department has me stopped here.”). Although the nonmoving party

is entitled to all reasonable inferences supported by the record,         Reeves , 120 S. Ct.


                                                  - 13 -
at 2110, under the specific circumstances of this case, it is unreasonable to infer

that Plaintiff believed the officers were acting under color of state law.

       We agree with the district court that Plaintiff’s statements during the

encounter must be considered in light of his status as an attorney.          Dry v. City of

Durant , No. CIV-97-344-B, at 13 (Sept. 30, 1999). In addition, we take judicial

notice of the record, filed by Mr. Dry, in another case before this court,        see Van

Woudenberg ex rel. Foor v. Gibson      , 211 F.3d 560, 568 (10th Cir. 2000), wherein

Plaintiff Dry referred to his “broad, extensive background” in federal Indian law.

Resp. by Pls. Dry et al. to R. Rabon’s Mot. to Dismiss,       at 2 Aplt. App. 327 n.2,

Dry v. United States , No. 99-7110, --- F.3d --- (10th Cir. Dec. 19, 2000). Given

the cardinal principle that Indian tribes are “distinct political communities, having

territorial boundaries, within which their authority is exclusive,”      Okla. Tax

Comm’n v. Sac & Fox Nation , 508 U.S. 114, 123 (1993) (quoting               Worcester v.

Georgia , 31 U.S. 515, 557 (1832)), we cannot infer that Plaintiff, an experienced

attorney with a self-proclaimed expertise in federal Indian law, believed that the

authority of the Durant Police Department extended to Indian country located

approximately one hundred miles from the City of Durant.

       In sum, we hold that the § 1983 claims against the defendant officers fail as

a matter of law because the plaintiff cannot satisfy the jurisdictional prerequisite

that the defendants acted under color of state law.       Polk County v. Dodson , 454


                                            - 14 -
U.S. 312, 315 (1981). Because the claims against the supervisory defendants are

derivative in nature, those claims cannot survive the dismissal of the claims

against the officer defendants. Accordingly, we affirm the dismissal of the

derivative claims without reaching the supervisory defendants’ causation

arguments.

      AFFIRMED.


                                                 Entered for the Court


                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




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