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

                             FOR THE TENTH CIRCUIT                            March 24, 2017
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
TANYA SANCHEZ, individually and on
behalf of M.S., her minor daughter;
VINCENT SANCHEZ; DANIELLE
BRIZENO,

      Plaintiffs - Appellees,
                                                             No. 15-2207
v.                                                (D.C. No. 2:13-CV-00444-KG-CG)
                                                             (D. N. Mex.)
ROSE SURRATT, in her individual
capacity,

      Defendant - Appellant,

and

DANNY SURRATT; SHIRLEY SEAGO;
JASON DAUGHERTY, in their individual
capacities,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, EBEL, and MATHESON, Circuit Judges.†
                  _________________________________


       *
         This order and judgment is not binding precedent, except under the doctrines of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.
       †
         The Honorable Neil M. Gorsuch was an original member of the panel that heard
oral argument. He did not participate in the resolution of this case or the preparation of
this order and judgment. The Honorable Scott M. Matheson, Jr., has replaced him on the
panel.
       Plaintiffs sued Rose Surratt under 42 U.S.C. § 1983 for violating her

granddaughter’s substantive due process right to bodily integrity under the Fourteenth

Amendment. She appeals the district court’s denial of her motion to dismiss based on

qualified immunity.1 We reverse and remand for the parties and the district court to

address whether Rose Surratt acted under color of state law.2

       This claim was brought on behalf of M.S., minor daughter of plaintiffs Tanya and

Vincent Sanchez, sister of plaintiff Danielle Brizeno, and granddaughter of defendant

Rose Surratt, who is married to Danny Surratt. According to the complaint, Danny

Surratt twice sexually molested nine-year-old M.S., who told her sister Danielle, who

next told Rose Surratt, who then, “with the intent of destroying evidence,” instructed her

son-in-law Vincent “to bathe M.S., including the cleaning of her private parts.” App. at

11 ¶¶ 24, 26. At the time, the Surratts were deputy sheriffs in Lea County, New Mexico.

Danny Surratt was convicted of criminal sexual penetration of a child under the age of

13, a first-degree felony.

       The district court denied Rose Surratt’s motion asserting qualified immunity. The

parties did not brief, and the court did not address, whether she had acted under color of




       1
        We have jurisdiction under 28 U.S.C. § 1291 over an interlocutory appeal
challenging the court’s denial of qualified immunity. Big Cats of Serenity Springs, Inc. v.
Rhodes, 843 F.3d 853, 856 (10th Cir. 2016).
       2
         We express no opinion regarding the district court’s decision to deny Rose
Surratt qualified immunity.

                                           -2-
state law.3 This court raised this issue for the first time on its own at oral argument. See

Oral Arg., No. 15-2207, at 01:10-02:54.

       Because (1) acting under color of state law is essential for a § 1983 claim, (2) Polk

County v. Dodson, 454 U.S. 312, 315 (1981) and Jojola v. Chavez, 55 F.3d 488, 492

(10th Cir. 1995), both said that “under color of state law” is jurisdictional, (3) the

complaint is unclear whether Rose Surratt acted under color of state law, (4) the parties

have not briefed or developed the record on this question, and (5) constitutional

avoidance points to determining the state-actor issue before the qualified-immunity issue,

we remand for further development and consideration of whether Rose Surratt acted

under color or state law.

       For the foregoing reasons, we reverse and remand with instructions to vacate the

decision denying qualified immunity and to conduct further proceedings consistent with

this order and judgment.


                                               ENTERED FOR THE COURT,



                                               Per Curiam




       3
        Rose Surratt’s motion asked the court to assume she had fulfilled the under-
color-of-state-law requirement.
                                             -3-
