                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                              OCT 6 2000
                         FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                  Clerk

PATSY A. SMITH, an Individual,
d/b/a Little Peoples Ltd.,

            Plaintiff-Appellee,

v.                                             No. 00-6046
                                           (D.C. No. 99-CV-615)
DEPARTMENT OF HUMAN                            (W.D. Okla.)
SERVICES, State of Oklahoma,
The ex rel; KATHY CALVIN,
individually, and in her official
capacity as a Department of Human
Services Employee; VIVIAN
CARLISLE, individually, and in her
official capacity as a Department of
Human Services Employee; JUDY
COLLINS, individually, and in her
official capacity as a Department of
Human Services employee; KAY
DODSON, individually, and in her
official capacity as a Department of
Human Services employee; SUSAN
HALL, individually, and in her
official capacity as a Department of
Human Services employee; SHERRI
KLYE, individually, and in her
official capacity as a Department of
Human Services employee; PAM S.
LAFERNEY, individually, and in her
official capacity as a Department of
Human Services employee; GEORGE
A. MILLER, individually, and in his
official capacity as Director of the
Oklahoma Department of Human
Services; TREENA S. ROSS,
individually, and in her official
capacity as a Department of Human
Services employee; MARLENE
SMITH, individually, and in her
official capacity as a Department of
Human Services employee; DARLA
YELL, individually, and in her
official capacity as a Department of
Human Services employee,

            Defendants-Appellants.


                          ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and MURPHY , 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.

      Plaintiff Patsy Smith operated a day care center until the State of Oklahoma

revoked her child care facility license and canceled her Day Care Provider

Contract and her participation in the Child and Adult Care Food Program.

Defendants are employees, supervisors, and the present and past directors of the


*
      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.

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Oklahoma Department of Human Services. Plaintiff sued defendants under

42 U.S.C. §§ 1983 and 1985, alleging that they conspired to violate her property

and liberty interests and her right to due process in violation of the First, Fourth,

Fifth, Sixth, and Fourteenth Amendments. Defendants appeal from the

district court’s order denying their motion to dismiss plaintiff’s complaint under

Fed. R. Civ. P. 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291 because

the district court denied defendants’ claim that their absolute or qualified

immunity warranted dismissal.    See Tonkovich v. Kansas Bd. of Regents     ,

159 F.3d 504, 515 (10th Cir. 1998).

      Defendants argue on appeal that: (1) the district court is without

jurisdiction under the Eleventh Amendment to hear plaintiff’s § 1983 claim for

declaratory relief; (2) defendants Carlisle, Collins, Smith, Ross, and Yell are

absolutely immune from suit based on their testimony at plaintiff’s license

revocation hearing; (3) defendant Miller is entitled to qualified immunity on

plaintiff’s claims against him; and (4) the facts alleged in the complaint do not

overcome defendants’ qualified immunity defense.

      We review de novo the district court’s denial of Eleventh Amendment

immunity. See ANR Pipeline Co. v. Lafaver , 150 F.3d 1178, 1186 (10th Cir.

1998). Defendants contend that the district court lacks jurisdiction over

plaintiff’s § 1983 claim because she seeks only a declaratory judgment. In fact,


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plaintiff seeks a declaratory judgment that defendants’ actions were

unconstitutional; general, special, and punitive damages; and prospective

injunctive relief.    See Appellants’ App. at 59. “[T]he Eleventh Amendment has

been interpreted to bar a suit by a citizen against the citizen’s own State in

Federal Court.”      Johns v. Stewart , 57 F.3d 1544, 1552 (10th Cir. 1995) (quotation

omitted). This bar is not absolute, however.      See id. at 1553. The district court

lacks jurisdiction to enter a declaratory judgment alone in a § 1983 action.

See id. However, the district court has jurisdiction to hear a § 1983 claim for

prospective injunctive relief, and may enter an ancillary declaratory judgment in

such a case. See id. Defendants’ first argument is therefore without merit.

       We are also not persuaded by defendants’ argument that defendants

Carlisle, Collins, Smith, Ross, and Yell are absolutely immune from suit based on

their testimony at plaintiff’s license revocation hearing. We review the denial of

absolute immunity de novo.       See Scott v. Hern , 216 F.3d 897, 908 (10th Cir.

2000). Whether a witness is entitled to absolute immunity or only qualified

immunity hinges on whether the witness was more like a lay witness or

a complaining witness under the common law.         See Anthony v. Baker , 955 F.2d

1395, 1399-1400 (10th Cir. 1992);      see also Malley v. Briggs , 475 U.S. 335,

340-43 (1986) (deciding that police officer having function of complaining

witness is entitled only to qualified immunity, as at common law). “[W]hether [a


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given defendant] was a complaining witness or a lay witness is a factual question

to be resolved by the district court.”      Anthony , 955 F.2d at 1399-1400. Further,

“[l]ike federal officers, state officers who ‘seek absolute exemption from personal

liability for unconstitutional conduct must bear the burden of showing that public

policy requires an exemption of that scope.’”        Malley , 475 U.S. at 340 (quoting

Butz v. Economou , 438 U.S. 478, 506 (1978)). The district court therefore did

not err in determining that the immunity question as to defendants Carlisle,

Collins, Smith, Ross, and Yell depended on the resolution of factual issues that

would be improper under Rule 12(b)(6).          See Appellants’ App. at 63.

       Defendants next argue that defendant Miller is entitled to qualified

immunity on plaintiff’s claims against him. Mr. Miller is alleged to have been the

Director of the Department of Human Services while most of the actions occurred

about which plaintiff complains.         See id. at 44. “Qualified immunity shields

government officials performing discretionary functions from individual liability

under 42 U.S.C. § 1983 unless their conduct violates ‘clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Baptiste v. J.C. Penney Co. , 147 F.3d 1252, 1255 (10th Cir. 1998) (quoting

Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). Because defendants’ qualified

immunity defense was raised in the context of a motion to dismiss under

Fed. R. Civ. P. 12(b)(6), our review is de novo.       See Breidenbach v. Bolish ,


                                               -5-
126 F.3d 1288, 1291 (10th Cir. 1997). We consider only the amended complaint,

construing plaintiff’s allegations and any reasonable inferences drawn from them

in her favor. See Dill v. City of Edmond , 155 F.3d 1193, 1203 (10th Cir. 1998).

Because qualified immunity is asserted, however, the standard is somewhat

different than in the typical Rule 12(b)(6) case.     See Breidenbach , 126 F.3d

at 1291. That is, “we apply a heightened pleading standard, requiring the

[amended] complaint to contain ‘specific, non-conclusory allegations of fact

sufficient to allow the district court to determine that those facts, if proved,

demonstrate that the actions taken were not objectively reasonable in light of

clearly established law.’”     Dill , 155 F.3d at 1204 (quoting   Breidenbach , 126 F.3d

at 1293).   2
                In addition, because defendant Miller was a supervisor, plaintiff

cannot state a claim against him under § 1983 unless she “establish[es] ‘a

deliberate, intentional act by the supervisor to violate constitutional rights.’”

Jenkins v. Wood , 81 F.3d 988, 994-95 (10th Cir. 1996) (quoting         Woodward v.

City of Worland , 977 F.2d 1392, 1399 (10th Cir. 1992)). “[I]t is not enough for




2
       This court has not yet decided whether the Supreme Court’s decision in
Crawford-El v. Britton , 523 U.S. 574 (1998), requires us to modify this
heightened pleading standard and we have continued to employ it.    See Ramirez
v. Department of Corrections , 222 F.3d 1238, 1241 n.2 (10th Cir. 2000). Because
the parties do not challenge this standard, we need not consider that question
here.


                                              -6-
a plaintiff merely to show a defendant was in charge of other state actors who

actually committed the violation.”       Id. at 994.

       Plaintiff alleges in her seventh cause of action that Mr. Miller failed to

provide the same process of law to child care facility license holders as is given

to other professional license holders.      See Appellants’ App. at 53. In her eighth

and ninth causes of action, plaintiff alleges that defendant Miller caused the

violation of her civil rights through his negligent supervision and training of other

defendants who were his employees.         See id. at 54-56.

       The allegations in plaintiff’s seventh cause of action are insufficient to

state an equal protection claim against defendant Miller. In her complaint, she

asserts that child care facility license holders are treated differently than other

professional license holders.    See id. at 53. In her brief on appeal, she argues

that her day care center was treated differently than other centers.        See Appellee’s

Br. at 26. In either case, her allegations are conclusory and nonspecific, and she

fails to allege that defendant Miller knew about and acquiesced in the alleged

violations of her rights by other defendants.         See Jenkins , 81 F.3d at 995.

       Plaintiff’s eighth and ninth claims, alleging that Mr. Miller failed to train

his employees, are likewise insufficient. Plaintiff alleges no more than that

Mr. Miller was director when his subordinates took actions about which she

complains. See Appellants’ App. at 44-46, 54-55. In essence, these claims assert


                                                -7-
liability on the part of Mr. Miller under the theory of respondeat superior. That

doctrine, however, cannot support liability under § 1983.     See Monell v.

Department of Social Servs. , 436 U.S. 658, 691 (1978). Plaintiff’s claims against

defendant Miller must be dismissed.

       We do not address defendants’ argument that plaintiff had no property

interest in her day care license because defendants did not raise this issue in

the district court.   See Singleton v. Wulff , 428 U.S. 106, 120 (1976).

       Appellee’s motion to certify questions of state law is denied. The judgment

of the United States District Court for the Western District of Oklahoma is

AFFIRMED in part and REVERSED in part, and the case is REMANDED for

additional proceedings.


                                                 Entered for the Court



                                                 Michael R. Murphy
                                                 Circuit Judge




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