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

                             FOR THE TENTH CIRCUIT                        August 17, 2017
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
ASHLEY AERY,

      Plaintiff - Appellant,

v.
                                                             No. 16-5176
BOARD OF COUNTY                                 (D.C. No. 4:15-CV-00624-CVE-TLW)
COMMISSIONERS OF TULSA                                       (N.D. Okla.)
COUNTY,

      Defendant - Appellee,

and

STANLEY GLANZ, in his individual
capacity; GERALD NUCKOLLS, in his
individual capacity; VIC REGALADO, in
his official capacity as Tulsa County
Sheriff,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________



*
  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 This order and judgment is not binding precedent, except under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.
       Plaintiff Ashley Aery appeals the district court’s dismissal of her state-law claims

against the Board of County Commissioners of the County of Tulsa (the Board).

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the dismissal and remand to

the district court with instructions to remand the claims to state court.

       This suit arises out of allegations that Tulsa County Deputy Sheriff Gerald

Nuckolls sexually assaulted Plaintiff after illegally searching her home. Plaintiff initially

filed suit in Tulsa County District Court against Mr. Nuckolls (who is no longer

employed by Tulsa County) and his supervisor, then Sheriff of Tulsa County Stanley

Glanz, in his individual and official capacities. The complaint alleged federal civil-rights

claims under 42 U.S.C. § 1983 and various state-law claims—including tort claims for

assault and battery, intentional infliction of severe emotional distress, and unlawful

arrest—against Mr. Nuckolls, and alleged that Sheriff Glanz was liable for failures to

properly hire, train, supervise, and retain Mr. Nuckolls. The defendants removed the suit

to the United States District Court for the Northern District of Oklahoma.

       Plaintiff then amended her complaint. The amended complaint could be clearer

but apparently it added only new state-law claims against Sheriff Glanz, and named the

Board as a defendant for the sole purpose of holding it vicariously liable (as the

employer) under state law for the actions of Mr. Nuckolls and Sheriff Glanz, see Pl.’s

Resp. to Board’s Mot. to Dismiss, Aplt. App. at 53–54 (claiming to assert only state-law

claims for vicarious liability against the Board—“the Oklahoma Government Tort Claims

Act . . . claims, and those for excessive force in violation of Okla. Const. Art. 2, § 30”).

Later the court substituted Vic Regalado (who became Sheriff during the litigation) as the

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proper party for any claims against the Sheriff in his official capacity, noting that

“Stanley Glanz remain[ed] a party in his individual capacity.” Dist. Ct. Order of Apr. 25,

2016, Aplt. App. at 73.

       The district court disposed of most of the claims in a manner not disputed by

Plaintiff. The court granted Plaintiff’s motion to dismiss the claims against Sheriff Glanz

in his individual capacity without prejudice. After Sheriff Regalado in his official

capacity offered judgment under Fed. R. Civ. P. 68 in the amount of $25,000, the court

granted Plaintiff’s motion to enter judgment in that amount under the rule. And upon

stipulation of the parties, the court entered judgment on all claims against Mr. Nuckolls in

the amount of $300,000.

       Plaintiff’s appeal concerns only the court’s dismissal of the Board on the grounds

(1) that it was an unnecessary party since the sheriffs were named in their official

capacities and (2) that, in any event, the Board could not be held liable for the actions of a

sheriff or his deputies because it did not possess supervisory authority over the Sheriff’s

Office. She argues that Tulsa County (not the Board itself) can be held vicariously liable

for the actions of its employees and that Okla. Stat. Ann. tit. 19, § 4 requires that parties

sue a county in the name of its board of county commissioners. The district court did not

address this argument, probably because the Board’s respondeat superior argument was

limited to the § 1983 claims.

       At this juncture the better course is to leave the matter to the state courts. Under

28 U.S.C. § 1367(c)(3), a federal court may decline to exercise supplemental jurisdiction

over a state-law claim if “the . . . court has dismissed all claims over which it has original

                                               3
jurisdiction.” We have advised: “When all federal claims have been dismissed, the court

may, and usually should, decline to exercise jurisdiction over any remaining state

claims.” Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir.

1998). And in Brooks v. Gaenzle, 614 F.3d 1213, 1229–30 (10th Cir. 2010), we held that

the district court erred in granting summary judgment against the plaintiff on a state tort

claim because only the state-law issue was left for decision after we affirmed the

dismissal of the federal claims. We said that the district court should decline to exercise

supplemental jurisdiction over that claim because the state-law issue was “best left for a

state court’s determination.” Id. at 1230.

       So too here. Particularly in light of the dismissal without prejudice of the claims

against Sheriff Glanz in his individual capacity, we think there are sufficient questions as

to the merits of the state-law claims against the Board that those issues now belong in

state court. We therefore direct the district court to remand the state-law claims against

the Board back to state court. See Roe v. Cheyenne Mountain Conference Resort, Inc.,

124 F.3d 1221, 1236–37 (10th Cir. 1997) (remanding state-law claim to district court to

decline exercise of supplemental jurisdiction and remand claim to state court).




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         We REVERSE the district court’s dismissal of the state-law claims against the

Board and REMAND those claims with instructions to further remand them to state

court.

                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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