F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

MAY 19 1997

UNITED STATES COURT OF APPEALS

PATRICK FISHER
Clerk

TENTH CIRCUIT

LOUISE WHITNEY,
Plaintiff-Appellant,
v.
STATE OF NEW MEXICO;
CHARLES PATRICK, Employee of
the State of New Mexico; JOHN/JANE
DOE, Unknown Employees of the
State of New Mexico,

No. 96-2198

Defendants-Appellees.

Appeal from the United States District Court

for the District of New Mexico
(D.C. No. CIV-96-571)
Louise Whitney, Pro Se, Roswell, New Mexico, Plaintiff-Appellant.
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
MURPHY, Circuit Judge

Plaintiff Louise Whitney, appearing pro se and in forma pauperis, 1 appeals

the district courts dismissal of her civil rights complaint. 2 Whitney brought her
action against the State of New Mexico, Charles Patrick, and other unknown
employees of the State of New Mexico under 42 U.S.C. 1983. Whitney alleged
the defendants violated her right to equal protection by discriminating against her
and harassing her on the basis of her sex. Although the complaint is far from
clear, reading this pro se complaint in a light most favorable to Whitney, she
appears to allege that New Mexico, through its agent Patrick, harassed her and
denied her a license to operate a day care facility because she is female. After
she was denied a license, Whitney was apparently hired as administrator of the
day care facility by the new owner, Louis Angelos. According to Whitney,
Patrick continued to harass her during the entire term of her employment with
Angelos. In addition, Whitney alleged that Patrick defamed her by mak[ing]

Although Whitney was a prisoner at a federal correctional facility at the

time she filed her complaint, she was released from custody prior to the district
courts dismissal of her case. Because Whitney was not a prisoner at the time
she filed her notice of appeal, the filing fee provisions of the Prison Litigation
Reform Act do not apply to this appeal. See 28 U.S.C. 1915(a), (b), (h). This
court has reviewed Whitneys financial declarations and, based on that review,
grants her motion to proceed in forma pauperis on appeal. See id. 1915(a)(1).
1

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
2

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false remarks to Mr. Angelos insinuating that [Whitney] and Mr. Angelos were
intimately involved.
The district court dismissed Whitneys complaint sua sponte, holding as
follows: (1) Whitneys discrimination claim was frivolous under 28 U.S.C.
1915(d) 3 because [o]nly the New Mexico Health Department can grant or deny a
license for a day care facility and a claim for damages against this department is
the same as a claim for damages against the State itself, an entity immune from
suit in federal court under the provisions of the Eleventh Amendment; (2)
Whitneys allegation that Patrick sexually harassed her failed to state a claim
because Whitney had not alleged sufficient state action to support her claim; and
(3) Whitneys defamation claim against Patrick failed to state a 1983 claim
because Whitney did not allege any punitive action taken against her as a result of
Patricks remarks. Accordingly, the district court dismissed Whitneys
discrimination claim without prejudice to her bringing the claim in state court and
dismissed the remainder of Whitneys claims with prejudice. This court exercises
jurisdiction over Whitneys appeal pursuant to 28 U.S.C. 1291 and affirms in
part and reverses in part.

The provisions of 28 U.S.C. 1915(d) have been recodified at 28 U.S.C.

1915(e).
3

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Mindful that pro se actions are held to a less stringent standard of review
and that sua sponte dismissals are generally disfavored by the courts, we
nonetheless allow a complaint to be dismissed under 1915(d) if the plaintiff
cannot make a rational argument on the law and facts in support of [her] claim.
Yellen v. Cooper, 828 F.2d 1471, 1475 (10th Cir. 1987) (quoting Van Sickle v.
Holloway, 791 F.2d 1431, 1434 (10th Cir. 1986)). This court reviews a district
court dismissal under 1915(d) for an abuse of discretion. Green v. Seymour, 59
F.3d 1073, 1077 (10th Cir. 1995).
Although the district court did not abuse its discretion in dismissing
Whitneys discrimination claim against New Mexico and against Patrick in his
official capacity, it erred in dismissing her discrimination claim against Patrick in
his individual capacity. In addressing Whitneys discrimination claim, the district
court stated as follows:
Plaintiffs discrimination claims are barred by the Eleventh
Amendment to the Constitution, which extends the sovereign
immunity enjoyed by the States to actions in federal court. See
Griess v. Colorado, 841 F.2d 1042, 1043-44 (10th Cir. 1988). Only
the New Mexico Health Department can grant or deny a license for a
day care facility, see N.M. Stat. Ann. 24-1-(3)(I) and -5(a)
(Michie Repl. Pamp. 1994), and a claim for damages against this
department is the same as a claim for damages against the State
itself. See Neitzke v. Willliams, 490 U.S. 319, 327 (1989); Will v.
Mich. Dept of State Police, 491 U.S. 58 (1989). Plaintiffs
discrimination claims for damages will accordingly be dismissed as
frivolous pursuant to 28 U.S.C. 1915(d).
Dist. Ct. Order at 2.
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Whitneys claim against New Mexico is based on an indisputedly meritless

legal theory, Neitzke v. Williams, 490 U.S. 319, 327 (1989), because the State of
New Mexico is clearly entitled to Eleventh Amendment immunity. Seminole
Tribe of Florida v. Florida, 116 S. Ct. 1114, 1122 (1996). Dismissal of
Whitneys damage claims against New Mexico is, therefore, proper under
1915(d). See Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992)
(upholding a dismissal under 1915(d) on the basis of Eleventh Amendment
immunity). Furthermore, because a suit against an individual in his official
capacity is, in reality, a suit against the agency which the individual represents,
Whitneys suit against Patrick in his official capacity as an agent for New Mexico
is also barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S.
159, 166-68 (1985). The district courts 1915(d) dismissal of Whitneys suit
against Patrick in his official capacity was not an abuse of discretion. See
Northington, 973 F.2d at 1521.
The district court did, however, abuse its discretion in dismissing on
Eleventh Amendment grounds Whitneys discrimination claim against Patrick in
his individual capacity. See Reliance Ins. Co. v. Mast Constr. Co., 84 F.3d 372,
375-76 (10th Cir. 1996) (holding that abuse of discretion is established if district
courts decision was based on an error of law). In generally dismissing Whitneys
discrimination claims, the district court apparently assumed that because [o]nly
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the New Mexico Health Department can grant or deny a license for a day care
facility, only the State could be held responsible for the discriminatory denial of
a license to operate a day care facility. The district court apparently further
assumed that because New Mexico is immune under the Eleventh Amendment,
Whitneys discrimination claims had to be dismissed in toto, even as against
Patrick in his individual capacity.
Contrary to the decision of the district court, the Eleventh Amendment does
not operate as a bar to Whitneys claim against Patrick in his individual capacity.
This court has recognized that 1983 suit[s] against state officers in their
individual capacities [are] not barred by the Eleventh Amendment, inasmuch as
such suits proceed on the theory that when the officers act unconstitutionally, they
are stripped of their official or representative character and are thus subjected to
the consequences of their conduct. Houston v. Reich, 932 F.2d 883, 887 (10th
Cir. 1991); see also Duncan v. Gunter, 15 F.3d 989, 991-92 (10th Cir. 1994)
(The Eleventh Amendment does not bar [individual-capacity suits] because state
officers may be personally liable for their unconstitutional acts.). Accordingly,
the district courts Eleventh Amendment dismissal of Whitneys discrimination
suit against Patrick in his individual capacity was error.
In addition to dismissing Whitneys discrimination claims, the district court
also dismissed her 1983 harassment and defamation claims against Patrick.
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This court has held that a district court may dismiss sua sponte a pro se complaint
for failure to state a claim. McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.
1991). Such a dismissal is appropriate only where it is patently obvious that
the plaintiff could not prevail on the facts alleged, and allowing [her] an
opportunity to amend [her] complaint would be futile. Id. (citation omitted); see
also Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991) ([P]ro se litigants
are to be given reasonable opportunity to remedy the defects in their pleadings.).
Nevertheless, when the plaintiff is proceeding pro se, we must construe [her]
pleadings liberally, applying a less stringent standard than is applicable to
pleadings filed by lawyers. Gagan v. Norton, 35 F.3d 1473, 1474 n.1 (10th Cir.
1994), cert. denied, 115 S. Ct. 1175 (1995). This court, however, will not supply
additional factual allegations to round out a plaintiffs complaint or construct a
legal theory on a plaintiffs behalf. Hall, 935 F.2d at 1110.
With these precepts in mind, we conclude that the district court erred in
dismissing Whitneys harassment claim against Patrick. Citing this courts
opinion in Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir. 1994), the district court
recognized: An allegation of sexual harassment is actionable under 1983 as a
violation of the Equal Protection Clause. . . . [H]owever, . . . in order to establish
the state action necessary to support a 1983 claim, defendant . . . had to be
plaintiffs supervisor or in some other way exercise state authority over her.
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Nevertheless, the district court concluded that Whitneys harassment allegations

did not support a claim under 1983 because [t]he only supervisory/authority
relationships alleged in the complaint were between [Whitney] and private
business owners. Dist. Ct. Op. at 3. We disagree.
Read liberally, Whitneys pro se complaint alleges Patrick harassed her
while Patrick was deciding whether Whitney was entitled to a day care facility
license. As the Supreme Court has noted, a person acts under color of state law if
he exercise[s] power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law. West v. Atkins,
487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326
(1941)); see also David v. City & County of Denver, 101 F.3d 1344, 1354 (10th
Cir. 1996) ([L]iability for sexual harassment under the Equal Protection Clause
of the Fourteenth Amendment is generally based on some authority that the
defendant has over the victim.). Without the presence of some type of state
authority on the part of the defendant, it is difficult to establish that the abusive
action was perpetrated under color of state law rather than as an essentially
private act of sexual harassment. David, 101 F.3d at 1354 (quoting Woodward
v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992), cert. denied, 509 U.S.
923 (1993)). Under this standard, [i]t is firmly established that a defendant in a
1983 suit acts under color of state law when he abuses the position given to him
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by the state. Thus generally, a public employee acts under color of state law
while acting in his official capacity or while exercising his responsibilities
pursuant to state law. West, 487 U.S. at 49-50.
The Ninth Circuit has applied the standards the Supreme Court enunciated
in West to a case similar to the instant case. In Dang Vang v. Vang Xiong X.
Toyed, 944 F.2d 476 (9th Cir. 1991), two Hmong refugees from Laos sued Xiong,
an employee of the Washington State Employment Security office. Each plaintiff
claimed that Xiong sexually harassed and assaulted them when they sought his
assistance in finding employment. The Ninth Circuit held that the plaintiffs had
sufficiently alleged and proved that Xiong acted under color of state law by
presenting the following evidence:
Both plaintiffs in this case came into contact with Xiong because of
their need for employment and their understanding that Xiong and his
department could be relied upon to supply jobs to Hmong refugees.
The jury could have found that each plaintiff was raped during a
meeting with Xiong related to the provision of services pursuant to
his state employment. An expert in Hmong anthropology testified at
trial that after fleeing from Laos, Hmong refugees have been entirely
reliant on government aid, and as a result, are in awe of government
officials.
Id. at 480. Based on this evidence, the Ninth Circuit concluded the jury
reasonably could have concluded that [Xiong] used his government position to
exert influence and physical control over these plaintiffs in order to sexually
assault them. Id.
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Applying the standards set out in West, as elucidated by the Ninth Circuit in
Vang Dang, this court resolves that Whitneys allegations of sexual harassment by
Patrick are sufficient to state a claim upon which relief could be granted. Read
liberally, Whitneys complaint alleges that Patrick harassed her at a time that
Patrick had some state-derived authority over her ability to get a license. See
West, 487 U.S. at 49-50 (holding that an individual is acting under color of state
law when he is exercising his responsibilities pursuant to state law). Furthermore,
assuming as we must that Whitneys allegations are true, Patrick could not have
harassed Whitney absent his authority as an agent for the State. See West, 487
U.S. at 49-50; see also Noland, 39 F.3d at 271 (holding that sexual harassment is
actionable under 1983 as a violation of the Equal Protection Clause where
plaintiff alleges and proves defendant in some [] way exercise[d] state authority
over her). Whitneys allegations of sexual harassment by Patrick are sufficient
to state a claim for relief under 1983.
The district court also dismissed Whitneys 1983 claim relating to
Patricks alleged defamatory statements to Angelos because she did not allege a
nexus between Patricks remarks and any punitive action taken against her. To
prevail on a claim for deprivation of a liberty interest in her reputation, Whitney
must allege and establish that there was information published that was false and
stigmatizing. Jensen v. Redevelopment Agency, 998 F.2d 1550, 1558 (10th Cir.
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1993). Furthermore, the alleged stigmatization must be coupled with the loss of a
liberty or property interest initially recognized and protected by state law. Paul
v. Davis, 424 U.S. 693, 710 (1976); see Allen v. Denver Pub. Sch. Bd., 928 F.2d
978, 982 (10th Cir. 1991).
We agree with the district court that Whitney failed to allege all of the
elements necessary to state a claim for the deprivation of her liberty interest in
her reputation. In particular, Whitney failed to allege the loss of a state created or
enforced property or liberty interest as a result of Patricks alleged remarks.
Although this court reads pro se pleadings liberally, we will not supply additional
factual allegations to round out a plaintiffs complaint or construct a legal theory
on a plaintiffs behalf. Hall, 935 F.2d at 1110. Furthermore, it is clear that
allowing Whitney the opportunity to amend her complaint would be futile
because, under the facts alleged by Whitney, Patricks alleged statements to
Angelos are incapable of stigmatizing Whitney. As the basis for her 1983
defamation claim, Whitney alleged that Patrick defamed her by mak[ing] false
remarks to Mr. Angelos insinuating that [Whitney] and Mr. Angelos were
intimately involved. Whitneys claim fails whether Patricks statement was true
or false. If Patricks statement was true, it is incapable of supporting a 1983
defamation claim. Jensen, 998 F.2d at 1558 (holding that statement must be false
to support a 1983 defamation claim). If Patricks statement was false, Angelos
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would have certainly known it was false and it thus could not have stigmatized
Whitney. Because Whitney failed to allege key elements of her 1983 claim for
defamation and because allowing her to amend her complaint would be futile, the
district court properly dismissed the claim under Rule 12(b)(6).
The district courts dismissal of Whitneys claims against the State of New
Mexico and against Patrick in his official capacity is hereby AFFIRMED. The
district courts dismissal of Whitneys defamation claim against Patrick in his
individual capacity is also AFFIRMED. The district courts dismissal with
prejudice of Whitneys discrimination and harassment claims against Patrick is
hereby REVERSED and the cause is REMANDED to the district court for
proceedings consistent with this opinion.

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