F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 23 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RICHARD POUNDS, Paralegal,
in propria persona, libera lex, sui juris,
federal witness, private attorney
general,
Plaintiff - Appellant,
v. No. 01-7084
(D.C. No. 99-CV-462-X)
DEE KILLION, a/k/a Dee Childers, (E.D. Oklahoma)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.
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)(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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff-appellant Richard Pounds appeals the district court’s order
granting summary judgment to defendant Dee Killion, an Indian Child Welfare
Worker for the Eastern Shawnee Tribe of Oklahoma (the Tribe), on his claims
brought against her under 42 U.S.C. § 1981 and § 1983. After de novo review,
we affirm.
In early 1996 defendant met with Rebecca McRae, Rebecca’s mother, Mary
Pounds, and Rebecca’s grandmother to discuss the welfare of Rebecca McRae’s
three children. As a result of this meeting, Rebecca McRae assigned custody of
her children to the Tribe. Defendant placed the children with Rebecca’s mother,
Mary Pounds. Plaintiff was, at that time, Mary Pounds’ live-in boyfriend with no
biological or legal relationship to the three children. Plaintiff and Mary Pounds
have since married.
The district court has recited the numerous court orders and hearings that
have preceded this case in tribal, state, and federal courts. We will not repeat
those here. The upshot is that Mary Pounds’ grandchildren have now been
adopted by another family. Plaintiff asserts that defendant’s role in this matter
was tortious under various state law theories and that she violated his
constitutional rights to equal protection, due process, and access to the courts.
The district court granted summary judgment to defendant on the § 1983
claim, holding that she enjoyed tribal sovereign immunity and, alternatively, that
-2-
plaintiff had failed to establish action by defendant under color of state or federal
law. As to the § 1981 claim, the court found no evidence of a contract, of an
employment relationship stemming from a contract, or of the existence of racial
animus which would permit application of § 1981.
Plaintiff’s complaint states that defendant was employed by the Eastern
Shawnee Tribal Business Council as the Tribe’s Indian Child Welfare Worker
and that she was an officer of the Court of Indian Offenses Children’s Division.
He further states that defendant is an “Officer of the Court acting within her
official capacity under color of legal authority.” R. Vol. I, tab 3 at III.
To the extent this allegation states a claim against defendant in her official
capacity, it is barred by tribal sovereign immunity. See E.F.W. v. St. Stephen’s
Indian High Sch. , 264 F.3d 1297, 1302, 1305 (10th Cir. 2001) (holding that
employees of tribal social services agency enjoyed sovereign immunity from
mother’s civil rights claims stemming from removal of daughter from her custody
and placement in psychological care facility despite existence of agreement with
State of Wyoming to provide social services to reservation children).
Alternatively, and to the extent these claims are brought against defendant
individually, plaintiff has failed to establish any tie to state law for purposes of
42 U.S.C. § 1983. Plaintiff alleges in his complaint that defendant was “acting
within her official capacity under color of legal authority.” This allegation,
-3-
however, is insufficient to bring plaintiff’s claims under the ambit of § 1983
which requires a putative defendant to act “under color of state law.” See
42 U.S.C. § 1983. “Indian tribes are not states of the union within the meaning
of the Constitution, and the constitutional limitations on states do not apply to
tribes.” Chapoose v. Hodel , 831 F.2d 931, 934 (10th Cir. 1987) (quotation
omitted). Because plaintiff does not allege that defendant acted under color of
state law, the district court was correct to grant summary judgment to defendant
on that basis. See E.F.W. , 264 F.3d at 1305-06.
Finally, the district court also correctly determined that summary judgment
for defendant was proper on plaintiff’s claim brought under 42 U.S.C. § 1981.
The judgment of the United States District Court for the Eastern District
of Oklahoma is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-4-