Beedle v. Wilson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 2, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk

LARRY E. BEEDLE;
PEGGY LEE KORN,

Plaintiffs-Appellants,

v.

WILLIAM WILSON; JIMMY KING;
PHILIP BOHANON; ANGELA
TOVAR; TRISHA HASTY;
No. 01-6322
JACKSON COUNTY MEMORIAL
HOSPITAL; ELAINE BROWN;
FENTON, FENTON, SMITH,
RENEAU AND MOON; BEVERLY
PEARSON; JAY CHAPMAN;
TAYLOR WYAND; RICHARD B.
DARBY; JOHN WAMPLER; MIKE
PATTERSON,

Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. Nos. 99-CV-827-M and 00-CV-699-M)

Submitted on the briefs:

Larry Beedle, Plaintiff-Appellant, Pro Se.

Peggy Korn, Plaintiff-Appellant, Pro Se.

Reggie N. Whiten, Robert W. Nelson, Simone Gosnell Fulmer, of Whitten,
Nelson, McGuire, Wood, Terry, Roselius & Dittrich, Oklahoma City, Oklahoma,
for Defendants-Appellees Jackson County Memorial Hospital, William Wilson,
Jimmy King, and Angela Tovar.

Amy L. Alden, of Hudson & Alden, Oklahoma City, Oklahoma, for Defendants-
Appellees Fenton, Fenton, Smith, Reneau & Moon, Beverly Pearson, Jay
Chapman and Taylor Wyand.

Beverly S. Pearson, of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City,
Oklahoma, for Defendants-Appellees Jackson County Memorial Hospital, Trisha
Hasty, and Elaine Brown.

Linda Soper, Office of the Attorney General, Oklahoma City, Oklahoma, for
Defendants-Appellees Richard B. Darby and John Wampler.

Gary Underwood and Darren R. Cook, of Helms & Underwood, Oklahoma City,
Oklahoma, for Defendant-Appellee Philip L. Bohanon.

Michael R. Chaffin and John L. Blodgett, of Fleming, Frailey, Chaffin, Cordell,
Greenwood & Perryman LLP, Chickasaw, Oklahoma, for Defendant-Appellee
Mike Patterson.

Before SEYMOUR, BRISCOE and TYMKOVICH, Circuit Judges.

SEYMOUR, Circuit Judge.

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 Larry E. Beedle and Peggy Lee Korn, proceeding pro se, filed suit pursuant

to 42 U.S.C. § 1983 against Jackson County Memorial Hospital (Hospital),

several of the Hospital’s employees, an Oklahoma state court judge, a law firm

and several of the lawyers employed there, an Oklahoma state district attorney, a

local police chief, a private citizen, and the plaintiffs’ former attorney. Plaintiffs’

amended complaints alleged that several defendants violated Mr. Beedle’s rights

under the First Amendment of the U.S. Constitution by participating in the

malicious and wrongful filing of a state-court lawsuit against him for libel. Ms.

Korn claimed the Hospital and various Hospital employees violated her rights by

committing sexual battery against her, or permitting commission of the same,

while she was in the Hospital’s care as an inpatient. Mr. Beedle and Ms. Korn

also alleged that various defendants conspired to deprive them of their

constitutional rights. In addition, they raised a number of state law claims.

In five separate orders, the district court dismissed with prejudice each of

plaintiffs’ federal claims for failure to state a claim, pursuant to F ED . R. C IV . P.

12(b)(6). The court also dismissed without prejudice plaintiffs’ state law claims,

a ruling Mr. Beedle and Ms. Korn do not challenge on appeal. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291, affirm in part, reverse in part, and

remand.

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 I

We review de novo an order dismissing a complaint for failure to state a

claim for relief under Rule 12(b)(6), using the same standard applied by the

district court. See Ordinance 59 Ass’n v. United States Dep’t of Interior Sec’y,

163 F.3d 1150, 1152 (10th Cir. 1998). “We accept as true all well-pleaded facts,

as distinguished from conclusory allegations, and view those facts in the light

most favorable to the nonmoving party.” Maher v. Durango Metals, Inc., 144

F.3d 1302, 1304 (10th Cir. 1998). Dismissal of a complaint pursuant to Rule

12(b)(6) will be upheld only if “it appears beyond a doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). “The issue in reviewing the

sufficiency of a complaint is not whether the plaintiff will prevail, but whether

the plaintiff is entitled to offer evidence to support her claims.” Ruiz v.

McConnell, 299 F.3d 1173, 1181 (10th Cir. 2002). Because Mr. Beedle and Ms.

Korn are proceeding pro se, we review their pleadings liberally. Haines v.

Kerner, 404 U.S. 519, 520 (1972) (“We hold [pro se pleadings] to less stringent

standards than formal pleadings drafted by lawyers.”). Under these principles, the

plaintiffs alleged the following basic facts.

While hospitalized, Ms. Korn, who is blind, was allegedly a victim of

several incidents of sexual battery committed by Trisha Hasty, a nurse’s aid

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employed at the Hospital. As a result, Mr. Beedle and Ms. Korn wrote two letters

inquiring whether anyone else had experienced anything similar while at the

Hospital, and mailed the letters to numerous local residents. Based on the letters,

the Hospital sued Mr. Beedle in Oklahoma state court for libel. The case was

ultimately dismissed with prejudice after the Oklahoma Supreme Court held that

the Hospital was “a political subdivision of the State . . . and . . . therefore barred

from bringing an action for libel.” Beedle v. Darby, 996 P.2d 934, 934 (Okla.

2000) (citations omitted). Mr. Beedle and Ms. Korn subsequently filed the

underlying federal suit alleging their federal and state rights had been violated.

Additional facts relevant to our analysis will be discussed in the course of this

opinion.

On appeal, Mr. Beedle and Ms. Korn challenge the dismissal of their

federal claims. They also purport to appeal the district court’s denial of their

recusal motion but they have not presented any argument on appeal in support of

this claim. We therefore deem it waived. See Gross v. Burggraf Constr. Co., 53

F.3d 1531, 1547 (10th Cir. 1995). 1

1
In parsing through the plaintiffs’ filings before the district court and our
court on appeal, it appears Ms. Korn and Mr. Beedle collectively assert that their
First Amendment rights were violated by the Hospital’s malicious libel action
against Mr. Beedle and the alleged conspiratorial acts taken by the other
defendants to further the same. We note, however, that Ms. Korn lacks standing
as to her alleged First Amendment and associated claims. She was not named by
(continued...)

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 II

A. First Amendment claim against the Hospital, and William Wilson and
Jimmy King, in their official capacities

Mr. Beedle contends the Hospital violated his constitutional rights by filing

the malicious and wrongful state-court libel lawsuit against him, maintaining that

the libel suit was designed and intended to punish him for his speech and to chill

future speech. He alleges the Hospital knew or should have known that, as a

political subdivision, it was precluded from filing a malicious libel claim against

a private citizen. He asserts the Hospital acted through its policy makers, Mr.

Wilson and Mr. King, and therefore Mr. Wilson and Mr. King are liable in their

official capacities. 2 He also brings claims against Mr. Wilson and Mr. King in

their individual capacities, which we address separately below. The district court

dismissed Mr. Beedle’s claims, reasoning in part that Mr. Beedle failed “to point

to any custom or policy of defendants . . .” that would render them liable under §

1
(...continued)
the Hospital as a defendant in the underlying libel action and therefore cannot
point to any injury-in-fact as a result of the Hospital’s suit against Mr. Beedle.
See Loving v. Boren, 133 F.3d 771, 772-73 (10th Cir. 1998) (plaintiff required to
show injury-in-fact in order to have standing in First Amendment context).
Accordingly, the only claims we will address in regard to Ms. Korn are her sexual
assault claim against the Hospital and two of its employees and her challenge to
the state judge’s denial of her motion to intervene in the libel suit. We will
discuss all other claims only in terms of Mr. Beedle.
2
Mr. King served as the Executive Vice-President and Chief Operating
Officer of the Hospital. Mr. Wilson served as the Hospital’s Chief Executive
Officer.

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1983. Rec., vol. IV, doc. 154 at 4. The court also determined that when the

Hospital brought its state libel action against Mr. Beedle, it possessed a good-

faith basis for believing it was not a governmental entity and that “the law and

facts supported its claim.” Id. at 5.

In order to survive a Rule 12(b)(6) motion to dismiss a § 1983 claim, a

plaintiff must allege “(1) a violation of rights protected by the federal

Constitution or created by federal statute or regulation, (2) proximately caused (3)

by the conduct of a ‘person’ (4) who acted under color of any statute, ordinance,

regulation, custom[,] or usage, of any State or Territory or the District of

Columbia.” Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)

(quotation omitted). Here we must determine whether Mr. Beedle sufficiently

alleged the Hospital was a governmental entity and, pursuant to the official

actions taken by Mr. Wilson and Mr. King, proximately caused Mr. Beedle to

suffer a constitutional harm. As we discuss in depth below, Mr. Beedle’s

allegations are sufficient to meet the pleading standard articulated in Summum.

1. Hospital as governmental entity

First, we conclude the Hospital was a governmental entity for § 1983

purposes. “The ultimate issue in determining whether a person is subject to suit

under § 1983 is whether the alleged infringement of federal rights is ‘fairly

attributable to the state.’” Tarabishi v. McAlester Reg’l Hosp., 827 F.2d 648, 651

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(10th Cir. 1987) (Tarabishi I). The Hospital was created as a public trust

pursuant to O KLA . S TAT . A NN . tit. 60, § 176 et seq., and O KLA . S TAT . A NN . tit. 19,

§ 781 et seq. On at least three different occasions, our court has noted that under

Oklahoma law public trust and county hospitals, or the private entities who

contract with such hospitals to provide day-to-day services, are state actors for §

1983 purposes. See Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir. 1991); Milo

v. Cushing Mun. Hosp., 861 F.2d 1194, 1196-97 (10th Cir. 1988); Tarabishi I,

827 F.2d at 652. Moreover, as detailed in the Oklahoma Governmental Tort

Claims Act (GTCA), municipal and county hospitals created as public trusts are

deemed political subdivisions. See O KLA . S TAT . A NN . tit. 51, § 152(8)(d). The

GTCA specifically directs that a political subdivision includes

a public trust where the sole beneficiary or beneficiaries are a city, town,
school, school district or county. For purposes of The Governmental Tort
Claims Act, a public trust shall include a municipal hospital created
pursuant to Section 30-101 et seq. of Title 11 of the Oklahoma Statutes, a
county hospital created pursuant to Section 781 et seq. of Title 19 of the
Oklahoma Statutes, or is created pursuant to a joint agreement between
such governing authorities, that is operated for the public benefit by a
public trust created pursuant to section 176 et seq. of Title 60 of the
Oklahoma Statutes and managed by a governing board appointed or elected
by the municipality, county, or both, who exercises control of the hospital,
subject to the approval of the governing body of the municipality, county,
or both.

Id. When a hospital satisfies this definition, it is deemed a political subdivision

and, as a result, is not liable for harm arising from a variety of situations listed in

the GTCA. See O KLA . S TAT . A NN . tit. 51, § 155. As noted above, the Hospital

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falls within this definition and even invoked its status as a political subdivision to

challenge Mr. Beedle’s cross-petition for slander and emotional distress in the

state libel suit.

Indeed, in Beedle, the Oklahoma Supreme Court held that a public trust

hospital, and in particular the Hospital here, was “a political subdivision of the

State . . . and . . . therefore barred from bringing an action for libel.” 996 P.2d at

934 (quotation omitted). The Hospital has not challenged this ruling in any

manner. While limited in its analysis, the Beedle decision highlights that by

virtue of being designated a political subdivision, the Hospital stands on equal

footing with a municipality, school district, and other similar governmental units.

See O KLA . S TAT . A NN . tit. 51, § 152(8)(a)-(d). Just as action taken by such

entities constitutes state action under § 1983, so too does such action taken by

public trust hospitals. The Hospital is, therefore, a governmental entity subject to

liability under § 1983.

2. First Amendment forbids government malicious libel action

Given the Hospital’s status as a political subdivision, we must examine

whether the Hospital’s decision to bring the libel action against Mr. Beedle

violated his First Amendment rights. We have held that “government action

which chills constitutionally protected speech or expression contravenes the First

Amendment.” Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996) (citing Riley

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v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781, 794 (1988), and Gehl Group v.

Koby, 63 F.3d 1528, 1534 (10th Cir. 1995), implicitly overruled on other grounds

by Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001)). In Wolford, we

examined whether a plaintiff’s constitutional rights were violated by the

government’s prosecution of her, where she alleged the government’s action was

motivated in part to retaliate against her for exercising her First Amendment

rights. Id. We commented that “[i]n the context of a government prosecution, the

decision to prosecute which is motivated by a desire to discourage protected

speech or expression violates the First Amendment and is actionable under §

1983.” Id. We reasoned that a central question to be addressed in such an action

was “whether retaliation for the exercise of First Amendment rights was the

‘cause’ of the prosecution and the accompanying injuries to plaintiff.” Id. (citing

Rakovich v. Wade, 850 F.2d 1180, 1189 (7th Cir. 1988)). Likewise, in Gehl

Group, a controversy we characterized as a vindictive prosecution case brought in

retaliation against the plaintiffs’ exercise of their First Amendment rights, 63

F.3d at 1534, we noted that “the ultimate inquiry is whether as a practical matter

there is a realistic or reasonable likelihood of prosecutorial conduct that would

not have occurred but for the hostility or punitive animus towards the defendant

because he exercised his specific legal rights.” Id. at n.6. These cases make clear

that a governmental lawsuit brought with the intent to retaliate against a citizen

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for the exercise of his First Amendment rights is itself a violation of the First

Amendment and provides grounds for a § 1983 suit.

Moreover, Supreme Court authority suggests that governmental entities are

not permitted to bring libel actions against private citizens, at least without

alleging actual malice, and that allowing them to do so would be contrary to the

protections afforded to the citizenry by the First Amendment. 3 In N.Y. Times Co.

v. Sullivan, 376 U.S. 254 (1964), the Court noted that “[f]or good reason, no court

of last resort in this country has ever held, or even suggested, that prosecutions

for libel on government have any place in the American system of jurisprudence.”

Id. at 291 (internal quotations omitted). Likewise, in Rosenblatt v. Baer, 383 U.S.

75 (1966), the Court stated “the Constitution does not tolerate in any form” “the

spectre of prosecutions for libel on government.” Id. at 81; see also N.Y. Times

Co. v. United States, 403 U.S. 713, 724 (1971) (Douglas, J., with whom Black, J.,

joined, concurring) (“It is common knowledge that the First Amendment was

adopted against the widespread use of the common law of seditious libel to punish

the dissemination of material that is embarrassing to the powers-that-be.”); N.Y.

Times Co., 376 U.S. at 295 (Black, J., with whom Douglas, J., joined, concurring)

(“[A] State has no more power than the Federal Government to use a civil libel

3
It is worth noting that the Hospital never argued, either in the proceedings
below or before us on appeal, that a public entity is entitled to bring a libel action
– maliciously or otherwise – against a private citizen.

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law or any other law to impose damages for merely discussing public affairs and

criticizing public officials.”). In fact, the Oklahoma Supreme Court’s decision in

Beedle, although without much explanation, encapsulates the themes articulated

by the Supreme Court, as well as the law from our circuit, by holding that the

Hospital, as a political subdivision, was barred from suing Mr. Beedle for libel.

996 P.2d at 934.

Mr. Beedle’s amended complaint alleges that the Hospital’s libel suit was

maliciously brought to retaliate against him for his speech. His complaint asserts

that the Hospital initiated the original state law libel action with knowledge that

his statements against the Hospital were not made with malice and with the

purpose and effect of chilling his speech and violating his First Amendment

rights. See Supp. App. at 21 (CJ-99-56, Petition of Jackson County Memorial

Hospital, filed February 22, 1999, alleging defamation suit against Mr. Beedle);

id. at 3 (complaint alleging that Jackson County Memorial Hospital et al.

“conspired to commit an illegal and tortious act, the filing and maintaining of a

barred and illegal defamation lawsuit, knowingly, maliciously, and wrongfully;

with evidence that didn’t contain ‘actual malice,” which violated Plaintiffs’ First

Amendment free speech rights, and also violated the liberty clause of the

Fourteenth Amendment.”). We conclude, therefore, that Mr. Beedle has

sufficiently pled, for the purposes of surviving a 12(b)(6) motion, that the

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Hospital, as a governmental entity, violated his First Amendment rights by filing

the malicious libel action against him. 4

3. Official policy

Because the Hospital here is akin to a municipality, we must determine

whether the Hospital’s decision to sue Mr. Beedle for libel constituted an official

policy or custom. A municipality can only be liable under § 1983 if it took

“action pursuant to official municipal policy of some nature [that] caused a

4
Mr. Beedle’s claim could also be analyzed, for § 1983 purposes, under the
common law tort of malicious prosecution. See Heck v. Humphrey, 512 U.S. 477
(1994) (supporting availability of § 1983 cause of action for claims analogous to
malicious prosecution); Pierce v. Gilchrist, 359 F.3d 1279, 1285 (10th Cir. 2004)
(same, listing Tenth Circuit cases); Gehl Group v. Koby, 63 F.3d 1528, 1534 (10th
Cir. 1995) (framing § 1983 claim for First Amendment rights violation under the
tort of vindictive prosecution), implicitly overruled on other grounds by Currier
v. Doran, 242 F.3d 905, 916 (10th Cir. 2001). In order to survive an ordinary
motion to dismiss an action for malicious prosecution under Oklahoma law, the
burden rests on the plaintiff to allege (1) that the defendant maliciously instituted
the action; (2) without probable cause; (3) which the plaintiff successfully
defended; and (4) with resulting damage to the plaintiff. Callaway v. Parkwood
Village, L.L.C., 1 P.3d 1003, 1005 n.1 (Okla. 2000). A review of Mr. Beedle’s
complaint indicates he easily satisfies these elements. He alleges the Hospital’s
action against him was done with malice, and notes that the Hospital’s actions
have resulted in “an intentional infliction of emotional and mental stress causing
physical illness.” Supp. App. at 15. Likewise, the Hospital’s suit against Mr.
Beedle was terminated summarily and with prejudice in Mr. Beedle’s favor by the
Oklahoma Supreme Court. See Beedle v. Darby, 996 P.2d 934, 934 (Okla. 2000).
Finally, as discussed above, our case law makes clear the government cannot
lawfully initiate an action against a citizen in retaliation for the exercise of his
First Amendment rights. Mr. Beedle’s allegations that the Hospital maliciously
filed its libel action against him, without any evidence of actual malice on his
part, satisfies the pleading requirement that the Hospital’s action against him
lacked probable cause.

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constitutional tort.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). In

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), the Supreme Court further

developed the rule expressed in Monell, stating “[t]he ‘official policy’

requirement was intended to distinguish acts of the municipality from acts of

employees of the municipality, and thereby make clear that municipal liability is

limited to action for which the municipality is actually responsible.” Id. at 479.

The Court recognized, however, that “municipal liability may be imposed for a

single decision by municipal policy makers under appropriate circumstances.” Id.

at 480. But the Court emphasized that “[m]unicipal liability attaches only where

the decisionmaker possesses final authority to establish municipal policy with

respect to the action ordered.” Id. at 481. Nonetheless “[i]f the decision to adopt

that particular course of action is properly made by that government’s authorized

decisionmakers, it surely represents an act of official government ‘policy’ as that

term is commonly understood.” Id.

In providing further contours to the rules regarding municipal liability, the

Supreme Court has noted that “a plaintiff must show that the municipal action

was taken with the requisite degree of culpability and must demonstrate a direct

causal link between the municipal action and the deprivation of federal rights.”

Bd. of County Comm’rs v. Brown, 520 U.S. 397, 404 (1997). In this context,

“when an official municipal policy itself violates federal law, issues of culpability

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and causation are straightforward; simply proving the existence of the unlawful

policy puts an end to the question.” Barney v. Pulsipher, 143 F.3d 1299, 1307

(10th Cir. 1998).

Based on our review of the complaint, Mr. Beedle has made a colorable

claim that Mr. Wilson and Mr. King were official policy makers for the Hospital

and that they made the final decision to file the state libel case against him. The

complaint identified Mr. Wilson as the CEO of the Hospital and Mr. King as its

COO, positions which indicate they have final decision-making authority for the

Hospital. Rec., vol. II, doc. 83 at 2. The complaint also averred that Mr. Wilson

and Mr. King, as the Hospital’s executives, filed the state libel action against Mr.

Beedle. Id. at 14. Defendants do not contend otherwise. Any decision made by

Mr. Wilson and Mr. King on behalf of the Hospital to sue Mr. Beedle would have

been the “‘moving force’ behind” the claimed violation of Mr. Beedle’s First

Amendment rights. Bd. of County Comm’rs, 529 U.S. at 404; Barney, 143 F.3d at

1307. We conclude, therefore, that Mr. Beedle’s complaint is sufficient to state a

claim against the Hospital and its policy makers for the infringement of his First

Amendment rights. See, e.g., Wilson v. Civil Town of Clayton, 839 F.2d 375, 382

(7th Cir. 1988) (allegations in pro se complaint that town trustees conspired to

have plaintiff’s landlord evict him from his business property were sufficient to

allege official policy and impose § 1983 liability on town); Lott v. Andrews Ctr.,

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259 F. Supp. 2d 564, 574 (E.D. Tex. 2003) (complaint sufficiently alleged that

decision by community health center CEO to terminate employee for failure to

drop criminal charges against co-worker was official policy made by final

decisionmaker); Palmer v. City of Monticello, 731 F. Supp. 1503, 1509 (D. Utah

1990) (single decision to discharge police officer “may fall within the rubric of

official policy,” thereby barring a motion to dismiss).

4. Good faith defense unavailing

The Hospital nonetheless contends it is not liable because at the time it

filed its state suit and opposed Mr. Beedle’s various motions to dismiss, the

Hospital had a good-faith basis for believing it was not a governmental entity for

§ 1983 purposes and thus was not precluded from bringing a libel action. 5 This

contention approximates a qualified immunity defense in that the Hospital claims

a reasonable official would not have known its actions violated a clearly

established federal right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Such an argument is misplaced because a governmental entity may not assert

qualified immunity from a suit for damages. Owen v. City of Independence, 445

5
As previously noted, see note 3 supra, the Hospital never contends that it
had a good-faith basis for believing it was entitled to bring either a libel or a
malicious libel action against Mr. Beedle even if it were a public entity. The
Hospital simply maintains it was not clearly established that county hospitals were
governmental entities for all purposes and it proceeded in its suit with a good
faith belief in the merits of that position.

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U.S. 622, 654, 657 (1980); Cannon v. City & County of Denver, 998 F.2d 867,

877 n.9 (10th Cir. 1993). A qualified immunity defense is only available to

parties sued in their individual capacity. Moore v. City of Wynnewood, 57 F.3d

924, 929 n.4 (10th Cir. 1995). Therefore, the Hospital’s good faith argument

cannot prevail.

Mr. Beedle’s allegations against the Hospital and Mr. Wilson and Mr. King

in their official capacities were thus sufficient to withstand a Rule 12(b)(6)

motion to dismiss his First Amendment claim. In reversing the district court’s

ruling on this issue, however, we express no opinion on whether Mr. Beedle can

prevail on this § 1983 claim. We hold only that it should not have been dismissed

pursuant to Rule 12(b)(6) and remand this portion of Mr. Beedle’s action to the

district court for further proceedings.

B. First Amendment claim against Mr. Wilson and Mr. King, in their
individual capacities

Mr. Beedle also sued Mr. Wilson and Mr. King in their individual

capacities for the alleged injury caused to him by the Hospital’s malicious libel

suit. In dismissing these claims, the district court held that Mr. Wilson and Mr.

King were entitled to qualified immunity. We disagree.

When faced with a qualified immunity defense, the plaintiff must establish

“(1) that the defendant’s actions violated a federal constitutional or statutory

right; and (2) that the right violated was clearly established at the time of the

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defendant’s actions.” Greene v. Barrett, 174 F.3d 1136, 1142 (10th Cir. 1999).

Our discussion in the previous section indicates the first prong of the qualified

immunity analysis has been satisfied by Mr. Beedle’s allegations that the

Hospital, through the actions of Mr. Wilson and Mr. King, violated Mr. Beedle’s

First Amendment rights by bringing the malicious libel action against him.

Similarly, at the time Mr. Wilson and Mr. King brought the Hospital’s libel action

against Mr. Beedle, there was ample law clearly establishing the Hospital was a

governmental entity barred from filing such a suit.

A right is clearly established if “[t]he contours of the right [are] sufficiently

clear that a reasonable official would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The challenged

action need not have been previously declared unlawful, but its unlawfulness must

be evident in light of pre-existing law. Greene, 174 F.3d at 1142. “This is

generally accomplished when there is controlling authority on point or when the

clearly established weight of authority from other courts supports plaintiff’s

interpretation of the law.” Id.

In concluding defendants in this case were entitled to qualified immunity,

the district court noted in part that “it was not clearly established at the time [the

Hospital] filed its claim for libel against [Mr.] Beedle that [the Hospital] was a

governmental entity that was not entitled to bring a claim for libel.” Rec., vol.

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IV, doc. 154 at 4. The court went on to state that “[a]t the time the [libel] lawsuit

was filed, there was no Oklahoma decision determining that county hospitals

defined as public trusts under the Governmental Tort Claims Act, would be

considered a governmental entity for all purposes.” Id. The court’s statement,

and the Hospital’s arguments supporting the same, miss the point.

At the time the Hospital filed its libel action, the law was clear in our

circuit that a public trust hospital in Oklahoma was a governmental actor pursuant

to § 1983 regardless of its designation as a political subdivision under the GTCA.

Thus, in Tarabishi I, 827 F.2d at 651-52, we held that a public trust hospital

created pursuant to O KLA . S TAT . A NN . tit. 60, § 176 et seq., was an agency of the

state, and therefore could be sued under § 1983. Our ruling was not predicated on

or influenced by the hospital’s status under the GTCA. In fact, at the time

relevant to our decision in Tarabishi I, public trust hospitals were excluded from

the GTCA. See Tarabishi v. McAlester Reg’l Hosp., 951 F.2d 1558, 1566 (10th

Cir. 1991) (Tarabishi II). Subsequent cases from our court have held, with

relative little fanfare, that public trust and county hospitals are properly deemed

state actors for § 1983 purposes. See Carnes, 922 F.2d at 1509; Milo, 861 F.2d at

1196-97. All of these cases were decided before the conduct at issue here. We

are therefore not convinced the lack of state case law stating that political

subdivisions under the GTCA would be treated as governmental entities in all

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instances bears much import. Tenth Circuit case law had already established that

public trust hospitals, regardless of their GTCA status, can be liable as state

actors under § 1983.

Nor are we persuaded that our ruling in Tarabishi II gives rise to the

implication that there may be instances where a political subdivision under the

GTCA might not always be treated as a state actor under § 1983, as the Hospital

advocates and the district court concluded. In Tarabishi II, 951 F.2d at 1563, we

examined in part whether the same defendant hospital we deemed a state actor for

§ 1983 purposes in Tarabishi I could claim immunity as a “special function

governmental unit” under Oklahoma’s Local Government Antitrust Act (LGAA).

We rejected the hospital’s claim for immunity, noting that the LGAA did not

include within its rubric public trust hospitals. Id. at 1564. We also noted that, at

the time relevant to the case, the GTCA explicitly excluded public trust hospitals

from protections afforded to political subdivisions. Id. at 1567. We therefore

concluded the defendants could not claim immunity as a “special function

governmental unit” under the LGAA. Id. So doing, we rejected the hospital’s

argument that because we had deemed the hospital a state actor in Tarabishi I, it

should be entitled to immunity under the LGAA. Instead, we determined our

decision in Tarabishi I was not “dispositive of whether . . . the Hospital . . . [was]

entitled to immunity as . . . a special function governmental unit.” Id. at 1565

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n.6.

Relying on our rulings from the Tarabishi cases, the Hospital contends it

had reason to believe that even if it was considered a political subdivision under

the GTCA, it might not always be deemed a governmental entity for all purposes.

Tarabishi I and II do not support this contention. Rather, these cases instruct that

even though a public trust hospital may not be designated as a political

subdivision under a specific state statute, the lack of such status does not bar the

hospital’s designation as a state actor under § 1983.

In sum, we do not agree with the district court’s ruling that at the time the

Hospital brought its suit for libel against Mr. Beedle, it was not clearly

established that the Hospital was a governmental entity. Our cases had made

clear that a public trust hospital in Oklahoma is deemed a governmental entity for

§ 1983 purposes. Similarly, as discussed in the previous section, ample authority

had made clear that the filing of a malicious libel action by a governmental entity

against a citizen contravenes the First Amendment of the United States

Constitution. These two series of cases demonstrate it was clearly established

when the Hospital filed its suit against Mr. Beedle that the Hospital was a

governmental entity barred from bringing a malicious libel action. Consequently,

the district court erred in dismissing the claims against Mr. Wilson and Mr. King

in their individual capacities on qualified immunity grounds.

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C. Conspiracy claim against Angela Tovar

Ms. Tovar received one of Mr. Beedle’s letters regarding the alleged harm

suffered by Ms. Korn while a patient at the Hospital. Ms. Tovar and Mr. Beedle

subsequently had a telephone conversation in which Mr. Beedle told her he

authored the letters she had received. Mr. Beedle alleges that Ms. Tovar

conspired to violate his constitutional rights by submitting an affidavit stating that

upon her receipt of one of the letters, she and Mr. Beedle had a telephone

conversation in which he reported he was the letter’s author and the hospital

referred to in the letter was Jackson County Memorial Hospital. Mr. Beedle

maintains that Ms. Tovar intended to help the other defendants file the libel

lawsuit and thereby became a co-conspirator with the Hospital. 6

As a private citizen, Ms. Tovar can be held liable under § 1983 only if she

was a “willful participant in joint action with the State or its agents.” Dennis v.

Sparks, 449 U.S. 24, 27 (1980). Mr. Beedle does not allege that Ms. Tovar

exerted influence over the Hospital, that her judgment was substituted for that of

the Hospital, or that she even participated in the decision to file the libel suit. Cf.

Gallagher v. “Neil Young Freedom Concert,” 49 F.3d 1442, 1453-55 (10th Cir.

1995) (collecting cases discussing § 1983 liability for private citizens). His

6
Mr. Beedle has abandoned on appeal his claim that Ms. Tovar violated 18
U.S.C. § 2511(1)(a)-(c) (prohibiting disclosure of telephone communications).

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allegations are insufficient to state a claim for relief against Ms. Tovar, and the

district court correctly dismissed the complaint against her.

D. Conspiracy claim against Philip Bohanon

Mr. Beedle also alleges that Mr. Bohanon, his former attorney, conspired

with the Hospital and others to violate his constitutional rights. As a private

actor, Mr. Bohanon cannot be held liable under § 1983 for conspiracy unless he

participated in state action. Dennis, 449 U.S. at 27. Like the allegations against

Ms. Tovar, Mr. Beedle’s charges against Mr. Bohanon fail to establish that he

influenced or even assisted the Hospital or anyone else in filing the libel suit.

Accordingly, we agree with the district court’s dismissal of the complaint against

Mr. Bohanon.

E. Claim against The Honorable Richard B. Darby

Judge Darby presided over the state libel lawsuit. Mr. Beedle maintains

that because the Oklahoma Supreme Court ultimately held the Hospital was barred

from bringing an action for libel, Judge Darby acted without authority and is

liable under § 1983.

Federal courts have “consistently adhered to the rule that judges defending

against § 1983 actions enjoy absolute immunity from damages liability for acts

performed in their judicial capacities.” Id. (quotation omitted). A judge is

immune from suit if he had subject matter jurisdiction over the alleged action.

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Stump v. Sparkman, 435 U.S. 349, 355-56 (1978). “A judge will not be deprived

of immunity because the action he took was in error, was done maliciously, or

was in excess of his authority; rather, he will be subject to liability only when he

has acted in the clear absence of all jurisdiction.” Id. at 356-57 (quotation

omitted).

Mr. Beedle does not challenge the district court’s holding that Judge Darby

served as a judge of a court of general jurisdiction which had the power to decide

the instant controversy. The Oklahoma Supreme Court’s decision to direct Judge

Darby to dismiss the libel suit was not a decision that he acted in the clear

absence of all jurisdiction. Accordingly, Judge Darby is entitled to absolute

judicial immunity and we affirm the district court’s dismissal of the complaint

against him. 7

F. Conspiracy claims against John Wampler and Mike Patterson

Mr. Beedle claims that District Attorney Wampler and Police Chief

7
Ms. Korn alleges her federal rights were violated when Judge Darby
refused to permit her to intervene as a party in the libel suit. In similar fashion to
our determination that Ms. Korn lacks standing to seek redress from the
Hospital’s decision to filed the state libel action, see supra note 1, we hold that
Ms. Korn has failed to sufficiently identify a federal right that was violated as a
result of the denial of her motion to intervene. Moreover, this court will not
interfere in the decisions of a state court. See Johnson v. Rodrigues (Orozco),
226 F.3d 1103, 1107-08 (10th Cir. 2000) (explaining that a federal court generally
does not have jurisdiction over challenges to state court proceedings). Ms. Korn
thus failed to state a claim against Judge Darby and the district court correctly
dismissed her action in this regard.

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Patterson conspired to violate his constitutional rights by aiding and abetting the

Hospital in filing the libel suit. He further alleges that Mr. Wampler and Mr.

Patterson had a duty to intervene and stop the Hospital from filing the action.

Liability under § 1983 requires personal participation in the unlawful acts.

Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Mr. Beedle failed to

allege any facts showing that Mr. Wampler and Mr. Patterson participated in a

conspiracy or acted improperly in any way. Moreover, Mr. Beedle’s duty to

intervene argument is without merit. The district court correctly dismissed the

claims against Mr. Wampler and Mr. Patterson.

G. Constitutional and conspiracy claims against the law firm and individual
attorneys employed there

Mr. Beedle also sued the firm of Fenton, Fenton, Smith, Reneau and Moon,

as well as a number of individual attorneys employed there. He claims that these

defendants, by filing and prosecuting the libel suit on behalf of the Hospital,

violated his constitutional rights and participated in a conspiracy to violate the

same.

Because the attorney defendants are private actors, Mr. Beedle can only

state a cognizable §1983 claim against them if he adequately alleges that these

defendants conspired with the Hospital to violate his federal rights. See Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (liability under § 1983

requires showing that deprivation of federal right was committed under color of

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state law). “The conduct of an attorney acting in his professional capacity while

representing his client does not constitute action under color of state law for the

purposes of § 1983.” Goetz v. Windsor Cent. School Dist., 593 F. Supp. 526, 528

(N.D.N.Y. 1984). Likewise, when a plaintiff attempts to assert the state action

required for a § 1983 claim against private actors based on a conspiracy with

government actors, “mere conclusory allegations with no supporting factual

averments are insufficient.” Sooner Prods. Co. v. McBride, 708 F.2d 510, 512

(10th Cir. 1983). Rather, the plaintiff must specifically plead “facts tending to

show agreement and concerted action.” Id.

Mr. Beedle bases his conspiracy claims against the defendant law firm and

its attorneys on a variety of factors: the length of time the state libel suit was

pending before it was dismissed, his view that these defendants had access to

unlimited legal research, and his opinion that the defendants could have instituted

checks to insure that the suit was not filed. At most, Mr. Beedle’s complaint

alleges the law firm provided inadequate professional services to the Hospital,

and was potentially slow in its litigation of the case. However, “[t]here is no

allegation that [the firm had] a direct interest in this lawsuit or . . . was acting in

any capacity other than as . . . privately retained [counsel].” Goetz, 593 F. Supp.

at 528-29. Mr. Beedle’s allegations, even if true, are insufficient to state a § 1983

claim for conspiracy. Accordingly, we affirm dismissal of the complaint against

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the attorney defendants and law firm.

H. Sexual assault claim against the Hospital, Trisha Hasty and Elaine Brown

Ms. Korn alleges that Ms. Hasty, a nurse’s aid, committed several sexual

batteries against her while she was an inpatient at the Hospital and that Ms.

Brown, a nurse, is liable for those injuries due to her negligence and lack of

vigilance. Ms. Korn also apparently contends that the Hospital is equally

responsible for Ms. Hasty’s alleged acts. Ms. Korn asserts that the assaults

violated her federal rights to equal protection, privacy, bodily integrity, and due

process.

In order for the Hospital to be liable to Ms. Korn for Ms. Hasty’s alleged

sexual assaults, Ms. Korn must be able to point to the existence of an official

policy or custom of the Hospital that resulted in constitutional harm to Ms. Korn.

Monell, 436 U.S. at 691. “The official policy requirement [is] intended to

distinguish acts of the municipality from acts of employees of the municipality,

and thereby make clear that municipal liability is limited to action for which the

municipality is actually responsible.” Pembaur, 475 U.S. at 479 (quotations

omitted). Likewise, to the extent Ms. Korn alleges that Ms. Brown, in possessing

some form of supervisory authority over Ms. Hasty, should be liable for the

alleged harms suffered by Ms. Korn, we note that “there is no concept of strict

supervisor liability under section 1983.” Jenkins v. Wood, 81 F.3d 988, 994 (10th

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Cir. 1996) (quotation and citation omitted). In order to impose supervisor

liability under § 1983, “it is not enough for a plaintiff merely to show a defendant

was in charge of other state actors who actually committed the violation.” Id.

Rather, “the plaintiff must establish a deliberate, intentional act by the supervisor

to violate constitutional rights. A plaintiff may satisfy this standard by showing

the defendant-supervisor personally directed the violation or had actual

knowledge of the violation and acquiesced in its continuance.” Id. at 994-95

(quotations and citations omitted).

Ms. Korn’s allegations do not satisfy these standards. With regard to the

Hospital, neither Ms. Korn’s original complaint nor amended complaint

“identif[ied] a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”

Bd. of County Comm’rs, 520 U.S. at 403. The district court did not err in

granting the Hospital’s motion to dismiss Ms. Korn’s sexual assault claims.

Likewise, Ms. Korn’s allegations against Ms. Brown are insufficient.

While a liberal reading of Ms. Korn’s complaint might allow for the inference

that Ms. Brown served in some sort of supervisory capacity over Ms. Hasty, the

complaint does not allege Ms. Brown engaged in any intentional or deliberate acts

against Ms. Korn, or that she “personally directed the violation or had actual

knowledge of the violation and acquiesced in its continuance.” Jenkins, 81 F.3d

at 995. At most, Ms. Korn’s complaint can be read to allege that Ms. Brown was

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the supervisor of the Hospital’s Skilled Nursing Unit; that Ms. Hasty assisted Ms.

Brown in the unit during the same hours Ms. Brown worked; and that Ms. Brown

“was present, in charge, and working with [Ms. Hasty]” on the dates on which

Ms. Korn allegedly was sexually assaulted. Rec., vol. II, doc. 83 at 14. These

allegations are insufficient to state a claim against Ms. Brown.

Nor are Ms. Korn’s allegations sufficient to state a claim against Ms.

Hasty. In West v. Atkins, 487 U.S. 42 (1988), the Supreme Court stated “[i]t is

firmly established that a defendant in a § 1983 suit acts under color of state law

when [she] abuses the position given to [her] by the State while . . . exercising

[her] responsibilities pursuant to state law.” Id. at 49-50. We have recognized “it

is well settled that an otherwise private tort is not committed under color of law

simply because the tortfeasor is an employee of the state.” Jojola v. Chavez, 55

F.3d 488, 493 (10th Cir. 1995) (citation and quotation omitted). “[I]t is the

plaintiff’s burden to plead, and ultimately establish, the existence of ‘a real

nexus’ between the defendant’s conduct and the defendant’s ‘badge’ of state

authority in order to demonstrate action was taken ‘under color of state law.’” Id.

at 494. Ms. Korn has failed to meet this burden.

The question is whether Ms. Hasty exercised power “possessed by virtue of

state law and made possible only because [she] is clothed with the authority of

state law.” West, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299,

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326 (1941)). Ms. Korn’s complaint alleged Ms. Hasty was a nurse’s aid employed

at the hospital where Ms. Korn received treatment; that Ms. Hasty served on the

11 p.m. to 7 a.m. shift; and that on five separate occasions at approximately 1:15

a.m., Ms. Hasty sexually assaulted Ms. Korn when she was particularly vulnerable

due to heavy sedation as a result of the medications she had been prescribed.

These alleged facts, while abhorrent, do not establish that Ms. Hasty, in sexually

assaulting Ms. Korn, was in any way exercising “state-derived authority over

her.” Whitney v. New Mexico, 113 F.3d 1170, 1174 (10th Cir. 1997). Instead,

they merely suggest Ms. Hasty engaged in conduct wholly unrelated to her duties

and authority as a nurse’s aid, conduct that could have been done by anyone who

wandered into Ms. Korn’s room. There was no allegation, for example, that Ms.

Hasty was the one who heavily sedated Ms. Korn to enable her to carry out the

alleged assault. Because Ms. Korn failed to sufficiently allege facts required for

a § 1983 claim – that Ms. Hasty, while acting under color of state law, violated

her constitutional rights, the district court properly dismissed the claims against

Ms. Hasty.

For the foregoing reasons, we REVERSE the district court’s dismissal of

Mr. Beedle’s First Amendment claims against the Hospital and against Mr.

Wilson and Mr. King, in their official and individual capacities, and REMAND

these claims for further proceedings consistent with this opinion. We AFFIRM

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with respect to all other claims dismissed by the district court. 8

8
Mr. Beedle and Ms. Korn filed five separate reply briefs, contrary to F ED .
R. A PP . P. 28(c), and they request the court’s permission to file them all. We deny
their motion because they have not demonstrated they could not reply adequately
by filing a single reply brief. In any event, we have no doubt that we have
comprehended fully Mr. Beedle’s and Ms. Korn’s arguments and authorities.
Similarly, we deny as moot Mr. Beedle’s and Ms. Korn’s “Motion to
Reverse, Vacate, and/or Remand.” We accept Mr. Patterson’s separate answer
brief and the two briefs filed by the Hospital, one addressing the First
Amendment Claims and the other addressing sexual battery matters. All other
pending motions are denied.

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