Appellate Case: 24-6194 Document: 40-1 Date Filed: 10/09/2025 Page: 1

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

FOR THE TENTH CIRCUIT October 9, 2025

Plaintiff - Appellant

v. No. 24-6194
(D.C. No. 5:22-CV-00613-G)
CHRISTOPHER D. INCE; RACHAEL S. (W.D. Okla.)
INCE; HOWARD P. PAYNE; SUE A.
PAYNE,

Defendants - Appellees,

and

BOARD OF COUNTY
COMMISSIONERS OF GARVIN
COUNTY, OKLAHOMA; LORI FULKS,
Clerk of Garvin County, Oklahoma, in her
official capacity,

Defendants.
_________________________________

ORDER AND JUDGMENT *

Before HOLMES, Chief Judge, TYMKOVICH, and MORITZ, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
*

unanimously to honor 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
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 This order and judgment is not binding precedent,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.
 Appellate Case: 24-6194 Document: 40-1 Date Filed: 10/09/2025 Page: 2

_________________________________

Gwen Witherspoon appeals the district court’s dismissal, pursuant to

Fed. R. Civ. P. 12(b)(1), of her 42 U.S.C. § 1983 action against Christopher and

Rachel Ince and Howard and Sue Payne (collectively, the “Landowners”).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND 1

Witherspoon owns land in Garvin County, Oklahoma. The Landowners own

an adjoining parcel of land. The Landowners, by use of three Oklahoma statutes—

Okla. Stat. tit. 27, § 6; Okla. Stat. tit. 66, § 53; and Okla. Stat. tit. 69, § 1201—sought

“to take a twenty-foot road easement on the west side of the Witherspoon parcel by

eminent domain for their private use.” Aplt. App. at 11, ¶ 12. State court

proceedings related to this attempted taking are still ongoing. Id. at 25, ¶ 70.

Witherspoon argues the Oklahoma takings statutes are unconstitutional under the

Fifth and Fourteenth Amendment.

Witherspoon sued the Landowners, the Garvin County Board of County

Commissioners, and the Garvin County Clerk in federal court under § 1983.

The district court dismissed the claims against the Board and the Clerk under

Fed. R. Civ. P. 12(b)(6). In two later, near-identical orders, the court dismissed the

claims against the Landowners under Rule 12(b)(1) on the basis that the Landowners

1
The facts we recite here come from Witherspoon’s Amended Complaint, the
well-pleaded allegations of which we take as true in analyzing a motion to dismiss
under Rule 12(b)(1). See Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4
(10th Cir. 2015).

2
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were not acting “‘under color of state law,’” which is “‘a jurisdictional requisite for

a § 1983 action.’” See Aplt. App. at 191, 198 (each quoting West v. Atkins, 487 U.S.

42, 48 (1988), and Polk Cnty. v. Dodson, 454 U.S. 312, 315 (1981)). Witherspoon

appeals the dismissal of the Landowners. 2

DISCUSSION

We review issues of subject-matter jurisdiction de novo. See U.S. ex rel. Stone

v. Rockwell Int’l Corp., 282 F.3d 787, 797 (10th Cir. 2002). When reviewing a

Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction which, as this

one did, takes the form of a facial attack, we “accept as true the factual allegations of

the Complaint.” Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4

(10th Cir. 2015).

Section 1983 creates civil liability for “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes

to be subjected, any citizen of the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983

(emphasis added). “The traditional definition of acting under color of state law

requires that the defendant in a § 1983 action have exercised power possessed by

virtue of state law and made possible only because the wrongdoer is clothed with the

authority of state law.” West, 487 U.S. at 49 (internal quotation marks omitted).

We granted Witherspoon’s motion to dismiss the Board and the Clerk as

Appellees.

3
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The Amended Complaint, though, acknowledged the Landowners were

“private persons.” Aplt. App. at 10, ¶ 2. Indeed, their status as private persons is one

basis for Witherspoon’s argument that Okla. Stat. tit. 27, § 6, by permitting takings

for private use, violates the Fifth Amendment. See id. at 31, ¶ 92. Witherspoon,

though, argues the Landowners are liable under § 1983 on two bases: first, she

argues the Landowners’ use of the Oklahoma statutes constitutes state action because

eminent domain is traditionally a public function the state exercises. Second, she

argues the Landowners’ private condemnation action amounted to joint action with

the state.

A. “Public Function”

We first reject Witherspoon’s contention that the Landowners are state actors

because private condemnation is a power traditionally exercised by the state. We

have held that “[i]f the state delegates to a private party a function traditionally

exclusively reserved to the State, then the private party is necessarily a state actor.”

Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1456 (10th Cir. 1995)

(internal quotation marks and citation omitted) (emphasis added). But “[t]his test is

difficult to satisfy.” Id. “While many functions have been traditionally performed by

governments, very few have been exclusively reserved to the State.” Flagg Bros.,

Inc. v. Brooks, 436 U.S. 149, 158 (1978) (internal quotation marks omitted).

The power of eminent domain, as the Oklahoma state constitution delimits it,

is not such a public function. Oklahoma’s constitution expressly allows takings “for

private ways of necessity . . . in such manner as may be prescribed by law.”

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Okla. Const. art. II, § 23. The manner prescribed by law is set forth in one of the

Oklahoma statutes Witherspoon seeks to challenge here—Okla. Stat. tit. 27, § 6—

which provides, in relevant part: “Any private person, firm or corporation shall have

power to exercise the right of eminent domain . . . for private ways of necessity . . . .”

(emphasis added). So the district court did not err in concluding Witherspoon failed

to show the Landowners were performing a public function that would render them

reachable under § 1983.

B. “Joint Activity”

The Supreme Court “has held that if a private party is a willful participant in

joint activity with the State or its agents, then state action is present.” Gallagher,

49 F.3d at 1447 (internal quotation marks omitted). But in the course of determining

the reach of the joint activity doctrine under § 1983, we have also held “[a] private

individual does not engage in state action simply by availing herself of a state

procedure.” Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000).

Witherspoon does not address Scott in either her opening brief or her reply

brief. To the contrary, she asserts the district court “pass[ed] over facts of joint

action alleged in the Amended Complaint.” Aplt. Reply Br. at 5. But each of the

“facts of joint action” she points out—the commissioning of appraisers; the payment

of the appraised value of the condemned property; and various notices, amendments,

pleadings, motions, and exceptions in accompanying state proceedings—is an

example of private availment of Oklahoma’s procedures. See id. at 5–6.

Witherspoon challenges the fairness and constitutionality of those procedures, but

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such challenges (whatever their merit) do not render the Landowners liable under

§ 1983.

Because the Landowners’ use of Oklahoma’s private condemnation statutes

did not constitute the exercise of a public function or a joint action with the state, the

district court correctly dismissed Witherspoon’s § 1983 action against them.

CONCLUSION

We affirm the judgment of the district court.

Entered for the Court

Timothy M. Tymkovich
Circuit Judge