Generally a private party's use of civil enforcement procedures does not constitute state action. See Steele v. Stephan, 633 F.Supp. 950 (D.Kan. 1986). In any event, whether it is premised on the limited actions of Officer Evans or the more extensive acts of process server King, the Rowells' ยง 1983 claim cannot survive against the Klaus defendants because of the wholly conclusory nature of the conspiracy allegations raised by the Rowells as to the Klauses.
The Supreme Court and the lower courts have substantially limited the expansive language of Lugar. See, e.g., Lugar, 457 U.S. at 939 n. 21, 102 S.Ct. at 2755 n. 21; Read v. Klein, 2001 WL 20818, at *6 (10th Cir. Jan 9, 2001) citing 1 Martin A. Schwartz ยง John E. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees, ยง 5.14, at 291 (2d ed. 1998) (noting the careful limitation of the Lugar test to prejudgment seizure of property); Steele v. Stephan, 633 F.Supp. 950, 952 (D. Kan. 1986); Long v. Citizens Bank Trust Co. of Manhattan, 563 F.Supp. 1203, 1215, (D. Kan. 1983). In Lugar itself, the Supreme Court stated that: "[w]e do not hold today that `a private party's mere invocation of state legal procedures constitutes "joint participation" or "conspiracy with state officials satisfying the ยง 1983 requirement of action under color of law'.
The Kansas Attorney General is the "chief law officer of the state" and therefore is entitled to the same immunity under the Eleventh Amendment as the State itself. See State v. Finch, 280 P. 910, 911 (1929); Kan. Stat. Ann. ยงยง 75-702, 708 (2013); see also Steele v. Stephan, 633 F. Supp. 950, 953-54 (D. Kan. 1986) (Kansas Attorney General immune from Section 1983 suit when sued in his official capacity). Maley also moves for leave to proceed IFP on this appeal.
His office is an arm of the State and therefore entitled to Eleventh Amendment immunity. See Steele v. Stephan, 633 F. Supp. 950, 953-54 (D.Kan. 1986). Second, we also believe that the Oklahoma Department of Health is an arm of the State.
As an employee of the state acting in the course of her duty to the state, Willoughby is generally entitled to the same Eleventh Amendment immunity as her state employer because the Attorney General's office is regarded as an arm of the state.Steele v. Stephen, 633 F.Supp. 950, 954 (D. Kan. 1986). Here, Goico does not allege that Willoughby has done anything outside of acting in her official capacity as a state employee for the duration of her interactions with him.
The Kansas Attorney General is an "arm of the state" and is entitled to the same immunity as is the State itself. See State v. Finch, 128 Kan. 665 (1929); K.S.A. ยงยง 75-702; 75-708 (stating the Kansas Attorney General is state's chief law officer, subject only to direction of Governor or either branch of Legislature); Steele v. Stephan, 633 F.Supp. 950, 953-54 (D.Kan. 1986) (finding Kansas Attorney General immune from suit within his official capacity). Cf, Meade v. Grubbs, 841 F.2d 1512, 1525 -1526 (10th Cir. 1988) (finding Oklahoma Attorney General entitled to Eleventh Amendment immunity). Because the Plaintiff has sued the Attorney General in his official capacity, and no waiver or abrogation of immunity is suggested, neither the State of Kansas nor its Attorney General can be sued for damages in this court.
Similarly, the Meade court cited to a district court opinion similarly holding that the Kansas AG in his official capacity was protected by the Eleventh Amendment in a suit for damages. See Steele v. Stephan, 633 F. Supp. 950, 953-54 (D. Kan. 1986). Plaintiff has been unable to demonstrate why these authorities are not on point. I therefore hold that the New Mexico AGO and the officer defendants in their official capacities are entitled to Eleventh Amendment immunity.
(Emphasis added.) Resolution Trust Corp. v. Levitt, 8th Dist. Cuyahoga No. 61018, 1992 WL 181714, *2 (July 30, 1992), citing Miller v. Cudahy Co., 656 F.Supp. 950 (D.Kan.1987); Steele v. Stephan, 633 F.Supp. 950 (D.Kan.1986); Gonzales v. Union Carbide Corp., 580 F.Supp. 249 (N.D.Ind. 1983). Thus, appellants' motion, which was filed prior to appellee's motion for default judgment, was not untimely filed.