Calling the Police Does Not Make a Private Retailer a State Actor: VanHorn v. Salvation Army (10th Cir. May 7, 2026)

1. Introduction

In VanHorn v. Salvation Army, Christopher A. VanHorn (pro se) sued the Salvation Army store and its employees, multiple City of Mission police officers, a municipal judge, a city prosecutor, and the City itself after a mask-policy dispute at a Salvation Army store led to his arrest and subsequent Kansas convictions for disorderly conduct and criminal trespass.

The federal suit asserted numerous federal civil-rights theories (including claims under 42 U.S.C. §§ 1983 and 1985(3) and the Declaratory Judgment Act) plus state-law claims. The U.S. District Court for the District of Kansas dismissed the federal claims without prejudice and declined supplemental jurisdiction over the state claims. The Tenth Circuit affirmed.

Key issues on appeal included: (i) whether diversity jurisdiction independently required the federal court to hear state-law claims after the federal claims were dismissed; (ii) whether the district court erred in treating a Rule 12(c) motion as functionally a Rule 12(b)(6) motion; (iii) whether the Salvation Army defendants could be treated as state actors (or conspirators with state actors) based on calling police and seeking enforcement; and (iv) whether a due-process theory could proceed against a municipal judge and prosecutor given absolute immunity.

2. Summary of the Opinion

  • Diversity jurisdiction: The court held the complaint did not plausibly establish the amount in controversy for diversity jurisdiction; therefore, dismissal of state claims (without prejudice) after the federal claims fell was not error.
  • Rule 12(c) vs. 12(b)(6): Any technical prematurity of the Mission Defendants’ Rule 12(c) motion was harmless because Rule 12(c) is analyzed under the same standard as Rule 12(b)(6), and the pleading-closure issue did not affect the substance.
  • § 1985(3) conspiracy and § 1983 state action (Salvation Army defendants): The court held that calling police and providing information—even coupled with requesting enforcement—does not plausibly plead “joint action” or a “meeting of the minds” to violate constitutional rights.
  • Declaratory Judgment Act: The Act is not an independent cause of action; without a viable underlying claim, declaratory relief could not proceed.
  • Due process claim (judge and prosecutor): Absolute judicial and prosecutorial immunity barred suit; the court therefore did not need to reach the plaintiff’s arguments about Parratt v. Taylor.

3. Analysis

3.1 Precedents Cited

A. Pro se construction and appellate waiver

  • Yang v. Archuleta, 525 F.3d 925 (10th Cir. 2008): The panel reiterated that pro se pleadings are construed liberally, but courts do not act as counsel—framing the lens through which the complaint’s allegations were read.
  • Sawyers v. Norton, 962 F.3d 1270 (10th Cir. 2020): Used to deem certain arguments waived (e.g., unchallenged qualified-immunity determinations and official-capacity dismissals) because they were not raised in the opening brief.

B. Supplemental jurisdiction after federal claims are dismissed

  • Koch v. City of Del City, 660 F.3d 1228 (10th Cir. 2011): Reinforced the familiar rule that when all federal claims are dismissed, a district court “may, and usually should,” decline supplemental jurisdiction over remaining state claims—supporting the district court’s discretionary choice.

C. Diversity jurisdiction: amount in controversy must be factually supported

  • Youren v. Tintic Sch. Dist., 343 F.3d 1296 (10th Cir. 2003): Provided the de novo standard of review for subject-matter jurisdiction.
  • New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989): Cited for the general proposition that federal courts lack authority to abstain from jurisdiction conferred—important because VanHorn argued the district court had an “obligation” to hear state claims if diversity existed.
  • Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996): Noted as partially abrogating New Orleans Pub. Serv. on other grounds, but leaving intact the core point the panel used: federal courts generally must exercise properly conferred original jurisdiction.
  • Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179 (10th Cir. 2000): Central to the holding: a conclusory allegation or open-ended prayer for damages does not itself establish the $75,000 amount in controversy. The panel applied Adams to reject VanHorn’s diversity theory because he pleaded no facts showing damages reasonably relating to the jurisdictional floor.

D. Rule 12(c) treatment and harmlessness

  • Chieftain Royalty Co. v. SM Energy Co., 100 F.4th 1147 (10th Cir. 2024): Supported de novo review of the district court’s interpretation/application of federal procedural rules.
  • Home Loan Inv. Co. v. St. Paul Mercury Ins. Co., 827 F.3d 1256 (10th Cir. 2016): Emphasized substance over form—courts look to the relief requested rather than the label.
  • Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802 (10th Cir. 2021): Cited for the “pleadings are not closed until all defendants file an answer” principle, highlighting why the Rule 12(c) motion was technically premature.
  • Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138 (10th Cir. 2000): Key functional rule: a Rule 12(c) motion is treated as a Rule 12(b)(6) motion.
  • Dodson Int'l Parts, Inc. v. Williams Int'l Co., 12 F.4th 1212 (10th Cir. 2021): Again reinforced evaluating motions by substance, not label.
  • Albers v. Bd. of Cnty. Comm'rs, 771 F.3d 697 (10th Cir. 2013): The linchpin for harmless error: whether dismissal proceeds under Rule 12(b)(6) or 12(c) makes no difference on appeal, so any procedural misstep is harmless if substantial rights are unaffected.
  • 28 U.S.C. § 2111: Statutory harmless-error direction, supporting affirmance despite non-prejudicial procedural defects.

E. Pleading standards and plausibility

  • McNellis v. Douglas Cnty. Sch. Dist., 116 F.4th 1122 (10th Cir. 2024): Restated the Rule 12(b)(6) standard: accept well-pleaded facts, not conclusory allegations; no “labels” or “formulaic recitations.”
  • Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007): Used to reject conspiracy pleading based on parallel conduct plus “bare assertion” of conspiracy.
  • Ashcroft v. Iqbal, 556 U.S. 662 (2009): Applied (via later Tenth Circuit authority) to disregard threadbare recitals and conclusory statements.
  • Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264 (10th Cir. 2023): Employed to confirm that conclusory element-recitation is not credited.
  • Brooks v. Mentor Worldwide LLC, 985 F.3d 1272 (10th Cir. 2021): Helped define what makes an allegation “conclusory” (inference without underlying facts).
  • Chilcoat v. San Juan Cnty., 41 F.4th 1196 (10th Cir. 2022): Provided a concise statement of plausibility (“factual content” permitting a reasonable inference) and later supported the prosecutorial-immunity discussion.

F. § 1985(3) conspiracy requirements

  • Tilton v. Richardson, 6 F.3d 683 (10th Cir. 1993): Provided the elements of a § 1985(3) claim and the requirement of “racial, or perhaps otherwise class-based, invidiously discriminatory animus.” This made VanHorn’s theory harder to sustain because he alleged essentially “masked vs. unmasked” classes rather than a protected-class animus traditionally cognizable under § 1985(3).
  • Abercrombie v. City of Catoosa, 896 F.2d 1228 (10th Cir. 1990): Supplied the “meeting of the minds or agreement” requirement for conspiracy—what the complaint failed to plausibly allege.
  • Benavidez v. Gunnell, 722 F.2d 615 (10th Cir. 1983): Critical “joint action” limitation: merely furnishing information to police does not render a private citizen a state actor liable under §§ 1983 or 1985.

G. § 1983 “state action” and “joint action” tests

  • Schaffer v. Salt Lake City Corp., 814 F.3d 1151 (10th Cir. 2016): Stated § 1983’s two elements: deprivation of a federally protected right and action under color of state law.
  • Pino v. Higgs, 75 F.3d 1461 (10th Cir. 1996): Provided the two-part “fairly attributable to the State” test and reinforced that availing oneself of state procedures does not, by itself, constitute state action.
  • Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th Cir. 1995): Required pleading facts showing a “specific goal” shared with state officials to violate constitutional rights via a particular course of action—an evidentiary/conceptual benchmark the panel found unmet.

H. Declaratory Judgment Act is not a standalone claim

  • Skelly Oil Co. v. Phillips Petrol. Co., 339 U.S. 667 (1950): Established that the Declaratory Judgment Act does not create an independent cause of action; it requires a viable underlying legal claim.

I. Immunities foreclosing the due-process theory

  • Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986): The district court relied on Parratt-type reasoning, but the Tenth Circuit did not need to address it because absolute immunity resolved the claim.
  • Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183 (10th Cir. 2008): Articulated the two exceptions to judicial immunity (non-judicial acts; acts in complete absence of jurisdiction). VanHorn did not plausibly invoke either exception.
  • Chilcoat v. San Juan Cnty., 41 F.4th 1196 (10th Cir. 2022): Also supplied the prosecutorial-immunity rule: absolute immunity covers initiating and pursuing prosecutions and related advocacy functions (probable cause evaluation, evidence assessment, decisions what to present to court), unless acting as administrator/investigator rather than advocate.

3.2 Legal Reasoning

A. Diversity jurisdiction was not established by conclusions and open-ended prayers for relief

VanHorn’s strategy was to keep his state-law claims in federal court after the federal claims were dismissed by invoking diversity jurisdiction under 28 U.S.C. § 1332(a)(1). The panel treated this as a straightforward pleading-and-proof problem: he alleged no concrete facts showing a recoverable amount in controversy exceeding $75,000 on the state-law claims, relying instead on a conclusory assertion and generalized damage requests.

By applying Adams v. Reliance Standard Life Ins. Co., the court effectively reinforced a practical rule: “$75,000+” is not magic words; the complaint must allege facts making that figure plausible as “reasonably related” to recoverable damages. Without that, there was no independent basis of original jurisdiction once the federal claims were gone, and dismissal without prejudice of the state claims was appropriate.

B. Treating a premature Rule 12(c) motion as Rule 12(b)(6) was harmless

Although Rule 12(c) ordinarily comes only “after the pleadings are closed,” the court emphasized function over form. Because Rule 12(c) uses the same standard as Rule 12(b)(6) (Atl. Richfield Co. v. Farm Credit Bank of Wichita), and because any timing defect did not affect substantial rights, the panel invoked harmless-error principles (Albers; 28 U.S.C. § 2111) to affirm.

The deeper procedural point is managerial: when two defense motions (one labeled 12(b)(6), one labeled 12(c)) present the same failure-to-state-a-claim question on substantially the same record, insisting on refiling is not required absent prejudice.

C. Calling police and requesting enforcement did not plausibly plead “joint action” for §§ 1983 and 1985(3)

The opinion’s core civil-rights holding is that private retail actors do not become state actors (and do not plausibly enter a civil-rights conspiracy) merely by calling police, reporting conduct, or expressing a desire that police remove/arrest a person.

  • For § 1985(3): The complaint did not plead facts showing a “meeting of the minds” (Abercrombie v. City of Catoosa) and offered the kind of “bare assertion” rejected by Twombly. The court also reiterated § 1985(3)’s “class-based, invidiously discriminatory animus” requirement (Tilton v. Richardson), which the pleaded “masked vs. unmasked” framing did not naturally satisfy.
  • For § 1983: The court treated “state action” as the decisive barrier. Using Pino v. Higgs and Gallagher v. Neil Young Freedom Concert, it held the complaint lacked facts indicating that the Salvation Army defendants and police shared a specific unconstitutional objective and coordinated a particular rights-violating course of action. The panel viewed the allegations as conclusory (“instigated, assisted, directed and encouraged”) rather than factually specific, and reinforced the bright-line guidance of Benavidez v. Gunnell: furnishing information to police is not joint action.

D. Declaratory relief fails without an underlying cause of action

Relying on Skelly Oil Co. v. Phillips Petrol. Co., the panel treated the Declaratory Judgment Act claim as derivative: once the operative federal claims failed and diversity jurisdiction was not established for state claims, there was no independent platform for declaratory relief.

E. Absolute immunity foreclosed due-process claims against the judge and prosecutor

VanHorn argued the municipal court lacked jurisdiction because no proper criminal complaint was filed. The panel did not reach the merits of that theory. Instead, it applied absolute immunity doctrine:

  • Judicial immunity: Under Stein v. Disciplinary Bd. of Sup. Ct. of N.M., judicial immunity is overcome only if the act is non-judicial or performed in complete absence of jurisdiction. An arraignment and adjudication are paradigmatic judicial acts, and VanHorn did not develop an exception-based argument.
  • Prosecutorial immunity: Under Chilcoat v. San Juan Cnty., initiating and pursuing a prosecution are protected advocacy functions. VanHorn did not plausibly allege the prosecutor acted as an investigator/administrator outside the advocacy role.

3.3 Impact

  • Practical pleading constraint on diversity: The decision underscores that plaintiffs cannot preserve a federal forum for state claims post-dismissal of federal claims merely by incanting “$75,000+”; facts must make the amount in controversy plausible under Adams.
  • Procedural efficiency: The opinion encourages district courts to treat mislabeled or premature Rule 12 motions pragmatically where no prejudice results, reinforcing harmless-error principles and Rule 1’s efficiency aims.
  • State-action boundary for private complainants: The court reaffirmed a recurring civil-rights limitation: calling the police is not, without more, state action. This narrows attempts to convert private policy disputes (here, mask policy) into § 1983 claims against private entities absent well-pleaded facts of coordinated unconstitutional purpose and conduct.
  • Immunity as a threshold filter: The immunity discussion illustrates that procedural-due-process theories attacking the mechanics of criminal charging/arraignment often cannot proceed as damages actions against judges/prosecutors, even if the plaintiff frames the issue as “jurisdictional.”

4. Complex Concepts Simplified

  • Supplemental jurisdiction: When a federal court has a valid federal claim, it can hear related state-law claims. But if the federal claims are dismissed, the court usually dismisses the state claims too, leaving them for state court.
  • Diversity jurisdiction and “amount in controversy”: Even if parties are citizens of different states, federal diversity jurisdiction requires a plausible showing that more than $75,000 is genuinely at stake. A conclusory statement or open-ended damages request is not enough.
  • Rule 12(b)(6) vs. Rule 12(c): Both can test whether the complaint states a claim. Rule 12(b)(6) is typically before an answer; Rule 12(c) is typically after. But courts often apply the same standard and will not reverse for harmless timing/label errors.
  • “State action” / “under color of law”: § 1983 usually applies only to government actors. A private party can be treated as a state actor only in narrow circumstances, such as coordinated action with officials aimed at violating rights—not merely reporting something to police.
  • § 1985(3) conspiracy: Requires an actual agreement (“meeting of the minds”) plus (typically) class-based discriminatory animus; conclusory assertions of conspiracy are insufficient.
  • Absolute immunity: Judges and prosecutors are generally immune from damages suits for actions taken in their judicial/prosecutorial roles (like arraigning a defendant or pursuing charges), with limited exceptions not shown here.

5. Conclusion

The Tenth Circuit’s nonprecedential disposition in VanHorn v. Salvation Army reinforces several recurring federal-courts gatekeeping principles: (1) diversity jurisdiction demands fact-based plausibility on the amount in controversy; (2) technical mislabeling or timing defects in Rule 12 practice will not yield reversal absent prejudice; (3) a private retailer does not become a state actor—and does not plausibly enter a § 1985(3) conspiracy—simply by calling police and seeking trespass enforcement; (4) declaratory relief cannot stand alone without a viable underlying claim; and (5) absolute judicial and prosecutorial immunity can end due-process-based damages claims at the threshold, without reaching the merits of alleged irregularities in criminal charging or arraignment.