No State Action in Private Condemnation: Tenth Circuit Holds Private Landowners Using Oklahoma’s “Private Way of Necessity” Statutes Are Not § 1983 Actors

Introduction

In Witherspoon v. Ince, the U.S. Court of Appeals for the Tenth Circuit affirmed the dismissal of a 42 U.S.C. § 1983 suit brought by a landowner against adjoining “private condemnor” neighbors who sought to obtain a twenty-foot road easement over her property under Oklahoma’s private condemnation scheme for “private ways of necessity.” The opinion addresses a foundational threshold question in § 1983 litigation—whether the private neighbors acted “under color of state law”—and clarifies that merely invoking state condemnation procedures does not convert private actors into state actors.

The plaintiff, Gwen B. Witherspoon (as trustee), alleged the Oklahoma statutes authorizing private condemnation (Okla. Stat. tit. 27, § 6; tit. 66, § 53; and tit. 69, § 1201), and their use by her neighbors, violate the Fifth and Fourteenth Amendments. The district court dismissed the claims against the private landowners for lack of subject-matter jurisdiction under Rule 12(b)(1) on state-action grounds and dismissed county defendants under Rule 12(b)(6). On appeal, Witherspoon challenged only the dismissal of the private landowners.

The Tenth Circuit concluded that the neighbors’ use of Oklahoma’s private condemnation procedures neither satisfies the “public function” test nor establishes “joint activity” with the state. The decision is nonprecedential under circuit rules but is citable for its persuasive value and has practical importance for property, civil rights, and state-action doctrine in the Tenth Circuit and beyond.

Summary of the Opinion

The panel (Chief Judge Holmes, Judges Tymkovich and Moritz) affirmed the district court’s Rule 12(b)(1) dismissal of the § 1983 claim against the private landowners, holding:

The “under color of state law” requirement is a jurisdictional prerequisite to a § 1983 action (citing West v. Atkins and Polk County v. Dodson), and the court reviews dismissals for lack of subject-matter jurisdiction de novo. In a facial Rule 12(b)(1) attack, well-pleaded factual allegations are accepted as true (Pueblo of Jemez v. United States).
Public function: Private condemnation for “private ways of necessity” in Oklahoma is not a function “traditionally exclusively reserved to the State.” The Oklahoma Constitution expressly authorizes such takings (Okla. Const. art. II, § 23), and the legislature empowers “any private person, firm or corporation” to exercise eminent domain for this purpose (Okla. Stat. tit. 27, § 6). Therefore, private landowners using these statutes are not state actors under the public-function test (Gallagher v. Neil Young Freedom Concert; Flagg Bros., Inc. v. Brooks).
Joint activity: A private party does not become a state actor “simply by availing [herself] of a state procedure” (Scott v. Hern). The alleged “joint action”—commissioning appraisers, paying the appraised value, filing notices, pleadings, motions, and exceptions—was merely private use of state procedures and did not amount to willful participation in joint activity with the State or its agents (Gallagher).

Because neither theory of state action applied, the § 1983 claim failed as a threshold matter. The court did not pass on the merits of the constitutional challenge to Oklahoma’s statutes or the separate dismissals of county defendants (which were not before the court on appeal).

Analysis

Precedents Cited and Their Role

West v. Atkins, 487 U.S. 42 (1988): West articulates that § 1983 imposes liability on those who, “under color of” state law, deprive a person of federal rights, and that a private physician contracted to treat prisoners was a state actor because he performed a function the state had an affirmative constitutional obligation to provide (medical care to inmates). The panel relied on West to frame “under color of state law” as an essential and, in its words, jurisdictional prerequisite. West contrasts sharply with the facts here: Oklahoma has affirmatively allowed private actors to perform private condemnation; it is not a function exclusively reserved to the State.
Polk County v. Dodson, 454 U.S. 312 (1981): Polk County held that a public defender does not act under color of state law when representing an indigent defendant because her role is not to wield the state’s authority against the client. The panel quotes Polk County’s “jurisdictional requisite” language to reinforce that a § 1983 claim cannot proceed without state action.
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442 (10th Cir. 1995): Gallagher is the Tenth Circuit’s leading synthesis of the four state-action tests: public function, joint action, nexus, and symbiotic relationship. The panel drew two rules from Gallagher:
- The public-function test is “difficult to satisfy” and requires a function “traditionally exclusively reserved” to the State.
- Joint action exists where a private party is a willful participant in joint activity with the State or its agents.
The panel applied both standards to reject § 1983 liability here.
Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978): Flagg Bros. is the seminal case on the narrowness of the public-function doctrine. There, a warehouseman’s sale of stored goods under a state lien statute was not state action because such self-help remedies are not exclusive governmental functions. The panel cited Flagg Bros. for the proposition that very few functions are “traditionally exclusively reserved” to the State and used that reasoning to conclude private condemnation in Oklahoma is not such a function.
Scott v. Hern, 216 F.3d 897 (10th Cir. 2000): Scott provides the key limitation on the joint-activity theory: “A private individual does not engage in state action simply by availing herself of a state procedure.” The panel applied Scott to hold that the neighbors’ use of Oklahoma’s procedures—appraisals, payments, filings—did not transform them into state actors.
Pueblo of Jemez v. United States, 790 F.3d 1143 (10th Cir. 2015) and United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787 (10th Cir. 2002): These precedents set the Rule 12(b)(1) framework, including de novo review and the rule that, on a facial jurisdictional attack, the court accepts the complaint’s well-pleaded facts as true.
Oklahoma authorities: Okla. Const. art. II, § 23 expressly permits takings “for private ways of necessity… in such manner as may be prescribed by law,” and Okla. Stat. tit. 27, § 6 authorizes “any private person, firm or corporation” to exercise eminent domain for private ways of necessity. The panel treated these provisions as decisive against the exclusivity required by the public-function test.

Legal Reasoning

The court’s analysis proceeds in two steps, mirroring the plaintiff’s theories of state action.

Public Function
The public-function doctrine converts private conduct into state action only if the private actor performs a function “traditionally exclusively reserved to the State.” While eminent domain is often associated with state power, the panel’s touchstone was exclusivity. Oklahoma’s constitutional and statutory framework affirmatively delegates private condemnation for private ways of necessity to private parties. Because Oklahoma law itself demonstrates the function is not exclusive to the State, the public-function test is not satisfied. The court emphasized the Supreme Court’s instruction in Flagg Bros. that the category of exclusive governmental functions is narrow.

The court’s reliance on Oklahoma’s constitutional provision is notable. Rather than surveying nationwide historical practice, the panel looked to the specific state’s allocation of authority to conclude the function is not exclusively governmental. The point is reinforced by Gallagher’s emphasis on exclusivity: when a state has long authorized private exercise of a power, it is difficult to claim the power is exclusively public.
Joint Activity
The joint-activity theory requires willful participation in joint action with the State or its agents. The plaintiff identified several steps taken in the private condemnation proceeding—commissioning appraisers, paying the appraised value, and engaging in filings and motions—as evidence of joint activity. The panel, citing Scott v. Hern, rejected this argument: merely availing oneself of state procedures does not constitute joint action.

Crucially, the panel found no allegations of collusion with state officials, no coercive or cooperative enforcement by state actors, and no facts depicting the State as an active participant in any deprivation. The gravamen of the complaint was that the procedures themselves are unfair or unconstitutional—not that the private defendants conspired with state officials to misuse them. That distinction is dispositive under Scott and Gallagher.

Impact and Practical Implications

Although issued as a nonprecedential order, the decision offers a clear, persuasive roadmap for future litigants confronting private condemnation disputes in Oklahoma and, by analogy, in other jurisdictions with similar “private way of necessity” statutes.

Channeling § 1983 Claims Toward State Actors: Property owners challenging the constitutionality of private condemnation regimes cannot maintain § 1983 claims against private condemnors solely because those condemnors use state procedures. Plaintiffs seeking federal relief must target appropriate state actors (e.g., officials who administer or enforce the statutory scheme) or proceed within state condemnation forums.
Narrowing the Public-Function Pathway: The ruling underscores how difficult it is to recharacterize private conduct as public under the public-function doctrine. Where a state’s constitution or laws have historically delegated a power (like private ways of necessity) to private parties, exclusivity is absent and the doctrine does not apply.
Clarifying “Joint Action” Boundaries: Routine use of state courts and statutory procedures—filing petitions, following appraisal steps, paying deposits—will not, without more, satisfy the joint-activity standard. Facts suggesting conspiracy with, or coercive assistance by, state officials are typically necessary.
Procedural Consequences in the Tenth Circuit: By treating the absence of state action as a jurisdictional defect remediable under Rule 12(b)(1), the panel reinforces a Tenth Circuit practice (citing West and Polk County) that some other courts approach as a merits question under Rule 12(b)(6). Practitioners should plead state-action facts with specificity from the outset to avoid jurisdictional dismissal.
Real Property Litigation Strategy: Landowners opposing private condemnations should be prepared to:
- Assert defenses and constitutional objections in the state condemnation proceedings;
- Consider injunctive and declaratory relief actions against relevant state officials if appropriate (e.g., to enjoin enforcement of allegedly unconstitutional procedures); and
- Focus any § 1983 damages claims on state actors, not private neighbors, unless there is concrete evidence of conspiracy or joint enforcement involving state agents.
Persuasive Value Beyond Oklahoma: Many states recognize some form of private way of necessity. While state constitutional provisions differ, the court’s twin holdings—(1) private condemnation is not a traditionally exclusive state function, and (2) using state procedures is not joint action—are likely to be influential in similar disputes throughout the Tenth Circuit.

Complex Concepts Simplified

“Under Color of State Law”: A § 1983 defendant must be fairly treated as a state actor—someone exercising power made possible by state authority. Ordinary private behavior generally does not qualify.
Public-Function Test: A narrow path to state action. A private party is a state actor only if performing a task historically and exclusively done by the government (e.g., running elections has sometimes qualified; many functions do not).
Joint-Activity (or Joint-Action) Test: Private parties may be state actors if they team up with state officials to carry out a deprivation. Merely using courts or statutory processes, without collusion or coercive state involvement, is not enough.
Private Condemnation / Private Way of Necessity: A legal mechanism allowing a landlocked owner to obtain access across neighboring land, often with compensation set by appraisal or court order. In Oklahoma, private persons can invoke eminent domain for this limited purpose by statute and constitutional authorization.
Rule 12(b)(1) “Facial Attack”: A jurisdictional challenge arguing the complaint’s allegations, even if true, do not establish jurisdiction. Courts accept factual allegations as true but still ask whether they suffice to confer jurisdiction.
Nonprecedential Disposition: An order designated as not binding precedent for future cases; in the Tenth Circuit, it may still be cited for its persuasive value.

Additional Observations and Practice Pointers

Pleading State Action: If pursuing § 1983 claims against private parties in this context, plead concrete facts showing conspiracy or significant, willful participation of state officials in effecting the taking—beyond the private party’s compliance with procedural steps.
Appropriate Defendants: Consider whether county or state officials who administer, approve, enforce, or implement the condemnation procedures are proper defendants for constitutional challenges. The court here did not review the dismissals of the county defendants; those issues remain governed by the district court’s unappealed rulings.
Preserve Constitutional Issues in State Proceedings: Many condemnation regimes provide paths to raise constitutional objections, particularly to public use and just compensation. Exhausting or preserving those arguments can be critical for subsequent review.
Remedies: Even if private defendants are not § 1983 actors, relief may be available through declaratory or injunctive claims against state actors, or through appeals in the state condemnation process. Damages against private neighbors under § 1983 are foreclosed absent state action.

Conclusion

Witherspoon v. Ince reinforces two cornerstone principles of state-action doctrine in the Tenth Circuit’s § 1983 jurisprudence. First, private condemnation for “private ways of necessity” is not a function “traditionally exclusively reserved to the State,” particularly where Oklahoma’s constitution and statutes expressly empower private persons to undertake it. Second, merely invoking and following state procedures—appraisals, payments, and filings—does not constitute “joint activity” with the State.

The decision, though nonprecedential, will meaningfully shape litigation strategy in property-access disputes. Plaintiffs cannot convert private neighbors into § 1983 defendants simply because those neighbors use state-created procedures. Constitutional challenges to the fairness or validity of those procedures must be directed at the State’s laws and officials or litigated within the state condemnation framework. The opinion thus provides a clear and practical guidepost at the intersection of property law and civil rights: private use of a law, without more, does not make the user the State.