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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 12, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
SHAWN WALDEN,
Plaintiff - Appellant,
v. No. 25-6153
THE CITY OF DUNCAN, OKLAHOMA;
CHRISTIAN ARCHER,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:23-CV-01075-PRW)
Mark Hammons, Hammons, Hurst & Associates, Oklahoma City, Oklahoma, for Plaintiff-Appellant.
Jeffrey Hendrickson (Robert S. Lafferrandre, Jessica L. Dark, and Jessica James Curtis with him on the brief), Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Defendants-Appellees.
Before HARTZ, MATHESON, and McHUGH, Circuit Judges.
HARTZ, Circuit Judge.
Plaintiff Shawn Walden, a member of the Choctaw Tribe, alleges that he was
unlawfully arrested by Officer Christian Archer of the Duncan Police Department
(the DPD). He brought claims against Archer and the City of Duncan (Defendants),
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including a claim against Archer under 42 U.S.C. § 1983, which provides a cause of
action for “deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” against “[e]very person who” acts “under color of any statute,
ordinance, regulation, custom, or usage[] of any State.” Defendants argue, however,
that Archer could not have acted under color of Oklahoma law because that law
would not allow a state officer to arrest an Indian for crimes committed on tribal
land, as happened here. The district court agreed and granted summary judgment for
Defendants.
We hold that the ruling of the district court was based on a misconception of
the applicable law. As a state officer, Archer could detain a suspect before
conclusively determining whether the suspect was an Indian. On the record before us,
we would have to conclude that Archer was acting under color of Oklahoma law
when he detained and briefly investigated Walden. And even if at some point his
actions became unlawful, he may still have been acting under color of state law. We
do not, however, definitively rule on those matters. The only issue before us is
whether Archer was entitled to summary judgment, and we hold that he was not.
Whether Plaintiff ultimately prevails on the color-of-law element of his claim is a
matter for the district court on remand, perhaps after further factual development.
Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further
proceedings.
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I. BACKGROUND
A. Factual Background
On December 30, 2022, the DPD received a call that a suspicious man was
inside the Chisolm Corner Store and had dropped his firearm twice. The store was in
Duncan, Oklahoma, and within the jurisdiction of the Chickasaw Nation Tribe (the
Tribe). The DPD and the Tribe had an agreement allowing cross-commissioned DPD
officers to enforce tribal law in Chickasaw Nation Indian country.
Officer Archer arrived on the scene as Plaintiff was backing out of a parking
spot. He arrived in his DPD uniform while driving a DPD car. He was wearing his
DPD badge and a DPD body camera. And he was cross-commissioned by the City of
Duncan and the Tribe.
Because Archer suspected that Plaintiff was intoxicated, he had Plaintiff
perform a field sobriety test. Based on the tests he performed, Archer arrested
Plaintiff and read him Oklahoma’s Implied Consent Test Request. Archer asked
Plaintiff to submit to a blood test “by approved medical personnel under Oklahoma
law” and advised Plaintiff that he “may refuse the State’s test, but as a consequence
[his] driving privileges will be revoked or denied.” Aplt. App., Vol II at 255.
Archer interpreted Plaintiff’s response as a refusal. He seized a firearm in the
vehicle and took Plaintiff to Stephens County Jail, where he was booked on charges
of Actual Physical Control in violation of Okla. Stat. tit. 47, § 11-902 (prohibiting an
intoxicated person to be in actual physical control of a motor vehicle) and Carrying
Firearms While Under the Influence in violation of Okla. Stat. tit. 21, § 1289.9.
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While booking Plaintiff, however, officers discovered that he was a member of
the Choctaw Tribe. Because Plaintiff was an Indian and the alleged crimes were
committed in Indian country, Oklahoma courts lacked criminal jurisdiction. See Ute
Indian Tribe of the Uintah & Ouray Rsrv. v. Utah, 790 F.3d 1000, 1004 (10th Cir.
2015) (Gorsuch, J.) (generally “states possess no authority to prosecute Indians for
offenses in Indian country” (internal quotation marks omitted)). Archer then filled
out a Chickasaw Nation Probable Cause Affidavit, which accused Plaintiff of
violations of the Chickasaw Nation Tribal Code. Although the tribal prosecutor filed
charges against Plaintiff, the Tribe later dismissed them.
B. Procedural History
In November 2023 Plaintiff filed this suit. He alleged that Archer arrested him
based on a false contention that he was intoxicated. 1 He raised a federal claim against
Archer for false arrest under 42 U.S.C. § 1983 2 and state-law claims against the City
for false arrest and unlawful detention under the Oklahoma Governmental Tort
Claims Act.
The district court granted Defendants’ motions for summary judgment. See
Walden v. City of Duncan, No. CIV-23-1075-PRW, 2025 WL 2701504, at *1 (W.D.
Okla. Sept. 22, 2025). It did not reach the underlying merits of whether there was a
1
At oral argument Plaintiff’s counsel described the claim as challenging “only . . . the initial arrest and whether or not there was probable cause.” Oral Arg. at 04:23.
2
Although Plaintiff initially also brought a § 1983 claim against the City, he abandoned that claim in his Response to the City’s Motion for Summary Judgment.
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false arrest. Instead, it held that Plaintiff failed to overcome § 1983’s “jurisdictional
bar” because Archer acted under color of tribal law, rather than state law. Id. at *3.
And it held, for the same reason, that the state-law claims failed because Archer’s
actions were “outside the reach of the Oklahoma Governmental Tort Claims Act.” Id.
II. DISCUSSION
“We review the grant of summary judgment de novo.” Jones v. Norton, 809
F.3d 564, 573 (10th Cir. 2015). “We view the facts in the light most favorable to the
nonmovant and draw all reasonable inferences in the nonmovant’s favor.” Id.
“Summary judgment is appropriate only if there is no genuine dispute as to any
material fact.” Id. (internal quotation marks omitted). We consider only whether the
evidence in the current record requires a grant of summary judgment for Defendants.
We first review the grant of summary judgment on the federal claim before turning to
the state-law claims.
A. Federal Claim
Plaintiff brought his federal claim under § 1983, which provides:
Every 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, shall be
liable to the party injured in an action at law . . . .
42 U.S.C. § 1983 (emphasis added). “As [the statute’s] text makes clear, this
provision protects against acts attributable to a State.” Lindke v. Freed, 601 U.S. 187,
194 (2024). Under § 1983, “actions taken under color of a local government’s
law . . . count as ‘state’ action.” Id. at 195 n.1; see also Martinez v. City of Aurora,
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174 F.4th 745, 754 (10th Cir. 2026) (“[T]he under-color-of-law element [is] also
known as the state action requirement” (internal quotation marks omitted)). Section
1983 does not, however, protect against acts “of a private person.” Lindke, 601 U.S.
at 194. And, as relevant for this appeal, “[a] § 1983 action is unavailable for persons
alleging deprivation of constitutional rights under color of tribal law.” Burrell v.
Armijo, 456 F.3d 1159, 1174 (10th Cir. 2006) (internal quotation marks omitted).
“In the run-of-the-mill case, state action is easy to spot. Courts do not
ordinarily pause to consider whether § 1983 applies to the actions of police
officers . . . .” Lindke, 601 U.S. at 195. But this case adds a wrinkle. Defendant
Archer was cross-commissioned by a municipality and an Indian tribe. If he acted
under color of municipal law, he could be a proper defendant under § 1983. But the
district court granted summary judgment on the ground that he was not a state actor
at the time of the alleged constitutional violation because he was acting as a tribal
officer. See Walden, 2025 WL 2701504, at *3. We must reverse.
“State action for purposes of § 1983 exists only if an individual (1) possessed
actual authority to take a particular action on the state’s behalf and (2) purported to
exercise that authority.” Martinez, 174 F.4th at 755 (brackets and internal quotation
marks omitted). 3 One need not act in accordance with state law to be acting under
color of state law. “[T]he misuse of power, possessed by virtue of state law,
3
The parties’ original briefing debated whether apparent authority was sufficient to establish that someone acted under color of law. But they now agree that “apparent authority does not suffice to show state action.” Martinez, 174 F.4th at 756.
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constitutes state action. While the state-action doctrine requires that the State have
granted an official the type of authority that he used to violate rights—e.g., the power
to arrest—it encompasses cases where his particular action—e.g., an arrest made with
excessive force—violated state or federal law.” Lindke, 601 U.S. at 199–200
(brackets, citations, and internal quotation marks omitted); see Lugar v. Edmondson
Oil Co., 457 U.S. 922, 929 (1982) (“[T]he actions of a state officer who exceeds the
limits of his authority constitute state action . . . ”).
To resolve this case we examine what actual authority Archer had to act on
behalf of the State of Oklahoma.
There is a “complex patchwork of federal, state, and tribal law governing
Indian country.” United States v. Bryant, 579 U.S. 140, 145 (2016) (internal
quotation marks omitted). The Supreme Court has held that “[s]tate courts generally
have no jurisdiction to try Indians for conduct committed in Indian country.” McGirt
v. Oklahoma, 591 U.S. 894, 898 (2020) (internal quotation marks omitted); see also
id. at 931–32 (discussing congressionally created exceptions). But they can
“prosecute crimes committed by non-Indians . . . in Indian country.” Oklahoma v.
Castro-Huerta, 597 U.S. 629, 633 (2022); see Ross v. Neff, 905 F.2d 1349, 1353
(10th Cir. 1990) (States can prosecute non-Indian crimes against non-Indians and
victimless crimes by non-Indians in Indian country). Likewise, “[t]ribal governments
generally lack criminal jurisdiction over non-Indians who commit crimes in Indian
country,” although a tribe “may enforce [its] criminal laws against Indian
defendants.” Bryant, 579 U.S. at 145, 146 n.4.
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The view of Defendants, joined by the district court, appears to be that this
division of authority to prosecute settles the issue before us. The State could not
prosecute Plaintiff, an Indian, for a crime committed in Indian country, so a state
officer could not have authority to arrest Plaintiff for such a crime. There is a logic to
that conclusion, but the practical consequences are significant. It is certainly
acceptable to require the prosecuting authority to decide before trial whether it has
jurisdiction, by assessing whether the defendant is an Indian. 4 But how is a lawenforcement officer (state or tribal) supposed to act after deciding that a crime may
have been committed when the suspect’s Indian status is in question and ultimate
prosecution depends on the suspect’s status as an Indian or non-Indian?
The Supreme Court confronted this issue in United States v. Cooley, 593 U.S.
345 (2021). A tribal officer had approached the defendant parked on the side of a
federal highway in Montana that ran through the Crow Reservation. See id. at 348.
The officer noticed that the driver had “watery, bloodshot eyes,” “appeared to be
non-native,” and had “two semiautomatic rifles lying on the front seat.” Id. (internal
quotation marks omitted). The officer ordered the defendant out of his car, searched
him, and, after returning to the defendant’s car, discovered drugs. See id. The
defendant turned out to be non-Indian, so tribal prosecution was prohibited.
Concluding that the officer had no authority to detain and search the defendant, the
4
This court, however, has been presented with cases where the issue of Indian status has been vigorously contested, see, e.g., United States v. Ruiz, 164 F.4th 1223, 1225 (10th Cir.), reh’g en banc granted, opinion vacated, 174 F.4th 1253 (10th Cir. 2026); United States v. Hatley, 153 F.4th 1112, 1116 (10th Cir. 2025).
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federal district court suppressed the seized evidence, and the Ninth Circuit affirmed.
See id.
The Supreme Court reversed, holding that tribal officers “ha[ve] authority to
detain temporarily and to search a non-Indian on a public right-of-way that runs
through an Indian reservation . . . based on a potential violation of state or federal
law prior to the suspect’s transport to the proper nontribal authorities for
prosecution.” Id. at 347–48. It acknowledged the general rule that tribes “lack
inherent sovereign power to exercise criminal jurisdiction over non-Indians.” Id. at
349–350. But even if criminal jurisdiction rested outside the tribe, tribal officers
could still “detain the offender and transport him to the proper authorities.” Id. at 352
(internal quotation marks omitted). And “ancillary” to that detain-and-transfer power,
officers could “search a non-Indian prior to transport.” Id. To deny tribes this power
“would make it difficult for tribes to protect themselves against ongoing threats,”
contrary to their recognized inherent power in Indian territory over matters affecting
“the health or welfare of the Tribe.” Id. at 351 (internal quotation marks omitted).
The Court recognized that “full tribal jurisdiction” “over the activities of nonIndians on a reservation” would be improper. Id. at 352. But the Court’s pragmatic
approach respected the core interests of each sovereign. In particular, the conduct of
the officer in that case would “not subsequently subject [the defendant] to tribal law.”
Id. at 353. The tribal officer’s initial investigation of the defendant’s violation of the
law “protects the public without raising ‘similar concerns’ of the sort raised in [the
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Court’s] cases limiting tribal authority.” Id. (quoting and endorsing brief of Solicitor
General).
The Court rejected the standards that the Ninth Circuit imposed on tribal
officers, further reflecting the importance of pragmatic considerations. The Court
said that it had “doubts about the workability of [those] standards,” id., writing:
Those standards require[d] tribal officers first to determine whether a suspect
is non-Indian and, if so, allow[ed] temporary detention only if the violation
of law [wa]s “apparent.” The first requirement, even if limited to asking a
single question, would produce an incentive to lie. The second requirement—
that the violation of law be “apparent”—introduces a new standard into
search and seizure law. Whether, or how, that standard would be met is not
obvious. At the same time, because most of those who live on Indian
reservations are non-Indians, this problem of interpretation could arise
frequently.
Id. (citation omitted). Interestingly, the Court rejected the defendant’s suggestion that
these concerns could be remedied by affording tribes an opportunity to obtain crossdeputization agreements, noting that these agreements can be hard to come by. See
id. at 354–55.
Cooley did not directly address the circumstance we have here, which is the
mirror image of that case—the authority of a state officer to stop and investigate an
Indian in Indian territory. But this court has a precedent in that context, a precedent
suggesting that the same considerations govern the authority of a state lawenforcement officer in dealing with a suspect who may be Indian. In Ute Indian Tribe
of the Uintah & Ouray Reservation, 790 F.3d at 1006, we held that state officers can
“lawfully” stop a suspect on a highway that runs through tribal land before
determining the suspect’s tribal membership. Although we followed the lead of a
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Ninth Circuit opinion that expressed a rather restrictive view of the authority of the
officer, those restrictions are, at the very least, called into question by the reversal of
its decision in Cooley.
Thus, we must reject the ruling by the district court granting Defendants
summary judgment on the ground that Archer did not have state authority in
detaining and searching Plaintiff. Under the principles of Cooley, Archer, exercising
his authority as a DPD officer, could stop Plaintiff, detain him while conducting an
initial investigation, and then either hold him until the arrival of tribal officers or
transport him to tribal authorities. 5 And even if Archer went beyond the permissible
bounds of such detention and transportation—for example, by “misus[ing]” his
authority, Lindke, 601 U.S. at 200—his actions may still have been under color of
state law. But because the sole issue on appeal is the propriety of the summary
judgment in favor of Defendants, we should not and need not definitively hold that
Archer’s conduct satisfied the actual-authority element of the color-of-law test.
Suffice it to say that on the current record, we must reverse the summary judgment
and remand for further proceedings, which may include additional development of
the factual context. 6
5
The record is unclear whether Plaintiff would have been taken to the same jail if he had been arrested on tribal charges. If so, Plaintiff’s transportation would have been precisely the same.
6
We have suggested that officers’ subjective beliefs of their authority may be relevant to determining whether they possessed actual state authority. See Martinez, 174 F.4th at 759. But Defendants never argue that Archer did not believe that he was exercising state authority.
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We should, however, briefly discuss the second element required for Archer to
act under color of state law. “[T]o constitute state action, an official must not only
have state authority—he must also purport to use it.” Lindke, 601 U.S. at 201. The
“appearance and function” of an officer’s activity are relevant. Id. at 198. Here,
Archer was wearing his DPD uniform, driving a DPD car, carrying his DPD badge,
and using DPD equipment. He performed field sobriety tests that he was trained to
perform by Oklahoma. He read Oklahoma’s Implied Consent Test Request, which
gave Plaintiff a choice between agreeing to “the State’s test” and submitting to a
blood test “by approved medical personnel under Oklahoma law” or “refus[ing] the
State’s test” and having his driving privileges revoked. Aplt. App., Vol. II at 255.
After Plaintiff did not agree, Archer filled out a state form seeking the revocation of
Plaintiff’s driver’s license under state law. And, finally, Archer took Plaintiff to
county jail where Plaintiff was booked on state-law charges. During this process,
Archer never identified himself as a tribal officer or displayed any indicia of tribal
authority. Other contrary evidence may appear on remand; but we could not affirm
the summary judgment on the alternative ground that the second component of “color
of law” was not satisfied.
Finally, we note the possibility that the evidence could support a determination
that Archer was acting under color of both tribal law and state law. But it would be
premature for us to opine on whether § 1983 would apply in that circumstance.
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B. State claims
After determining that Plaintiff did not overcome § 1983’s “jurisdictional bar,”
the district court summarily disposed of Plaintiff’s state-law claims. Walden, 2025
WL 2701504, at *3. We question the relevance of the § 1983 color-of-law analysis to
the state-law claims, which turn on whether the political-subdivision employee was
“acting within the scope of employment.” But in any event, we must reverse and
remand for further proceedings the dismissal of the state-law claims because that
dismissal was based on the mistaken ruling on the § 1983 claim.
III. CONCLUSION
We REVERSE the district court’s grant of summary judgment in favor of
Defendants and REMAND for further proceedings consistent with this opinion.
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25-6153, Walden v. City of Duncan
MATHESON, Circuit Judge, concurring:
I join the majority opinion but write separately to clarify the basis for the district
court’s subject matter jurisdiction in this § 1983 action.
The district court said Mr. Walden failed to overcome § 1983’s “jurisdictional
bar.” This statement is incorrect. Section 1983’s “under color of” state law element does
not confer federal court jurisdiction. 1 Instead, federal courts derive subject matter
jurisdiction in § 1983 actions from 28 U.S.C. §§ 1343(a)(3) or 1331. The former requires
a deprivation “under color of” state law. The latter does not.
As explained below, because Mr. Walden’s complaint relied on § 1331 in addition
to § 1343(a)(3) for jurisdiction, he did not need to plead and prove “under color of” state
law for subject matter jurisdiction, but he must do so to establish § 1983 liability.
1. Background
a. 42 U.S.C. § 1983
Section 1983 states the substantive requirements to establish a claim under § 1983.
It provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
1
See 1 Martin A. Schwartz, Section 1983 Litigation Claims and Defenses § 1.07[A] (4th ed. Supp. 1 2026) (“Section 1983 itself does not confer subject matter jurisdiction on the federal courts.”).
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42 U.S.C. § 1983 (emphasis added). In Mitchum v. Foster, 407 U.S. 225 (1972), the
Supreme Court said Congress enacted § 1983 in 1871 to enforce Fourteenth Amendment
protections against state action. Id. at 238-39.
Section 1983 sets forth the elements to establish liability, not federal court
jurisdiction. The “under color of” state law element ensures that § 1983 liability falls
within Congress’s Section 5 power to enforce the Fourteenth Amendment’s substantive
protections. See United States v. Morrison, 529 U.S. 598, 621 (2000) (“Foremost among
these limitations [on Section 5 power] is the time-honored principle that the Fourteenth
Amendment, by its very terms, prohibits only state action.”); Kulick v. Pocono Downs
Racing Ass’n, 816 F.2d 895, 898 (3d Cir. 1987) (“[T]he state action requirement of a
§ 1983 claim constitutes a basis for Congress to regulate conduct pursuant to § 5 of the
Fourteenth Amendment.”). 2
In most § 1983 actions, “under color of” state law serves a function akin to a
federal statute’s interstate commerce element that ensures its application falls within
2
“Most [§ 1983] decisions tend to treat the color-of-state-law and state action requirements as one and the same.” 1A Schwartz, supra note 1, at § 5.10 (4th ed. Supp. 2 2023); see NCAA v. Tarkanian, 488 U.S. 179, 182 n.4 (1988) (treating Fourteenth Amendment state action and § 1983 “under color of” state law as “equivalent”); see also Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (holding that conduct that is state action under the Fourteenth Amendment is also conduct under color of state law under § 1983). When a § 1983 claim alleges a violation of constitutional rights (e.g., the Thirteenth Amendment) or federal statutory rights that do not have a state action requirement, the plaintiff would still need to satisfy § 1983’s “under color of” state law requirement.
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Congress’s Commerce Clause power. See United States v. Lopez, 514 U.S. 549, 561
(1995) (stating that jurisdictional elements “ensure, through case-by-case inquiry, that the
[conduct] in question affects interstate commerce”). Section 1983’s “under color of”
state law must be pled and proved whether the action is brought in federal or state court.
See Maine v. Thiboutot, 448 U.S. 1, 10-11 (1980) (holding that Ҥ 1983 actions may be
brought in state court”).
b. 28 U.S.C. §§ 1343(a)(3) and 1331
Sections 1343(a)(3) and 1331 are subject matter jurisdiction-granting statutes.
Section 1343(a)(3) provides that district courts have original jurisdiction over any
action “[t]o redress the deprivation, under color of any State law, statute, ordinance,
regulation, custom or usage, of any right, privilege or immunity secured by the
Constitution of the United States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United States.” 28 U.S.C.
§ 1343(a)(3) (emphasis added).
Section 1331, the general federal question jurisdiction statute, provides: “The
district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331 (emphasis added).
It does not include an “under color of” state law requirement.
These statutes developed in parallel during the late 19th century.
Section 1343(a)(3), the jurisdictional companion to § 1983, originated in the Civil Rights
Act of 1866. Lynch v. Household Fin. Corp., 405 U.S. 538, 545 (1972). In 1875,
Congress enacted the forerunner of § 1331, giving “the federal courts jurisdiction of all
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suits of a civil nature at common law or in equity . . . arising under the Constitution or
laws of the United States.” Id. at 546 (quotations omitted). But unlike § 1343, “this
general federal-question provision . . . required that a minimum amount in controversy be
alleged and proved.” Id.
The Supreme Court recognized the “apparent conflict between” § 1331 and § 1343
“that a broad reading of § 1343(3) to include all rights secured by the Constitution would
render § 1331, and its amount-in-controversy requirement, superfluous.” Id. at 546-47.
The Court harmonized the apparent conflict by noting that “Section 1343(3) applies only
to alleged infringements of rights under ‘color of . . . State law,’ whereas § 1331 contains
no such requirement.” Id. at 547 (emphasis added).
Civil rights suits asserting jurisdiction under § 1343(a)(3) therefore needed to
plead and prove state action to establish subject matter jurisdiction. See Monks v.
Hetherington, 573 F.2d 1164, 1167 (10th Cir. 1978) (“There is no demonstration of state
action and, therefore, no basis for civil rights jurisdiction in the case at bar.”). But § 1331
did not require state action for subject matter jurisdiction.
Against this backdrop, the Supreme Court decided Polk County v. Dodson, 454
U.S. 312 (1981), stating that “under color of state law” was “a jurisdictional requisite for
a § 1983 action.” Id. at 315. In that case, “[t]he complaint [was] brought under 42 U.S.C.
§ 1983, and jurisdiction [was] predicated upon 28 U.S.C. § 1343.” Dodson v. Polk
County, 483 F. Supp. 347, 348 (S.D. Iowa 1979). State action under § 1343(a)(3) was
necessary for the federal court’s subject matter jurisdiction. See also West v. Atkins, 487
U.S. 42, 46 (1988) (referring to action “under color of state law,” as “a jurisdictional
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requisite for a § 1983 action”); Brief for the Respondent, West v. Atkins, 487 U.S. 42
(1988) (No. 87-5096), 1988 WL 1026278, at *2 (“The case involves 42 U.S.C. § 1983
and its jurisdictional counterpart, 28 U.S.C. § 1343.”).
In 1980, Congress removed the amount-in-controversy requirement for federal
question jurisdiction under § 1331. See Pub. L. No. 96-486, § 2(a), 94 Stat. 2369 (1980).
Now, most § 1983 claims are brought under both § 1331 and § 1343(a)(3). See, e.g.,
Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1094 (10th Cir.
2017) (“The complaint . . . relied on 28 U.S.C. § 1331 and § 1343 as the jurisdictional
basis for its civil rights claim.”). So long as the case “aris[es] under the Constitution,
laws, or treaties of the United States,” federal district courts have subject matter
jurisdiction. 28 U.S.C. § 1331.
Thus, when a § 1983 complaint asserts jurisdiction under § 1331, with or without
§ 1343(a)(3), the case “arises under” federal law and proof of deprivation “under color
of” state law is not necessary for subject matter jurisdiction. The plaintiff still must prove
“under color of” state law as an element of a § 1983 claim. Elliott v. Chrysler Fin., 149
F. App’x 766, 768 (10th Cir. 2005) (unpublished) (cited for persuasive value under Fed.
R. App. P. 32.1; 10th Cir. R. 32.1) (“Ordinarily, § 1983 plaintiffs assert federal question
jurisdiction under 28 U.S.C. § 1331, and the state action requirement is treated only as an
element of the claim.”).
2. Application
In his § 1983 complaint, Mr. Walden asserted subject matter jurisdiction under 28
U.S.C. §§ 1343(a)(3) and 1331. The district court found that Mr. Walden failed to
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overcome § 1983’s “jurisdictional bar.” But Mr. Walden does not need to prove “under
color of” state law to establish subject matter jurisdiction because, under § 1331, his
claim “aris[es] under” § 1983. 3 He does need to prove “under color of” state law to
establish § 1983 liability on the merits.
As noted, § 1343(a)(3) requires a deprivation “under color of” state law for subject
matter jurisdiction. But because § 1331 does not include a state action requirement for
federal jurisdiction, state action need not be proved for federal court jurisdiction in a
§ 1983 case when the complaint alleges jurisdiction under § 1331. Further, whether the
plaintiff relies on § 1343(a)(3), § 1331, or both, proof of “under color of” state law is still
an element of a § 1983 claim. See Elliott, 149 F. App’x. at 768-69.
The district court in Mr. Walden’s case had subject matter jurisdiction under
§ 1331 because his § 1983 claim arises under federal law, so any failure by Officer
Archer to act “under color of” state law would not be a subject matter jurisdiction bar but
instead would defeat the § 1983 claim on the merits.
3
“Normally, there is little difficulty in establishing federal court subject matter jurisdiction over § 1983 claims because the federal district courts have subject matter jurisdiction over all § 1983 claims under the general federal question statute, 28 U.S.C. § 1331, or alternatively under § 1343(a)(3).” 1 Schwartz, supra note 1, § 1.07[A] (4th ed. Supp. 1 2026).
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