Mph TN Area Local v. H B Phillips

UNITED STATES COURT OF APPEALS _________________

FOR THE SIXTH CIR CUIT COUNSEL

_________________

ARGUED: Peter J. Leff, O'DONNEL L, SCHWARTZ &

MEMPHIS, TENNESSEE AREA X ANDERSON, Washington, D.C., for Appellant. David P.

LOCAL, AMERICAN POSTAL - Knox, FORD & HARR ISON, Memphis, Tennessee, Henry L.

WORKERS UNION, AFL-CIO - Klein, Tennessee, APPE Debra L. Fe RSON, CRUMP & M ssenden, LAW AXWEL OFFI L, Me CES OF mphis,

a/k/a AMERICAN POSTAL - - No. 02-5694 THOMAS E. HANSOM, Memphis, Tennessee, for

WORKERS UNION, LOCAL 96, , > Appellees. ON BRIEF: Pet er J . Leff, O'DONNELL,

Plaintiff-Appellant, - SCHWARTZ & ANDERSON, Washington, D.C., for

- Appellant. David P. Knox, FORD & HARRISON, Memphis,

v. - Tennessee, Henry L. Klein, APPERSON, CRUMP &

- MAX Thomas WE Edwards Hansom, LAW OFF LL, Memphis, Tennessee, De ICES OF THOMAS bra L. Fessende E. n,

CITY OF MEMPHIS; H. B. - HANSOM, Memphis, Tennessee, Brian L. Kuhn, SHELBY

PHILLIPS, INC.; PRO-TECH - - COUNTY ATTORNEY'S OFFICE, Memphis, Tennessee,

SECURITY, I NC ., - for Appellees.

Defendants-Appellees. -

- _________________

N OPINION

Appeal from the United States District Court _________________

for the Western District of Tennessee at Memphis

No. 01-03011-Bernice B. Donald, District Judge. DAMON J. KEITH, Circuit Judge. This is an appeal of the

order dismissing for failure to state a cause of action this civil

Argued: October 24, 2003 rights action arising from the Defendants-Appellees' activities

relative to picketing by the Plaintiff-Appellant. In light of the

Decided and Filed: January 21, 2004^* liberal pleading standards set forth in Federal Rule of Civil

Procedure ("FRCP") 8(a), and adhered to by the federal courts, the district court's decision to grant the Defendants' motions to dismiss is REVERSED and REMANDED for the reasons set forth below.

*

This decision was originally issued as an "unpublished decision"

filed on January 21, 2004. On March 3, 2004, the court designated the

opinion as one recommended for full-text publication.

1

I. BACKGROUND For purposes of the motions to dismiss, the following facts

were taken as true by the district court, and are treated the

On December 19, 2001, Memphis, Tennessee Area Local same by this court. Since April 3, 2001, the Union has been 96 ("Union") filed a complaint against the City of Memphis engaged in "picketing and other expressions" in support of a ("Memphis"), H. B. Phillips, Inc. ("Phillips"), and Pro-Tech strike against Phillips at or near Phillips's Memphis, Security, Inc. ("Pro-Tech") in the United States District Court Tennessee facility . Specifically, the picketers tried to call for the Western District of Tennessee. The Union prayed for non-striking employees "scabs," tried to shout slogans at the injunctive relief, as well as compensatory and punitive non-striking employees, and tried to use sound amplifying damages. The complaint alleges that a deprivation of the devices (such as megaphones) to convey their message. Union's rights under the National Labor Relations Act and During the course of the strike, Memphis has provided police the U.S. Constitution, in violation of 42 U.S.C. § 1983, arose services, and Pro-Tech has provided security services at or during the course of the Union's strike at Phillips. The Union near th e facil it y. Certain security officers employed by Pro- in its complaint avers that this deprivation was caused by on- Tech are off-duty officers of the MPD. duty and off-duty police officers of the Memphis Police

Department ("MPD"), acting under color of state law and in During the strike, Phillips and Pro-Tech, through on-duty

accordance with a Memphis policy or custom, at the direction and off-duty officers of the MPD, have attempted to "interfere

of and through a conspiracy with Phillips and Pro-Tech and with, deter, and intimidate" the Union, and have directed

their agents. MPD officers to "threaten to engage in and engage in force,

violence, harassment and the unequal enforcement of the

On February 1, 2002, Pro-Tech filed a motion to dismiss law." J.A. at 10; Compl. ¶¶ 18, 19. Furthermore, "on-duty the Union's complaint pursuant to FRCP 12(b)(6) or, in the MPD poli ce officers cont in uously conferred with agents of alternative, for summary judgment. On February 5, 2002, Phillips and Pro-Tech before confronting members of the Memphis filed a motion to dismiss. On February 14, 2002, Union and their sympathizers on the picket line." J.A. at 11; Phillips filed a motion to dismiss. On March 19, 2002, the Compl. ¶ 20.

Union responded to all three motions.

Memphis, "through the MPD, has a policy and practice of

On May 1, 2002, the district court considered Pro-Tech's allowing off-duty police officers to be hired by private motion to dismiss or, in the alternative, for summary security companies (including Pro-Tech)." J.A. at 9;Compl. judgment, as a motion to dismiss pursuant to FRCP 12(b)(6) ¶ 14. All other references to the actions of Memphis are made and granted the motion, thereby dismissing the Union's in the following form: "Phillips and its agents, and Pro-Tech claims against Pro-Tech. On May 1, 2002, the district court and its agents, conspired with Memphis, through its on-duty granted Memphis' motion to dismiss. On May 2, 2002, the and off-duty MPD police officers , to engage in the police district court granted Phillips' motion to dismiss. On May 20, misconduct [alleged to have violated the Union's rights]." 2002, the district court entered judgment by dismissing the J.A. at 12, 13; Compl. ¶¶ 22, 23, 25, 26, 26 (emphasis added). Union's claims against Memphis, Phillips and Pro-Tech in Sp ecifically, in paragraph 20 of the complaint, the Union accordance with the May 1 and 2 Orders. On May 21, 2002, claims that, "Memphis, through its on-duty and off-duty the Union filed a Notice of Appeal appealing the Orders police officers, engaged in a pattern of police misconduct" granting the motions to dismiss. including: arresting and detaining strikers without cause, failing to respond to or investigate threats to the safety of (stating that a civil rights plaintiff need not anticipate an strikers (including allegations that Union members on the affirmative defense which must be pleaded by the defendant). picket line were struck by vehicles driven by non-striking A court must construe the complaint in the light most employees), and compelling strikers to provide personal favorable to the plaintiffs and accept as true all well-pleaded information. J.A. at 11, 12. In addition to the unlawful factual allegations. Cooper v. Parrish , 203 F.3d 937, 944 actions of Memphis, singularly, "Phillips and its agents, and (6th Cir. 2000). Claims made pursuant to 42 U.S.C. § 1983 Pro-Tech and its agents, conspired with Memphis, through its are not subject to heightened pleading standards. Leatherman on-duty and off-duty police officers, to engage in the [pattern v. Tarrant County Narcotics Intelligence & Coordination of] police misconduct described in ¶ 20 [of the complaint]." Unit , 507 U.S. 163, 165-66 (1993) (rejecting heightened J.A. at 11; Compl. ¶ 22. The alleged police misconduct pleading standards for § 1983 claims); Jones v. Duncan , 840 described in paragraph 20 was "committed in furtherance of F.2d 359 (6th Cir. 1988) (holding that § 1983 complaints the conspiracy," and "Memphis knew or reasonably should need not set down in detail all the particularities of a have known that the actions of the on-duty and off-duty MPD plaintiff's claim against a defendant).

officers were unlawful and in violation of federal laws and the

Constitution of the United States." J.A. at 7, 8; Compl. B. Section 1983 Liability for Memphis

¶¶ 25, 28. Finally, the Union alleges that, by means of their

conspiracy with the other Defendants, Pro-Tech and Phillips To set forth a cognizable § 1983 claim against a

were acting under color of state law. J.A. at 7; Compl. ¶ 27. mu ni cipali ty, a plaintiff must allege that (1) agents of the

mu ni cipali ty, while acting under color of state law, (2)

II. DISCUSSION violated the plaintiff's constitutional rights, and (3) that a

municipal policy or policy of inaction was the moving force

A. Standard of Review behind the violation. City of Canton v. Harris , 489 U.S. 378,

379 (1989).

This court reviews de novo a district court's decision

regarding a motion to dismiss, pursuant to FRCP 12(b)(6), 1. The Actions of the On-Duty Police Officers

because the district court decision is based purely on the legal

sufficiency of a plaintiff's case. Barrett v. Harrington , 130 There is no doubt that the Union has sufficiently pleaded

F.3d 246, 251 (6th Cir. 1997). Under the liberal notice the first two elements, "acting under color of law" and "a

pleading rules, a complaint need only put a party on notice of violation of protected rights," regarding the actions of the on-

the claim being asserted against it to satisfy the federal rule duty officers. At issue is whether the phrases "conspired with

requirement of stating a claim upon which relief can be Memphis, through its on-duty and off-duty MPD police

granted. FED.R.CIV.P. 8(a); Swierkiwicz v. Sorema N.A. , 534 officers, to engage in the police misconduct" or "Memphis,

U.S. 506, 508 (2002) (holding that a court may dismiss a through its on-duty and off-duty police officers, has engaged

complaint only if it is clear that no relief could be granted in a pattern of police misconduct," sufficiently allege the third

under any set of facts that could be proved consistent with the element.

allegations). A complaint need not anticipate every defense

and accordingly need not plead every response to a potential A municipal "custom" may be established by proof of the

defense. Poe v. Haydon , 853 F.2d 418, 424 (6th Cir. 1988) knowledge of policy making officials and their acquiescence

in the established practice. See Fletcher v. O'Donnell , 867 Stengel v. Belcher , 522 F.2d 438, 441 (6th Cir. 1975).

F.2d 791, 793-94 (3d Cir. 1989). In its complaint, the Union Accordin gly, this court has held that a police officer acts

contends that Memphis "knew or reasonably should have under color of state law when he purports to exercise official

known that the actions of the on-duty and off-duty MPD auth orit y. Waters v. City of Morristown, Tennessee, 242 F.3d

police officers were unlawful and in violation of federal laws 353, 359 (6th Cir. 2001). Such manifestations of official

and the Constitution of the United States." J.A. at 8; Compl. authority include flashing a badge, identifying oneself as a

¶ 28. While the Union fails to specifically allege that there police officer, placing an individual under arrest, or

was knowledge on the part "of policymaking officials," a intervening in a dispute between third parties pursuant to a

plaintiff need not anticipate every defense and accordingly duty imposed by police department regulations. See, e.g.,

need not plead every response to a potential defense. Poe , Layne v. Sampley , 627 F.2d 12, 13 (6th Cir. 1980).

853 F.2d at 424.

In the instant case, the off-duty officers were employed by

Furthermore, the Union does not state that the unlawful a private firm to provide security services for a private actions were part of an established practice: the closest it comp any. The Union alleges that off-duty officers harassed, comes is the phrase "engaged in a pattern of police intimidated, and threatened to arrest and harm picketers at the misconduct." It is possible that this phrase is used in Phillips facility , and claims that these threats and actions, reference to the actions of the on-duty officers with regard to made through the use of one's police officer status, are all this particular strike (as opposed to a pattern or practice of indicia of acting under the color of state law. Under the facts strike-breaking). Nonetheless, because this court "must alleged, it is possible that an on-duty police officer working construe the complaint in the light most favorable to the the picket line confronts a Union member one hour, goes plaintiffs," the broader interpretation (i.e., that the Union is home and changes uniforms, then comes back to the exact alleging a pattern or practice) is the proper interpretation. same picket as an off-duty police officer and performs the Accordin gly, to the extent that the district court's grant of the same acts. Even more, it is possible that an off-duty police defendants' motion to dismiss applies to the liability of officer threatens to arrest a Union member, goes home and Memphis for the actions of the on-duty police officers, we changes into uniform, then comes back and follows through reverse the decision of the district court. with that threat. Under such circumstances, the line

separating the color of law becomes blurred, if not altogether conduct and deprive citizens of federal and constitutional employed for the purpose of strike-breaking), or that there rights in order to break a strike. The Complaint, however, was knowledge on the part "of policymaking officials." A merely alleges that Memphis has "a policy and practice of complaint need not anticipate every defense and accordingly allowing off-duty p olice officers to be hired by private need not plead every response to a potential defense. Poe , security companies (including Pro-Tech)." J.A. at 3,4; 853 F.2d at 424.

Compl. ¶ 14. It is the latter contention that must be

scrutinized under FRCP 12(b)(6), and, while this allegation^3. Conspiracy in Violation of § 1983

might satisfy the third element, that Memphis be the "moving

force," it cannot be said with certainty that allowing police The complaint alleges that Phillips and Pro-Tech

officers to work as private security guards, in and of itself, "conspired with Memphis, through its on-duty and off-duty

would sufficiently allege a violation of federally-protected MPD police officers to engage in the police misconduct . . . ."

rights. J.A. at 6; Compl. ¶ 22. Such an allegation could be

interpreted to state that the source for the municipal liability

The Union does contend that Memphis "knew or was the police officers acting in their individual capacities as reasonably should have known that the actions of the on-duty decision makers. To connect the actions of the police officers and off-duty MPD police officers were unlawful and in with Memphis, that interpretation would rely on the doctrine violation of federal laws and the Constitution of the United of respondeat superior , which cannot form the basis for States." J.A. at 8; Compl. ¶ 28. If this statement is designed municipal liability under § 1983. Monell , 436 U.S. at 691. to allege either negligence or respondeat superior as a basis Alternativ ely, this allegation, interpreted in the light most for liability on the part of Memphis, then it is insufficient. favorable to the Union, could state that the source for the Neither negligence, see Daniels v. Williams , 474 U.S. 327, municipal liability was the conspiracy "with Memphis." 330 (1986), nor the doctrine of respondeat superior , see Because we are constrained to accept the latter, "most Monell v. New York City Department of Social Services , 436 favorable," interpretation, the motion to dismiss the U.S. 658, 691 (1978), can provide the basis for § 1983 conspiracy claim against Memphis is denied. municipal liability.

C. Section 1983 Liability for Phillips

If, however, this statement is designed to support an

allegation that Memphis evidences deliberate indifference to To sustain a § 1983 claim, plaintiff must establish that it

the rights of its inhabitants, such a shortcoming can be was deprived of a right secured by the Constitution or laws of

properly thought of as a city policy or custom that is the United States, and that t hi s d eprivati on was caused by a

actionable under § 1983. See City of Canton, 489 U.S. at 389. person acting under the color of state law. Flagg Bros., Inc.

Again, because this court "must construe the complaint in the v. Brooks, 436 U.S. 149, 155 (1978); Ellison v. Garbarino , 48

light most favorable to the plaintiffs," the broader F.3d 192, 194 (6th Cir. 1995).

interpretation (i.e., that the Union is alleging deliberate

indifference) is the proper interpretation. Furthermore, the When a defendant is a private entity, this circuit recognizes

Union does not need to allege that the unlawful actions were three tests for determining whether its conduct is fairly

part of an established practice other than allowing police attributable to the state: the public function test, the state

officers to be employed by private firms (as opposed to being compulsion test, and the nexus test. Wolotsky v. Hohn , 960

F.2d 1331 (6th Cir. 1992). The public function test "requires A civil conspiracy is an agreement between two or

that the private entity exercise powers which are traditionally more persons to injure another by unlawful action.

exclusively reserved to the state." Id . at 1335. The state Express agreement among all the conspirators is not

compulsion test requires proof that the state significantly necessary to find the existence of a civil cons pi racy.

encouraged or somehow coerced the private party, either Each conspirator need not have known all of the

overtly or covertly, to take a particular action so that the details of the illegal plan or all of the participants

choice is really that of the state. Id . Finally, the nexus test involved. All that must be shown is that there was

requires a sufficiently close relationship between the state and a single plan, that the alleged coconspirator shared

the private actor so that the action taken may be attributed to in the general conspiratorial objective, and that an

the state. Id . overt act was committed in furtherance of the

conspiracy that caused injury to the complainant.

Application of these tests to the conduct of a private enti ty,

however, is relevant o nly in cases in which there are no Id . at 943-44; Moore , 890 F.2d at 834; see also Pillette v.

allegations of cooperation or concerted action between state Detroit Police Dept. , 661 F. Supp. 1145 (E.D. Mich. 1987),

and private actors. Cooper v. Parrish , 203 F.3d 937, 952 n.2 aff'd , 852 F.2d 1288 (6th Cir. 1988).

(6th Cir. 2000) ("If a private party has conspired with state

officials to violate constitutional rights, then that party In the present complaint, all of the elements of conspiracy

qualifies as a state actor and may be held liable pursuant to are sufficiently alleged: it is alleged that a single plan existed

§ 1983 . . ."); Moore v. City of Paducah , 890 F.2d 831, 834 ("was the result of an agreement"); that the conspirators

(6th Cir. 1989) (holding that individuals who conspire with shared in the general conspiratorial objective ("to deprive [the

state actor to deprive individuals of their federally -protected Union] of its rights, privileges and immunities"), and that an

rights may be found to have acted under color of state law for overt act was committed (that Memphis "continuously

purposes of § 1983 liability ). Private persons may be held conferred with agents of Phillips and Pro-Tech before

liable under § 1983 if they willfully participate in joint action confronting members of the [Union]" and "that Phillips

with state agents. Dennis v. Sparks , 449 U.S. 24, 27-28 directed and conspired with the City of Memphis to direct

(1980); United States v. Price , 383 U.S. 787 (1966) (stating police officers to harass, threaten and intimidate the plaintiff")

that to act under color of law does not require that the accused in furtherance of the conspiracy that caused injury (several

be an officer of the State. It is enough that he is a willful violations are alleged). J.A. at 6; Compl. ¶ 23. Accordi ngly,

participant in joint activity with the State or its agents.); the Union has alleged facts, which if believed, state a claim

Hooks v. Hooks , 771 F.2d 935, 943 (6th Cir. 1985) ("Private against Phillips for which relief could be granted.

persons jointly engaged with state officials in a deprivation of

civil rights are acting under color of law for purposes of D. Section 1983 Liability for Pro-Tech

§ 1983.").

In the complaint, the Union contends that Pro-Tech

The standard for proving a civil conspiracy was set forth in provides security services for Phillips, and that some Pro- Hooks v. Hooks , 771 F.2d 935 (6th Cir. 1985): Tech employees are off-duty officers of the MPD. It is

further contended that "Pro-Tech and its agents, conspired with Memphis, through its on-duty and off-duty officers, to

engage in the police misconduct." J.A. at 6; Compl. ¶ 22.

Pro-Tech cites Fa'Dee Mulazim v. Corrigan , No. 00-1303,

2001 U.S. App. LEXIS 5382 (6th Cir. 2001) (unpublished)

(stating that where an allegation is "wholly conclusory and

totally un su pported by any facts" or "premised upon mere

conclusions and opinions" it will fail to state a claim), to

support its assertion that these allegations are conclusory and

cannot support a civil rights claim. Unlike the complaint in

Corrigan , however, the allegations in the present complaint

are neither "wholly conclusory and totally unsupported by

any facts" nor "premised upon mere conclusions and

opinions." The conspiracy analysis applied above to Phillips,

which contains sufficient allegations, is the same conspiracy

analy sis applicable to Pro-Tech. Therefore, the motion to

dismiss the complaint as to Pro-Tech is denied.

III. CONCLUSION

For the reasons stated above, the district court's decision to

dismiss the claims against Memphis, Phillips and Pro-Tech is

REVERSED and REMANDED .