*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-60816

Summary Calendar

_____________________

JOHN P. HEY; JOHN W. JENNINGS, JR.,

Plaintiffs-Appellants,

versus

TYREE IRVING, In His Individual

Capacity; FRED B. CLARK, Individually;

CARL PALMER, Individually,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for

the Northern District of Mississippi

(4:93-CV-180-S-B)

_______________________________________________________

October 2, 1998

Before REAVLEY, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

John P. Hey and John W. Jennings, Jr., two cameramen for The

Taxpayers Channel, sued three members of the Leflore County

Democratic Executive Committee (“DEC”), Tyree Irving, Carl

Palmer, and municipal judge Fred B. Clark in their individual

capacities under 42 U.S.C. § 1983, alleging that the defendants

conspired to arrest them when they refused to stop filming the
2

DEC meeting in violation of their constitutional rights. The

district court dismissed the case under FED. R. CIV. P. 12(b)(6),

finding that (1) the amended complaint was not sufficient to

support a claim of conspiracy necessary to establish that the

defendants acted under color of law, and (2) the plaintiffs

suffered no constitutional deprivation. For the reasons stated

below, we affirm.

In this appeal, plaintiffs claim the district court

improperly dismissed their § 1983 claim because:

(a) the amended complaint sufficiently alleged that Judge

Clark’s non-judicial acts of conspiracy, for which he is not

immune, were under color of law;

(b) the amended complaint sufficiently alleged that private

defendants Irving and Palmer acted under color of law by

conspiring with Judge Clark to deprive Plaintiffs of their

constitutional rights; and

(C) Defendants’ conspiracy to subvert the warrant requirement of

a probable cause determination by a neutral and detached

magistrate, which resulted in plaintiffs’ arrest, violated

their rights under the First, Fourth, and Fourteenth

Amendments of the Constitution.

Judge Clark was immune from suit for his alleged

participation in the conspiracy. As for defendants Irving and

Palmer, the amended complaint was not pleaded with sufficient

specificity to support a claim of conspiracy under § 1983. 

Because the district court properly dismissed the complaint on
3

that basis, we do not reach the question of constitutional

deprivation.

II. DISCUSSION

A. Standard of Review

We review the district court’s dismissal of the complaint

under FED. R. CIV. P. 12(b)(6) de novo. See Blackburn v. City of

Marshall, 42 F.3d 925, 931 (5th Cir. 1995). We accept the

factual allegations in the amended complaint as true. Id. “A

Rule 12(b)(6) dismissal will not be affirmed ‘unless it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.’” Id.

(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102,

2 L. Ed. 2d 122 (1994)). “[D]ismissal is proper if the complaint

lacks an allegation regarding a required element necessary to

obtain relief.” Id. “[C]onclusory allegations or legal

conclusions masquerading as factual conclusions will not suffice

to prevent a motion to dismiss.” Id. (quoting Fernandez-Montes

v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

B. Section 1983 Claim

To state a cause of action under 42 U.S.C. § 1983,

Plaintiffs must allege that the defendants acted “under color of

law” and that the defendants deprived them of their

constitutional rights. See Adickes v. S.H. Kress & Co., 398 U.S.

144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970).
 

1 Plaintiffs concede that defendants are not state actors

by virtue of their membership in the DEC. The claim against Fred

Clark is only for his non-judicial actions. Finally, Carl Palmer

is not a state actor simply by virtue of being a city councilman.

4

1. Actions under color of law.

Plaintiffs sued each defendant in his individual capacity.1

Thus, these private defendants are acting under color of law for

purposes of § 1983 only if they “jointly engaged with state

officials in the challenged action.” Dennis v. Sparks, 449 U.S.

24, 27-28, 101 S. Ct. 183, 186, 66 L. Ed. 2d 185 (1980). 

The basis of plaintiffs’ claim is that the three defendants

conspired together to have them arrested in violation of their

constitutional rights. “To establish a cause of action based on

conspiracy a plaintiff must show that the defendants agreed to

commit an illegal act.” Arsenaux v. Roberts, 726 F.2d 1022, 1024

(5th Cir. 1982) (citation omitted). General conclusory charges

of conspiracy with “no specific allegation of facts tending to

show a prior agreement” cannot survive a motion to dismiss. See

id. at 1023-24. The complaint must include specific factual

allegations showing a prior agreement, plan or meeting of the

minds between the defendants and a state actor. See Woodrum v.

Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989); Cole v.

Gray, 638 F.2d 804, 811 (5th Cir.), cert. denied, 454 U.S. 838,

102 S. Ct. 144, 70 L. Ed. 2d 120 (1981). 

We consider the claim against each defendant in turn.

a. Judge Clark
 

2 Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984)

(en banc), is inapposite as the city auditor who purportedly used

his influence with other city officials was not even a defendant

in the case and this court made no determination as to whether

the auditor’s actions were under color of law. See id.

Plaintiffs also misconstrue Howard Gault Co. v. Texas Rural

Legal Aid, Inc., 848 F.2d 544 (5th Cir. 1988). This case does

not stand for the proposition that a defendant acting in his

private capacity is a state actor because he influenced state

officials. This case involved three criminal district attorneys

who, while representing a client in a private action, engaged in

official conduct and used the resources of other state officials

to help their clients. We held that the clients were state

actors by virtue of their conspiracy with the attorneys, acting

in their official capacity, and other state officials. See id.

at 554-55. Contrary to plaintiffs’ assertion, the attorneys were

not cast as private defendants who acted under color of law by

influencing other state officials; they were characterized as

acting in their official capacities. See id.

5

As plaintiffs concede, Clark enjoys absolute immunity for

his judicial acts, which in this case amount to issuing the

arrest warrants. See Brewer v. Blackwell, 692 F.2d 387, 396 (5th

Cir. 1982). A judge is not immune, however, from liability for

his non-judicial acts. See id.

As an initial matter, we reject plaintiffs’ argument that

Clark was a state actor because he used his judicial position to

influence and control the police. Absent specific factual

allegations showing that Clark conspired with police to

effectuate the arrests, the conclusory allegation that Clark

influenced the police is insufficient to establish state action. 

The cases cited by plaintiffs were either inapposite2 or involved

a conspiracy between the defendant and the state official. See

Scott v. Dixon, 720 F.2d 1542, 1546 (11th Cir. 1983), cert.

denied, 469 U.S. 832, 105 S. Ct. 122, 83 L. Ed. 2d 64 (1984)

(evidence that former chairman of board of commissioners
6

allegedly conspired with state court clerk to issue arrest

warrant and used his prior position to influence police officers

to execute the warrant could support a finding of state action);

Williams v. City of Luling, 802 F. Supp. 1518, 1528 (W.D. Tex.

1992), appeal dismissed, 12 F.3d 209 (5th Cir. 1993) (complaint

“alleged an abundance of facts which support the existence of a

conspiracy” between the defendant, who was the former police

chief, and police officers).

Second, plaintiffs argue that Clark acted under color of law

by conspiring with Irving and Palmer to arrest Plaintiffs in

violation of their constitutional rights. They assert that

Clark’s overt acts in furtherance of the conspiracy, prior to

issuance of the arrest warrants, were non-judicial acts for which

he is not immune. This argument was specifically rejected in

Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied, 474

U.S. 1037, 106 S. Ct. 605, 88 L. Ed. 2d 583 (1985). In Holloway,

we stated that “[i]t is a well established rule that where a

judge’s absolute immunity would protect him from liability for

the performance of particular acts, mere allegations that he

performed those acts pursuant to a bribe or conspiracy will not

be sufficient to avoid the immunity.” Id. at 522 (emphasis

added). Even if Clark conspired with the other defendants as

alleged, he is still entitled to absolute immunity because the

alleged harm resulted from a judicial act -- the issuance of the

arrest warrants. See id. at 523.

b. Irving and Palmer
7

The amended complaint alleges that Irving and Palmer acted

under color of law by conspiring with Judge Clark to effectuate

the alleged unlawful arrests. As the Supreme Court held in

Dennis, even where the judge is immune from suit, “[p]rivate

parties who corruptly conspire with a judge in connection with

[judicial] conduct are . . . acting under color of state law

within the meaning of § 1983 . . . .” 449 U.S. at 29, 101 S. Ct.

at 187, 66 L. Ed. 2d 185. But, as noted above, general

conclusory charges of conspiracy with “no specific allegation of

facts tending to show a prior agreement” cannot survive a motion

to dismiss. See Arsenaux, 726 F.2d at 1023-24. Here,

plaintiffs’ bare conclusory allegation that “[a]ll three

defendants demonstrated a meeting of the mind” absent any

specific facts showing that the defendants reached an agreement

to violate their rights, is not sufficient to plead a § 1983

conspiracy. See, e.g., Woodrum, 866 F.2d at 1126; Cole, 638 F.2d

at 811. 

Further, we reject plaintiffs’ argument that Irving and

Palmer were state actors by causing the police to abdicate their

authority to the defendants. The cases plaintiffs rely on for

this proposition required the existence of an agreement or prearranged plan between the police and the defendants. See Sims v.

Jefferson Downs Racing Ass’n, 778 F.2d 1068, 1079 (5th Cir.

1985); Cruz v. Donnelly, 727 F.2d 79, 82 (3rd Cir. 1984). 

Plaintiffs have alleged no specific facts showing an agreement

between the defendants and the police.
8

2. Constitutional Deprivation

Because we conclude that Clark is entitled to judicial

immunity and that the amended complaint fails to establish that

Irving and Palmer acted under color of law, we need not address

the issue of whether the defendants’ actions resulted in a

deprivation of the plaintiffs’ constitutional rights.

Affirmed.