* Th is decisi on was ori ginal ly i ssued as an “unpublished decision”

fil ed on Janu ary 21, 2004 . O n March 3 , 2004, the court designated the opinion as one recommend ed for full -text publication.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0083P (6th C ir.) File Name: 04a00 83p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

M EM PHIS , T ENNESSEE A REA L OCAL , A MERI CAN P OSTAL W ORKERS U

NION , AFL- CIO a/k/a A MERI CAN P OSTAL W ORKERS U

NION , L OCAL 96, Plaintiff- Appellant

,

v.

C ITY OF M EM PHIS ; H. B. P HILL IPS , I

NC .; P RO -T ECH S ECUR ITY , I

NC ., Defenda nts-Appe llees. X - - - -

> , - - - - - - - - - - N No. 02-5694

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis No. 01-03011—Bernice B. Donald, District Judge.

Argued: October 24, 2003
Decided and Filed: January 21, 2004 * 2 Memphis, TN Area Local v. City of Me

mphis, et a l. No. 02-5694

Befor e: KEI TH, MARTI

N, and SUT TON, Circ

uit Judges

.

_________________ COUNSEL

ARGUED: Peter J. Leff, O’DONNEL L, SC HWAR TZ & ANDERSO

N, W ashingt

on, D.C., f

or Appel lant. Dav

id P. Knox, FOR

D & H ARR ISON , Me mp hi s, T enn ess ee, Hen ry L. Klein, APPE RSO N, CRUMP & M AXWELL, Me

mphis, Tennessee, Debra L. Fe ssenden, LAW OFFI CES OF THOMAS E. HANSOM, Memphis, Tennessee, for Appellee s. ON BRI EF: Pet er J . Lef f, O ’DO NNE LL, SCHWARTZ & ANDER SON, Washin gton, D. C.
, for Appellan t. David P. K

nox, FORD &

HARRI SON, Memph

is, Ten ness ee, Henry

L. Kle in, APPERSON , CRUMP & MAX WE LL, Memphis, Tennessee, De bra L. Fessende n, Thomas Edwards Hansom, LAW OFF ICES OF THOMAS E. HAN SOM, Memphis, Tennessee, Bri an L. Kuhn, SHELBY COUNTY ATTORNEY’S OFFI CE, Memphis, Tennessee, for Appe llees.

_________________

OPINION

_________________ DAMON J. KEITH, Circui t Judge. T

his is an appeal of

the order dismissing for failure to state a cause of actionthis civil right s action arising from the Defenda nts-Appellees’ activities relative to picketing by

the Plaintiff-Appellant. In light of the liberal plead ing s t andards set forth in Fede ral Rule o f Civil Procedure (“FRCP”) 8(a), and adhe red to by the fe deral courts, the district court’s dec ision to gran t the Def endants’ moti ons to dismiss is REVERSED and REMANDED

for the reasons set forth below.No. 02-5694 Memphis, TN Area Local v. City of Me

mphis, et a l. 3

I. BACKGROUND

On Dec emb er 1 9, 2 001 , Me mp hi s, T enn ess ee A rea Lo ca l 96 (“Union”) filed

a compla int aga inst the City

of Memphi s (“Memphis”), H. B. Phill ips, Inc. (“Phillips”), and Pro-Tec h Se cu ri ty, Inc . (“Pro- Tech”)inthe United States District Court for the Western District of

Tennessee. The Union pray ed for inju nctive relief, as well a s compens atory and punit

iv e damage s. The complaint alleges that a deprivation of the Union’s rights under the National L abor Relations Act and the U.S. Constitution, in violation of 42 U.S.C. § 1983, ar

ose during the course of

the Union’s strike at Phillips. The Union inits complaint avers that this deprivation was caused by onduty and off-duty police

officers of the Memphis Police Department (“MPD”), acting under color of state l aw and in accordancewith a Memphis policy or custom, at

the direction of and through a conspiracy with Phillips an d Pro-Tech and their agents.

OnFebruary

1, 2002, Pro-Tech filed a motion to di smiss the Union’s complaint pursuan t to F RCP 12(b)(6) or, in the alternative, for sum m ary judg ment. On February

5, 2002, Memphis file d a motion to dismiss. On February 14, 2002, Phillips filed a motion to dismiss. On Marc h 19, 2002, the Union re sponded to

all three motions.

OnMay 1, 2002 , the district court considered Pro-Tech’s mot io nto dismiss or, in the alternative, for summary judgmen t, as a motion to d

ismiss purs

uant to FR

CP 12(b)(6) and grante d the motio n, thereby dismissing the U nion’s claims against Pro-Tech. On May 1, 2002, the

district court granted Mem phis’ mot ion to dismiss. On May 2, 2002, the districtcourt granted

Phillips’ mo tion to dismi ss. On May 20, 2002, the distri ct court

entere d ju dgmen t by dismissing the Union’s claims against Memp his, Ph i llips and Pr

o-Tech in accordancewith the May

1 and 2 Orders. On May 21, 2002, the Union filed a Noti ce of Ap peal ap peali ng the Or ders granting the motions to dismiss. 4 Memphis, TN Area Local v. City of Me

mphis, et a l. No. 02-5694

For purposes of the motions to dismiss, the following facts

were taken as true by

the district court , andare treated the same by this court. Since April 3, 2001, the Union has been engaged in “picketingand other expressions” in support of a strike against Phi llips at or nea r Phillips’ s Memphis, Te nnessee facility . Specifi cally , the pick eters tr ied to cal l non-striking employees “sc abs,” tried to shout slogans at the non-striking employees, and tr ied to use s ound a mplifying devices (such as megaphones) to convey their message. During the course of the strike, Memphis has provided police service s, and Pro-Tech has provided secur ity s e rvices at or

near th e f ac il it y. Certain s ecurity

officers employ

ed by ProTech are off-duty

officers of the MPD.

Dur ing the strike, Phillips and Pro-Tech, through on-d ut y and off-duty off

icers of the MPD, have attempted to “interfere with, deter, and intimidate” the Union, and have directed MPD officers to “threaten to engag e inand engage in forc e, violence
, harassment and the unequal enforcement of the law.” J.A. at 10; Compl. ¶¶ 18, 19. Furthermore, “on -dut y MPD po li ce of

fi ce rs co nt in uo us ly c onferred with agents of Phillips and Pro-Tech before confron t ing members of the Union and their sympathizers on the picke t line.” J.A. at 11; Compl. ¶ 20.
Memphis, “through the MPD, has a policy and practice of allowing off-dut

y pol ice off

icers to b e hired by pr ivate security companies (including Pro-Tech).” J.A. at 9;Compl. ¶ 14. All other references to the actions of Me mphis are made inthe following form: “Phillips and its agents, and Pro-Tech and its agents, conspire

d with Memphis, through its on-duty and off-duty M

PD police

officers , to engage in the p olice misconduct

[alleg ed t o have violated the Union’s rights].” J.A. at 12, 13; C ompl. ¶¶ 22, 23, 25, 26, 26 (emphasis added). Sp ec if ic al ly, in paragraph 20 of the complaint, the Union claims that, “Me

mphis, thro

ugh its on -duty

and off- duty police office

rs, eng aged in

a patter n of polic e mi sc onduct” incl udin g: arresting and detaining strikers without ca use,No. 02-5694 Memphis, TN Area Local v. City of Me

mphis, et a l. 5

fail ing to respond to or investigate threats to the saf et y o f strikers (in clu ding allegations that Union members on the picket line were struck by

veh i cles driven by non- striking employees), and compelling strikers to provi de p ersonal info rmation. J.A. at 11, 12. In addition to the unlawful actions of Memphis, singularly, “Phillips and its agents, and Pro-Tech and its ag ents, con spired wi thMemphis, through

its on-duty and off- duty

police of ficers, to enga

ge in the [pattern of] police misconduct

described in ¶ 20 [of the complaint].” J.A. at 11; Compl. ¶ 22. The alleged police mis conduct described in paragraph

20 was “committed in furtherance of the conspiracy ,” and “Memph is knew or r easonab ly should have knownthat the actions of the on-duty a nd off-dut y MPD officers were unlawful and in violation of federal laws and the Constitution o f th e United S tates.” J.A. at 7, 8; C ompl. ¶ ¶ 25, 28. Finally, the Union alleg es that, by means of the i r conspiracy

with the other Defendants, Pro-Tech and Phillips

were acting under color of state law. J.A. at 7; Comp l. ¶ 27.

II. DISCUSSI ON

A. Standard of Review

This cour

t rev iews de novo a district court’s decision regarding a motion to dismiss, pursuant to FRCP 12(b)(6), because the district court

decision is based purely

on the legal sufficiency

of a plai nti ff ’s case. Barrett v. Harrington , 130 F. 3d 246, 251 ( 6th Cir. 199 7). Unde r the libe ral notic e pleadingrules, a

complain t need onl y pu t a party on notice of the claim be ing ass erted a gainst i t to satisf y th e feder

al rule requirement

of stating a claim upon which re lie f can be granted. F ED .R.C IV .P. 8(a); Swierkiwicz v. Sorema N.A. , 534 U.S. 506, 508 ( 2002) (ho lding tha t a court may dismiss a complaint only if it is clear that no re lief could be granted under any set of fa

cts that could be proved

consiste nt with the allegations). A complaint need not ant icip ate eve ry defense and accord ingly need not p lead eve

ry response to apotential def ense. Poe v. Haydon , 853 F.2d 418, 424 (6th Cir. 1988 ) 6 Memphis, TN Area Local v. City of Me

mphis, et a l. No. 02-5694

(stating that a civil rights plaintiff need not anticipate an affirmative defense

which must be pleaded

by the defe

ndant). A court must co nstr

ue the complaint in t

he light most favora ble to the plaintiffs and accept as trueall well-pleaded factual allegations. Cooper v. Parrish , 203 F.3d 93 7, 944 (6th Cir. 2000). Claims made pursuant to 42 U.S.C. § 1983

are not subject

to heightened pleading

standards. Leatherman

v. Tarra nt C

ounty Narcotics Intelligence & Coordination Unit
, 507 U.S. 163, 165-66 (1993) (rejecting heighte ne d pleadingstandards for § 1983 clai ms); Jones v. Duncan , 840 F.2d 359 (6th Cir. 1988) (holding that § 1983 comp laints need not set down in detail all the pa rticularities of a plaintiff’s claim against a defendant).

B. Sectio n 1983 Liabilit

y for Mem

phis

To set forth

a cogn izable § 19 83 claim agains t a
mu ni ci pa li ty, a plaintif

f must a llege that (1) agents of the

mu ni ci pa li ty, while acting under color of state law, (2) violated the plaintiff’s consti tutional r ights, a nd (3) tha

t a municipal policy or

policy of inaction was the moving force behind the violation. City

of Canton v

. Harris , 489 U.S. 378, 379 (1989).
1. The Actions of the On-Duty Police Officers

There is no doubt t

hat the Un

ion has s uffic iently pleaded the first two elem ents, “acting under color of law” and “a violation of protected rights,” reg arding the actions of the onduty officers. At

issue is whether

the phra ses “con spired wi th Memphis, through its on-duty and off- duty MPD police office rs, to enga

ge in the police mis conduct”

or “Memphis, throu gh its on-duty

and off-duty police of

ficers, has engag ed ina pattern of police misconduct,” sufficiently allege the third element.

A municipal “custom” may b e established by proof

of the knowl edge of policy

making o fficial s and

their acquiescenceNo. 02-5694 Memphis, TN Area Local v. City of Me

mphis, et a l. 7

inthe esta

blish ed pract ice. See Flet cher v. O ’Donnel

l , 867 F.2d 791, 793-94 (3d Cir. 198 9). Inits complaint, the Union

c ont ends that Memphis “knew or reasonably should have knownthat the a

cti ons of the on-du

ty a nd off-d uty MPD police officers were unlawful and in violation of federallaws and the Constitution of

the United Sta

tes.” J.A. a

t 8; Compl. ¶ 28. While the Uni o n fails to specifically a llege that there

was knowledg e on the pa rt “ of pol icymaking

officials,” a plaintiff need not a

nti cipate e

very defense and acc ordingl

y need not plead every

response to a potential defense. Poe
, 853 F.2d at 424.

Further more, the Union does not state that the unlawful act ions were pa

rt of an e stablishe d practi ce: the c losest i t

comes is the phrase “engage d in a pa tt ern of police misconduct.” It is p ossible tha t this p hra se is used

in reference to the actions of the on-duty of ficers with regard

to this p articular strike (as opposed to a pattern or pra ctice of strike- brea king). Nonethe less, bec ause this court “m

ust

cons true the complaint in the light most favorable t o th e plaintiffs,” the broad er inter pretation (i.e., t

hat the Un

ion is alleging a pattern or practice ) is the proper interpretation. Ac co rd in gl y, to the extent that the district court’s grant of the defen dants’ motion to dismiss applies to the liability of Memphis for the actions of the on-dut y police officers, we

revers e the dec ision of the district c ourt.
2. The Actions of the Off-Duty Police Officers

The United States Supreme Court has held that actingunder color of state law requires that

a defendant in a § 1983 action have exercised the power “p ossesse d by virtue of state law and made possible only beca

use the wrongdoer is clothed by t he a uthority of state law.” West v. Atkins , 487 U.S. 42, 48 (1988); Redding

v. St. Edwa rd , 241 F.3d

530 (6th Cir. 2001). “It is the natu

re of the act per formed, not the cl o thin g of the actor or even t

he status of being on-duty , or off- duty , whic h determines whether

the officer has acted under color of law.” 8 Memphis, TN Area Local v. City of Me

mphis, et a l. No. 02-5694

Stengel v. Belcher , 522 F.2d

438, 441 ( 6th Cir . 1975)

. Ac co rd in gl y, this court has held t hat a poli ce offi cer acts under color of state law when hepurports to exercise official

au th or it y. Waters v. City of Morristown, Tennessee, 242 F.3d 35 3, 359 (6th Cir. 2001). Such manifestations of of ficia l authority include flashing a badge, ident ifying oneself

as a poli ce off

icer, placing an individual under arre st, or int erv ening in a dispute between third parties pursuant to a duty imposed by police depar tment regulations. See, e.g., Layne v. Sampley , 627 F.2d 12, 13 (6th Cir. 1980).

Inthe instant case, the off-duty of ficers were employ

ed by

a private firm to provi de security service s for a pr

ivate

co mp an y. The Union alleges that off-duty officers harassed, intimidated, and thre atened t o arres tand harm picketers at the Phillips facility

, and cla ims that the se threa ts and actions,

m ade thr ough the

use of one ’s police

office r status, a re all indicia of acting under thecolor of state law . Under t

he fact s alleged, it is possible that an on-duty police office r wo r king the picket line confronts a Union member one hour, goe s home and cha

nges un iforms, then comes

back tothe exact

same picket as an off-duty police officer and performs the

same acts. Eve n more, i t is possible that an off-duty police officer threatens to arrest a Union member, goe s ho me and changes into unifo rm, th en com es back and fo llow s thro ugh wi ththat threat. Under such circumstances, the lin e separating

the color of law becomes blurred, if not altogether indistinguishable. See Screws v. United States , 325 U.S. 91, 107-10 (1945). Therefore, for purposesof the ins tant FRCP 12(b)(6) motion, the

Union has

sufficie ntly pleaded th at t he off-duty police of

ficers were acting unde

r color of law.

There is no dispute th at the Uni on has suf ficientl y alleged violations of fede

rally -protected rig

hts. The remaining issue, therefore, is whether Memphis was the “moving force behind the constitutional violations.” City of Canton, 4 89 U.S. at 389. In its

brief, the Union a sserts that Memphis has a policy

or custom th at its police officers should engage in unlawfulNo. 02-5694 Memphis, TN Area Local v. City of Me

mphis, et a l. 9

conduct and deprive citizens of federal and constitutional rightsin order to br eak a strike. The Complaint, however, merel y alleges that Memphis has “a policy and practice o f allowing off-duty p olice of ficers t o be hire d by

private security companies (including Pro-T ech). ” J.A. at 3,4; Compl

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

under FRCP 12(b)(6), and, while this allegation might satisfy the third element, that Memphis be the “moving force,” i t ca nnot be said with certainty tha t allowing police officers to work as private security guards, in and of itself, would s ufficiently alleg e a violation of federally -protected rights.

Th e Union does contend that Memphis “knew o r
reasona bly should have known

that the actions of

the on-du ty and off-duty MPD police off icer s wer e unlawf

ul and in

v io lation of federal laws and the Constitution of the United States.” J.A. at 8; Compl. ¶ 28. If this statement is designed to allege either neglig ence or r e spondeat superior as a basi s for liability on thepart o f Memphis, then it is in sufficie nt. Neither negligence, see Dani

els v. W ill i ams , 474 U.S. 327, 330 (1986), nor the doctrine o f respo ndeat superior
, see Monell v. New York City Department of Social Services , 436 U.S. 658, 691 (1978), can prov ide t he basis for § 1983 municipal liability.
If, however , this s tatement is designed to suppo rt an allegation that Memphis evidenc es delibe rateindiffer

ence to the rights of its inhabitants, such a shortcoming can b e properl y thought of as a city

po licy or

custom tha

t is actiona ble under § 1983. See City of

Canton, 489 U.S. at 389. Again, because this court

“must construe the complaint in the light most favorable to

t he plaintiffs,” the broader interpretation

(i.e. , that the Un ion i s alle gi ng deliber ate indifference) is the proper interpretation. Further more, the Uniondoes not need to allege that theunlawful actions were part of an establishe d p ractice other than allowing police officers to be employed by private firms (as opposed to being 10 Memphis, TN Area Local v. City of Me

mphis, et a l. No. 02-5694

employed for the purpose of strike -breaki ng), or that there

was kn ow ledge on the part “of policy making officials.” A complaint need not anticipate every

defense and

accord ingly need not plead every

response to a potential defense. Poe
, 853 F.2d at 424.

3. Conspiracy in Violation of § 1983

Th e complaint alleges that Phillips and Pro-Tec h “conspired

with Memphis, through its on-duty and off -du ty MPD police officers to engag e in the police misconduct . . . .” J.A. a t 6; Compl. ¶ 22. Such an allegation could be interpreted to state that the source for the municipa l liability

was the police officers acting in their individual capa cities as decisionmakers. To connect the actions of the police officers with Memphis, thatinterpretation would rely onthe doctrine of responde

at su perior
, which cannot form the basis for municipal liability

under § 1983. Monell , 436 U.S. at 691. Al te rn at iv el y, this alleg ati on, i nterpre ted in the light most favora ble to the Union, could state that the sou rce for the municipal liability

was the c onspirac

y “ with Me mphi s.” Becau se we are constrained to accept the latter, “ most favor able,” interpretation, the motion to dismiss the conspiracy

claim against Memphis is denied.

C. Secti on 1983 Liabil

ity for P hillips

To su stain a § 1983 cla

im, plainti ff must es tablish tha t it

was deprived of a right

secured by

the Constitution or laws of the United States, and t ha t t hi s d ep ri va ti on wa s c au se d b y a person acting

under the color

of state law. Flagg Bros., Inc.

v. Brooks, 436 U.S. 14 9, 155 (19 78); Ellison v. Garbarino , 48 F.3d 192, 194 (6th Cir. 1995).

When a defen

dant is a private e

ntity , this circuit

recognizes three tests for

determin

ing w hether i

ts conduct is fairly attributa ble to the stat

e: the pub lic func tion test, t he state

c ompul sion test, and the nexus test. Wolotsky v. Hohn , 960No. 02-5694 Memphis, TN Area Local v. City of Me

mphis, et a l. 11

F.2d 1331 (6th Cir. 1992). The public function test “requires that the priva te entity exercise powers w

hich are traditionally exclusive ly

reserved to the state.” I d . at 13 35. The st

ate compulsion test requires proof that the state signi ficantly encouraged

or somehow coerced the p rivate party, either overtly or covertly, to take

a particular

ac tion so that the choice is really that of the state

. Id . Finally, the nex us test requires a suffic iently

closerelationship between the state and the private actor so that the action taken may be

attributed

to the state. Id

. Applicationof these

tests to the conduct

of a p ri va te en ti ty, however, is relev an t o nl y in cases in which there are no al legations of coope

ration or concer ted action betwee

n sta t e and private actors. Cooper v. Parrish
, 203 F.3d 937, 952 n.2 (6th Cir. 2000) (“If a priva

te par ty h as conspire d with stat e officia ls to violate constitutional rights, then that party qualifies as a state actor and may be held liable pur suant to § 1983 . . .” ); Moor e v. City of Paducah , 890 F.2d 831, 834 (6th Cir. 1989)

(holding that indivi duals who

conspire with state actor to deprive individuals of their federally -protected rightsmay be

found to have acted under color of state law for purpose s of § 1983 li ability ). Privat e person s may

be held liableunder § 1 983 if the

y willfully

particip ate in

joint action wit h state agents. Dennis v. Sparks , 449 U.S. 24, 27 -2 8 (1980); Un ited Sta tes v. Price , 383 U.S. 787 (1966) (stating that to act under color of law does not require that the accuse d be an officer of the State. I t is enough that he is a willful participant

in joint activity with the State or its agents.); Hooks v. Hooks , 771 F.2d 935, 943 ( 6th Cir. 198 5) (“Pri vate persons jointly

engag ed with

state officials in a deprivation of civilrights are acting under c olor of law for p urposes of § 1983.”).

The standard for proving a civil conspiracy was set forth

in Hooks v. Hooks , 771 F.2d 935 (6th Cir . 1985): 12 Memphis, TN Area Local v. City of Me

mphis, et a l. No. 02-5694

A civil conspiracy is an a gree ment between two or

more persons to i nju re another by unlawful action. Express agreement among all the c onspirators is not necessary to find the existence

of a civi l co ns pi ra cy. Eac h consp irator need not have known all of the detailsof the illegal plan o r all of the particip ants involved. All t

hat mu st be shown is that there was

a single pl an, that the alleged coconspirator share d inthe g ene ral conspiratorial objective, and that an overt act w as committed in furtherance of the conspiracy

that caused injury to the c omplainant.

Id

. at 943-44 ; Moore , 890 F.2d at 834; see also P

illett e v. Detroit Police D ept. , 661 F. Supp. 1145 (E.D. Mich. 1987), aff’d , 852 F.2d 1288 (6th Cir. 1988).

In the present complain t, all of the elements of conspiracy

are sufficiently alleg ed: it is alleg ed that a single plan existed (“was the result of an agreement”) ; that the conspirators shared in the general

conspira torial obj ective ( “to deprive [the Union] of its rights, privileges and immunities”), and that an

over t actwas commi

tted (tha t Memphis “ continuou sly

c onferred with agents of Phillips and Pro-Tech before confrontingmembers of the [Union]” and “that Phillips directed and conspired with the C ity of Memphis to direct police offic ers to harass,threaten and intimidate the plaintiff”) infurtherance of the conspiracy that cau sed inj ury (seve ral violations are alleged). J.A. at 6; Compl. ¶23 . A cc or di ng ly, t he Union has alle ged fa

cts, whic h if belie ved, stat e a clai m against Phillips for which relief could be gra nted.
D. Section 1983 Liability for Pro-Tech

Inthe complaint, the Union contends that Pro-Tech prov i des security ser

vices for Phillips, and that some ProTech employees ar

e off-duty of

ficers of the MPD. It is further contended that “Pro-Tech and its age nts, con spi redNo. 02-5694 Memphis, TN Area Local v. City of Me

mphis, et a l. 13

with Memphis, through its on-duty and off-dut y of ficers, to engage in the police misconduct.” J.A. at 6; Compl. ¶ 22.

Pro-Tec h cites Fa’Dee Mulazim v. Corrigan , No. 00-1303, 2001 U.S. App. LEXI S 538 2 (6 th Cir. 2001) (unpublished) (stating that where an allegation is “wholly conclusory a

nd totally un su pp or te d b y an y fac ts” or “premised upon mere conclusions and opinions” it will fail to state a cl aim), t o support its assertionthat these allegations are conclusory and cannot support a civil rights claim. Unlike the compl aint in Corrigan
, however, the allegations in the present complaint

are neither

“wholly conclusory

and total ly unsupported by any facts” nor “premised upon mere conc lusions and opinions.” The conspiracy analysis applied above

to Phillips, whichcontains sufficient allega tions, is the same conspiracy analy sis applica

ble to Pro- Tech. Th

erefor e, the mot

ion to dismiss the complaint as to Pro-Tech is denied.

III. CONCL USION

For the reasons stated

above, the district court’s decision to dismiss the claims against Memphis, Ph

illips and Pr

o-Tech is REVERSED and REMANDED

.