*

This decision was originally issued as an “unpublished decision”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

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0083P (6th Cir.)

File Name: 04a0083p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

MEMPHIS, TENNESSEE AREA

LOCAL, AMERICAN POSTAL

WORKERS UNION, AFL-CIO

a/k/a AMERICAN POSTAL

WORKERS UNION, LOCAL 96,

Plaintiff-Appellant,

v.

CITY OF MEMPHIS; H. B.

PHILLIPS, INC.; PRO-TECH

SECURITY, INC.,

Defendants-Appellees.

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No. 02-5694

Appeal from the United States District Court

for the Western District of Tennessee 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 Memphis, et al.

No. 02-5694

Before: KEITH, MARTIN, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Peter J. Leff, O’DONNELL, SCHWARTZ &

ANDERSON, Washington, D.C., for Appellant. David P.

Knox,FORD & HARRISON, Memphis, Tennessee, Henry L.

Klein, APPERSON, CRUMP & MAXWELL, Memphis,

Tennessee, Debra L. Fessenden, LAW OFFICES OF

THOMAS E. HANSOM, Memphis, Tennessee, for

Appellees. ON BRIEF: Peter J. Leff, O’DONNELL,

SCHWARTZ & ANDERSON, Washington, D.C., for

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

Tennessee, Henry L. Klein, APPERSON, CRUMP &

MAXWELL, Memphis, Tennessee, Debra L. Fessenden,

Thomas Edwards Hansom, LAW OFFICES OF THOMAS E.

HANSOM, Memphis, Tennessee, Brian L. Kuhn, SHELBY

COUNTY ATTORNEY’S OFFICE, Memphis, Tennessee,

for Appellees.

_________________

OPINION

_________________

DAMON J. KEITH, Circuit Judge. This is an appeal of the

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

rights action arising fromtheDefendants-Appellees’ activities

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

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.
No. 02-5694 Memphis, TN Area Local v.

City of Memphis, et al.

3

I. BACKGROUND

On December 19, 2001, Memphis, Tennessee Area Local

96 (“Union”) filed a complaint against the City of Memphis

(“Memphis”), H. B. Phillips, Inc. (“Phillips”), and Pro-Tech

Security, Inc. (“Pro-Tech”) in the United States District Court

for the Western District of Tennessee. The Union prayed for

injunctive relief, as well as compensatory and punitive

damages. The complaint alleges that a deprivation of the

Union’s rights under the National Labor Relations Act and

the U.S. Constitution, in violation of 42 U.S.C. § 1983, arose

during the course of the Union’s strike at Phillips. The Union

in its 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 law and in

accordance with a Memphis policy or custom, at the direction

of and through a conspiracy with Phillips and Pro-Tech and

their agents. 

On February 1, 2002, Pro-Tech filed a motion to dismiss

the Union’s complaint pursuant to FRCP 12(b)(6) or, in the

alternative, for summary judgment. On February 5, 2002,

Memphis filed a motion to dismiss. On February 14, 2002,

Phillips filed a motion to dismiss. On March 19, 2002, the

Union responded to all three motions.

On May 1, 2002, the district court considered Pro-Tech’s

motion to dismiss or, in the alternative, for summary

judgment, as a motion to dismiss pursuant to FRCP 12(b)(6)

and granted the motion, thereby dismissing the Union’s

claims against Pro-Tech. On May 1, 2002, the district court

granted Memphis’ motion to dismiss. On May 2, 2002, the

district court granted Phillips’ motion to dismiss. On May 20,

2002, the district court entered judgment by dismissing the

Union’s claims against Memphis, Phillips and Pro-Tech in

accordance with the May 1 and 2 Orders. On May 21, 2002,

the Union filed a Notice of Appeal appealing the Orders

granting the motions to dismiss. 

4 Memphis, TN Area Local v.

City of Memphis, et al.

No. 02-5694

For purposes of the motions to dismiss, the following facts

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

same by this court. Since April 3, 2001, the Union has been

engaged in “picketing and other expressions” in support of a

strike against Phillips at or near Phillips’s Memphis,

Tennessee facility. Specifically, the picketers tried to call

non-striking employees “scabs,” tried to shout slogans at the

non-striking employees, and tried to use sound amplifying

devices (such as megaphones) to convey their message.

During the course of the strike, Memphis has provided police

services, and Pro-Tech has provided security services at or

near the facility. Certain security officers employed by ProTech are off-duty officers of the MPD.

During the strike, Phillips and Pro-Tech, through on-duty

and off-duty officers of the MPD, have attempted to “interfere

with, deter, and intimidate” the Union, and have directed

MPD officers to “threaten to engage in and engage in force,

violence, harassment and the unequal enforcement of the

law.” J.A. at 10; Compl. ¶¶ 18, 19. Furthermore, “on-duty

MPD police officers continuously conferred with agents of

Phillips and Pro-Tech before confronting members of the

Union and their sympathizers on the picket line.” J.A. at 11;

Compl. ¶ 20. 

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

allowing off-duty police officers to be hired by private

security companies (including Pro-Tech).” J.A. at 9;Compl.

¶ 14. All other references to the actions of Memphis are made

in the following form: “Phillips and its agents, and Pro-Tech

and its agents, conspired with Memphis, through its on-duty

and off-duty MPD police officers, to engage in the police

misconduct [alleged to have violated the Union’s rights].”

J.A. at 12, 13; Compl. ¶¶ 22, 23, 25, 26, 26 (emphasis added).

Specifically, in paragraph 20 of the complaint, the Union

claims that, “Memphis, through its on-duty and off-duty

police officers, engaged in a pattern of police misconduct”

including: arresting and detaining strikers without cause,
No. 02-5694 Memphis, TN Area Local v.

City of Memphis, et al.

5

failing to respond to or investigate threats to the safety of

strikers (including allegations that Union members on the

picket line were struck by vehicles driven by non-striking

employees), and compelling strikers to provide personal

information. J.A. at 11, 12. In addition to the unlawful

actions of Memphis, singularly, “Phillips and its agents, and

Pro-Tech and its agents, conspired with Memphis, through its

on-duty and off-duty police officers, to engage in the [pattern

of] police misconduct described in ¶ 20 [of the complaint].”

J.A. at 11; Compl. ¶ 22. The alleged police misconduct

described in paragraph 20 was “committed in furtherance of

the conspiracy,” and “Memphis knew or reasonably should

have known that the actions of the on-duty and off-duty MPD

officers were unlawful and in violation of federal laws and the

Constitution of the United States.” J.A. at 7, 8; Compl.

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

conspiracy with the other Defendants, Pro-Tech and Phillips

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

II. DISCUSSION 

A. Standard of Review

This court reviews 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 plaintiff’s case. Barrett v. Harrington, 130

F.3d 246, 251 (6th Cir. 1997). Under the liberal notice

pleading rules, a complaint need only put a party on notice of

the claim being asserted against it to satisfy the federal rule

requirement of stating a claim upon which relief can be

granted. FED.R.CIV.P. 8(a); Swierkiwicz v. Sorema N.A., 534

U.S. 506, 508 (2002) (holding that a court may dismiss a

complaint only if it is clear that no relief could be granted

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

allegations). A complaint need not anticipate every defense

and accordingly need not plead every response to a potential

defense. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988)

6 Memphis, TN Area Local v.

City of Memphis, et al.

No. 02-5694

(stating that a civil rights plaintiff need not anticipate an

affirmative defense which must be pleaded by the defendant).

A court must construe the complaint in the light most

favorable to the plaintiffs and accept as true all well-pleaded

factual allegations. Cooper v. Parrish, 203 F.3d 937, 944

(6th Cir. 2000). Claims made pursuant to 42 U.S.C. § 1983

are not subject to heightened pleading standards. Leatherman

v. Tarrant County Narcotics Intelligence & Coordination

Unit, 507 U.S. 163, 165-66 (1993) (rejecting heightened

pleading standards for § 1983 claims); Jones v. Duncan, 840

F.2d 359 (6th Cir. 1988) (holding that § 1983 complaints

need not set down in detail all the particularities of a

plaintiff’s claim against a defendant). 

B. Section 1983 Liability for Memphis

To set forth a cognizable § 1983 claim against a

municipality, a plaintiff must allege that (1) agents of the

municipality, while acting under color of state law, (2)

violated the plaintiff’s constitutional rights, and (3) that 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 that the Union has sufficiently pleaded

the first two elements, “acting under color of law” and “a

violation of protected rights,” regarding the actions of the onduty officers. At issue is whether the phrases “conspired with

Memphis, through its on-duty and off-duty MPD police

officers, to engage in the police misconduct” or “Memphis,

through its on-duty and off-duty police officers, has engaged

in a pattern of police misconduct,” sufficiently allege the third

element.

A municipal “custom” may be established by proof of the

knowledge of policymaking officials and their acquiescence
No. 02-5694 Memphis, TN Area Local v.

City of Memphis, et al.

7

in the established practice. See Fletcher v. O’Donnell, 867

F.2d 791, 793-94 (3d Cir. 1989). In its complaint, the Union

contends that Memphis “knew or reasonably should have

known that the actions of the on-duty and off-duty MPD

police officers were unlawful and in violation of federal laws

and the Constitution of the United States.” J.A. at 8; Compl.

¶ 28. While the Union fails to specifically allege that there

was knowledge on the part “of policymaking officials,” a

plaintiff need not anticipate every defense and accordingly

need not plead every response to a potential defense. Poe,

853 F.2d at 424.

Furthermore, the Union does not state that the unlawful

actions were part of an established practice: the closest it

comes is the phrase “engaged in a pattern of police

misconduct.” It is possible that this phrase is used in

reference to the actions of the on-duty officers with regard to

this particular strike (as opposed to a pattern or practice of

strike-breaking). Nonetheless, because this court “must

construe the complaint in the light most favorable to the

plaintiffs,” the broader interpretation (i.e., that the Union is

alleging a pattern or practice) is the proper interpretation.

Accordingly, to the extent that the district court’s grant of the

defendants’ motion to dismiss applies to the liability of

Memphis for the actions of the on-duty police officers, we

reverse the decision of the district court.

2. The Actions of the Off-Duty Police Officers

The United States Supreme Court has held that acting under

color of state law requires that a defendant in a § 1983 action

have exercised the power “possessed by virtue of state law

and made possible only because the wrongdoer is clothed by

the authority of state law.” West v. Atkins, 487 U.S. 42, 48

(1988); Redding v. St. Edward, 241 F.3d 530 (6th Cir. 2001).

“It is the nature of the act performed, not the clothing of the

actor or even the status of being on-duty, or off-duty, which

determines whether the officer has acted under color of law.”

8 Memphis, TN Area Local v.

City of Memphis, et al.

No. 02-5694

Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975).

Accordingly, this court has held that a police officer acts

under color of state law when he purports to exercise official

authority. Waters v. City of Morristown, Tennessee, 242 F.3d

353, 359 (6th Cir. 2001). Such manifestations of official

authority include flashing a badge, identifying oneself as a

police officer, placing an individual under arrest, or

intervening in a dispute between third parties pursuant to a

duty imposed by police department regulations. See, e.g.,

Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980). 

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

a private firm to provide security services for a private

company. The Union alleges that off-duty officers harassed,

intimidated, and threatened to arrest and harm picketers at the

Phillips facility, and claims that these threats and actions,

made through the use of one’s police officer status, are all

indicia of acting under the color of state law. Under the facts

alleged, it is possible that an on-duty police officer working

the picket line confronts a Union member one hour, goes

home and changes uniforms, then comes back to the exact

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

same acts. Even more, it is possible that an off-duty police

officer threatens to arrest a Union member, goes home and

changes into uniform, then comes back and follows through

with that threat. Under such circumstances, the line

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 purposes of the instant FRCP

12(b)(6) motion, the Union has sufficiently pleaded that the

off-duty police officers were acting under color of law. 

There is no dispute that the Union has sufficiently alleged

violations of federally-protected rights. The remaining issue,

therefore, is whether Memphis was the “moving force behind

the constitutional violations.” City of Canton, 489 U.S. at

389. In its brief, the Union asserts that Memphis has a policy

or custom that its police officers should engage in unlawful
No. 02-5694 Memphis, TN Area Local v.

City of Memphis, et al.

9

conduct and deprive citizens of federal and constitutional

rights in order to break a strike. The Complaint, however,

merely alleges that Memphis has “a policy and practice of

allowing off-duty police officers to be hired by private

security companies (including Pro-Tech).” 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,” it cannot be said with certainty that allowing police

officers to work as private security guards, in and of itself,

would sufficiently allege a violation of federally-protected

rights.

The Union does contend that Memphis “knew or

reasonably should have known that the actions of the on-duty

and off-duty MPD police officers were unlawful and in

violation of federal laws and the Constitution of the United

States.” J.A. at 8; Compl. ¶ 28. If this statement is designed

to allege either negligence or respondeat superior as a basis

for liability on the part of Memphis, then it is insufficient.

Neither negligence, see Daniels v. Williams, 474 U.S. 327,

330 (1986), nor the doctrine of respondeat superior, see

Monell v. New York City Department of Social Services, 436

U.S. 658, 691 (1978), can provide the basis for § 1983

municipal liability. 

If, however, this statement is designed to support an

allegation that Memphis evidences deliberate indifference to

the rights of its inhabitants, such a shortcoming can be

properly thought of as a city policy or custom that is

actionable 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 the plaintiffs,” the broader

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

indifference) is the proper interpretation. Furthermore, the

Union does not need to allege that the unlawful actions were

part of an established practice other than allowing police

officers to be employed by private firms (as opposed to being

10 Memphis, TN Area Local v.

City of Memphis, et al.

No. 02-5694

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

was knowledge on the part “of policymaking officials.” A

complaint need not anticipate every defense and accordingly

need not plead every response to a potential defense. Poe,

853 F.2d at 424.

3. Conspiracy in Violation of § 1983

The complaint alleges that Phillips and Pro-Tech

“conspired with Memphis, through its on-duty and off-duty

MPD police officers to engage in the police misconduct . . . .”

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

interpreted to state that the source for the municipal liability

was the police officers acting in their individual capacities as

decision makers. To connect the actions of the police officers

with Memphis, that interpretation would rely on the doctrine

of respondeat superior, which cannot form the basis for

municipal liability under § 1983. Monell, 436 U.S. at 691.

Alternatively, this allegation, interpreted in the light most

favorable to the Union, could state that the source for the

municipal liability was the conspiracy “with Memphis.”

Because we are constrained to accept the latter, “most

favorable,” interpretation, the motion to dismiss the

conspiracy claim against Memphis is denied.

C. Section 1983 Liability for Phillips

To sustain a § 1983 claim, plaintiff must establish that it

was deprived of a right secured by the Constitution or laws of

the United States, and that this deprivation was caused by a

person acting under the color of state law. Flagg Bros., Inc.

v. Brooks, 436 U.S. 149, 155 (1978); Ellison v. Garbarino, 48

F.3d 192, 194 (6th Cir. 1995).

When a defendant is a private entity, this circuit recognizes

three tests for determining whether its conduct is fairly

attributable to the state: the public function test, the state

compulsion test, and the nexus test. Wolotsky v. Hohn, 960
No. 02-5694 Memphis, TN Area Local v.

City of Memphis, et al.

11

F.2d 1331 (6th Cir. 1992). The public function test “requires

that the private entity exercise powers which are traditionally

exclusively reserved to the state.” Id. at 1335. The state

compulsion test requires proof that the state significantly

encouraged or somehow coerced the private party, either

overtly or covertly, to take a particular action so that the

choice is really that of the state. Id. Finally, the nexus test

requires a sufficiently close relationship between the state and

the private actor so that the action taken may be attributed to

the state. Id.

Application of these tests to the conduct of a private entity,

however, is relevant only in cases in which there are no

allegations of cooperation or concerted action between state

and private actors. Cooper v. Parrish, 203 F.3d 937, 952 n.2

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

officials to violate constitutional rights, then that party

qualifies as a state actor and may be held liable pursuant to

§ 1983 . . .”); Moore v. City of Paducah, 890 F.2d 831, 834

(6th Cir. 1989) (holding that individuals who conspire with

state actor to deprive individuals of their federally-protected

rights may be found to have acted under color of state law for

purposes of § 1983 liability). Private persons may be held

liable under § 1983 if they willfully participate in joint action

with state agents. Dennis v. Sparks, 449 U.S. 24, 27-28

(1980); United States v. Price, 383 U.S. 787 (1966) (stating

that to act under color of law does not require that the accused

be an officer of the State. It 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. 1985) (“Private

persons jointly engaged with state officials in a deprivation of

civil rights are acting under color of law for purposes 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 Memphis, et al.

No. 02-5694

A civil conspiracy is an agreement between two or

more persons to injure another by unlawful action.

Express agreement among all the conspirators is not

necessary to find the existence of a civil conspiracy.

Each conspirator need not have known all of the

details of the illegal plan or all of the participants

involved. All that must be shown is that there was

a single plan, that the alleged coconspirator shared

in the general conspiratorial objective, and that an

overt act was committed in furtherance of the

conspiracy that caused injury to the complainant. 

Id. at 943-44; Moore, 890 F.2d at 834; see also Pillette v.

Detroit Police Dept., 661 F. Supp. 1145 (E.D. Mich. 1987),

aff’d, 852 F.2d 1288 (6th Cir. 1988).

In the present complaint, all of the elements of conspiracy

are sufficiently alleged: it is alleged that a single plan existed

(“was the result of an agreement”); that the conspirators

shared in the general conspiratorial objective (“to deprive [the

Union] of its rights, privileges and immunities”), and that an

overt act was committed (that Memphis “continuously

conferred with agents of Phillips and Pro-Tech before

confronting members of the [Union]” and “that Phillips

directed and conspired with the City of Memphis to direct

police officersto harass, threaten and intimidate the plaintiff”)

in furtherance of the conspiracy that caused injury (several

violations are alleged). J.A. at 6; Compl. ¶ 23. Accordingly,

the Union has alleged facts, which if believed, state a claim

against Phillips for which relief could be granted.

 D. Section 1983 Liability for Pro-Tech

In the complaint, the Union contends that Pro-Tech

provides security services for Phillips, and that some ProTech employees are off-duty officers of the MPD. It is

further contended that “Pro-Tech and its agents, conspired
No. 02-5694 Memphis, TN Area Local v.

City of Memphis, et al.

13

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 unsupported 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

analysis 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.