## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4125

___________ Kevin Caffey, * * Appellee, * * v. * * Flippo Motors, Inc.; Gary Smith, * Individually and in his official * capacity as an Agent of the Forrest * City Police Department and the Lee * County Police Department, * * Defendants, * Appeal from the United States * District Court for the Dwight Duch, Individually and in his * Eastern District of Arkansas. official capacity as a Forrest City * Police Officer, * [UNPUBLISHED] * Appellant, * * T. C. Holmes, Individually and in his * official capacity as a Deputy of the * Lee County Sheriff’s Department; * City of Forrest City, Arkansas; Lee * County, Arkansas, * * Defendants. *

___________ Submitted: December 18, 1998 Filed: December 28, 1998-2- ___________ Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.

___________ PER CURIAM.
Dwig ht Duch, a Forrest City, Arkansas police officer, brings this interlocutory appeal from the district court & s denial of summary judgment, on the grounds o f qualified immunity, in Kevin Caffey & s lawsuit against him, brought under 42 U.S.C

. §§ 1985(3), 198 6. Caffey alleged that after he complained about racial discrimination by his former employer Flippo Motors, its manager Gary Smith conspired with Duc h and Lee Co unty Sheriff& s Deputy T.C. Holmes to intimidate him from pursuing hi s discrimination claim. Caffey c laimed that in furtherance of the conspiracy, the officers investigat edCaffey regarding thefts from Flippo Motors. The district court denie d Duch & s motion for summary judgment based on qualified immunity, but granted Duch & s motionto stay the trial as to Duch. After the close of Caffey & s case at the trial of the remaining defendants, the district court granted them judgment as a matter of law.
With respect to Caffey & s section 1983 claim, assuming Caffey identified a clearly established federal right, see, e.g. , Harrison v. Springdale W ater & Sewer Comm & n , 780 F.2 d1422, 1428 (8th Cir. 1986) (officials may not take retaliatory action agains t individua lto intimidate or chill exercise of right of access to courts), we conclud e Caffey fail ed to raise genuine issues of material fact regarding whether a reasonabl e officer would have known the investigation violated any right, cf. Harlow v. Fitzgerald , 457 U.S. 800, 818-19 (1982) (official not entitled to qualified immunity when a-3-

reasonab le official would have known that conduct violated plaintiff & s clearl y established federal right). In support of his motion, Duch provided unrebutted evidence that he co mmenced an investigation on his chief & s order following Smith & s complain t of missing property he believed may have been stolen b y employees, and that witnesses interviewed told Duch of instances when Caffey had taken proper ty from Flippo Motors and d isposed of it without authorization. In response, Caffey merely pointed t o testimony given in Caffey & s criminal trial, none of which tended to support an inference that Duch was involved in a conspiracy. See Marti v. City of M aplewood , 57 F.3d 680, 685 (8th Cir. 1995) (party failed to point to facts suggesting alleged conspirator s reached an understanding to violate party & s civil rights); Gometz v. Culwell , 850 F.2d 461, 463-64 (8th Cir. 1988) (plaintiff must produce sufficient evidence to demonstrate, with all reasonable inferences, that defendants reached agreement and conspired). With respect t o Caffey & s section 1986 claim, we conclude Caffey likewise failed to offe r evidence that Duch knew of any conspiracy. See Bra ndon v. Lotter , 157 F.3d 537, 539 (8th Cir. 1998) (stating actual knowledge one element of § 1986 claim).

The order denying Duch summary judgment is reversed, and the case i s remanded to the district court with instructi ons to grant summary judgment in his favor.-4-

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.