United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3467

___________

L.L. Nelson Enterprises, Inc.; Laura L. *

Nelson-Smith, *

*

Plaintiffs/Appellants, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri. 

County of St. Louis, Missouri, *

*

Defendant/Appellee, *

*

Curley Hines; Marcus Lipe, *

*

Defendants, *

*

Richard Robinson, *

*

Defendant/Appellee, *

*

David Rodriguez, *

*

Defendant, *

*

Gene Overall; James D. Buckles; *

Laurie Main; Independent Eviction *

Agency, LLC; James Siebels; Paul Fox, *

*

Defendants/Appellees. * 
___________

Submitted: September 22, 2011

Filed: March 9, 2012

___________

Before RILEY, Chief Judge, COLLOTON, and GRUENDER, Circuit Judges.

___________

COLLOTON, Circuit Judge.

L.L. Nelson Enterprises, Inc., doing business as Landlords Moving Service,

Inc., and its principal Laura L. Nelson-Smith (collectively, “Landlords Moving”)

brought civil rights claims under 42 U.S.C. §§ 1983 and 1985 against the County of

St. Louis, several employees of the County, and a competitor firm Independent

Eviction Agency, LLC, and its principal, James Siebels (collectively, “IEA”). The

amended complaint alleged violations of constitutional rights under the First, Fifth,

and Fourteenth Amendments and sought damages and declaratory and injunctive

relief. The district court dismissed the plaintiffs’ amended complaint for failure to

state a claim against all but three defendants, and entered a final judgment pursuant

to Federal Rule of Civil Procedure 54(b). Landlords Moving appeals. We reverse

1

the dismissal of Landlords Moving’s First Amendment retaliation claim against

defendant Laurie Main, affirm the dismissal of all other claims, and remand for

further proceedings.

The district court dismissed without prejudice the claims against defendant 1

David Rodriguez for lack of timely service. The court observed that defendant

Marcus Lipe had appeared through counsel and that defendant Curley Hines was in

default, but concluded that a motion for entry of default against both defendants may

be futile in light of the court’s order dismissing the claims against the other

defendants. On this basis, the court found no just reason to delay entry of final

judgment as to the defendants who moved successfully to dismiss the amended

complaint.

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I.

The amended complaint alleges the following facts. The St. Louis County

Sheriff’s Office has for decades permitted real estate owners to hire private moving

companieslikeLandlords Moving and IEA to remove their tenants’ personal property

during the execution of eviction orders. For a number of years, deputy sheriffs Laurie

Main, Hines, Lipe, Rodriguez, and Richard Robinson allegedly executed an illegal

kickback scheme in which they funneled eviction business to private moving

companies in exchange for cash payments. Landlords Moving initially participated

in this “illegal payments scheme,” but began to express reluctance in 2003 and then

withdrew from participation by mid-2004.

The scheme’s participants implemented a written schedule in February 2004

for the execution of eviction orders. This schedule singled out Landlords Moving and

limited the days on which it could receive eviction business. Landlords Moving

complained about the schedule to Gene Overall, who wasthen the sheriff of St. Louis

County, Paul Fox, the County’s director of judicial administration, and others at the

sheriff’s office. After Landlords Moving exchanged a number of written and oral

communications with the sheriff’s office, Main announced to most of the deputy

sheriffs named in the amended complaint that she would put Landlords Moving out

of business.

With the cooperation of both the deputies and the entire sheriff’s office, Main

allegedly implemented procedures and practices that were designed to disadvantage

Landlords Moving. These new practices, it is alleged, eventually shifted a substantial

portion of Landlords Moving’s business to IEA and other competitors. According to

the amended complaint, Fox, Overall, and later Sheriff James Buckles either

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participated in, knew of, or should have known of this conspiracy, yet took no action

to halt it.

In the second half of 2004, Landlords Moving contacted the United States

Attorney’s Office for the Eastern District of Missouri and reported the illegal

kickback scheme and alleged retaliatory practices of the sheriff’s office. Landlords

Moving cooperated with federal prosecutors in the subsequent investigation and

prosecution of various officials, including Hines, Lipe, Robinson, and Rodriguez. 

Laura Nelson-Smith also testified for the prosecution in federal court, and all of the

defendants have known for some time of Landlord Moving’s role in the investigation

and prosecutions. The amended complaint alleged that in retaliation, Main and others

in the sheriff’s office “have continued and even increased the extent of their

conspiracy,” taking such measures as forcing Landlords Moving’s clients to “wait

inordinately” for enforcement of their eviction orders.

Landlords Moving filed a four-count amended complaint against each of the

eleven defendants. The first two counts arise under 42 U.S.C. § 1983 and allege the

deprivation of constitutional rights. As relevant here, Count I alleges that the illegal

kickback scheme violated Landlord Moving’s rights under the Due Process Clause,

Equal Protection Clause, and the Takings Clause of the Constitution, while Count II

avers that retaliation against Landlords Moving for protesting the kickback scheme

infringed its rights to freedom of speech and to petition for the redress of grievances

under the First and Fourteenth Amendments. Count III is a claim for damages under

42 U.S.C. § 1985, alleging that the defendants conspired to retaliate against

Landlords Moving because of Laura Nelson-Smith’s testimony in federal court. In

the fourth count, Landlords Moving seeks declaratory and injunctive relief “to define

reasonable commercial and noncommercial public expectations with respect to tasks

to be performed by the Sheriff’s offices in connection with eviction executions,” in

order to “effect a reasonably complete redress of plaintiffs’ injuries.”

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The County, Overall, Buckles, Fox, Main, Robinson, and IEA moved to

dismiss Landlords Moving’s amended complaint. The district court granted the

motions, concluding that the amended complaint did not plausibly allege either the

deprivation of a constitutional right or that the defendants deterred Nelson-Smith

from testifying. The district court entered final judgment as to these defendants

pursuant to Rule 54(b), and Landlords Moving appeals. 

II.

We review de novo a district court’s decision to grant a motion to dismiss,

accepting the allegations of the amended complaint as true. See Schmidt v. Des

Moines Pub. Schs., 655 F.3d 811, 816 (8th Cir. 2011). To survive a motion to

dismiss, a complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial

plausibility, in turn, requires that the claim plead facts from which a court may “draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). At the same time, “[s]pecific facts

are not necessary; the statement need only give the defendant fair notice of what the

. . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89,

93 (2007) (internal quotation omitted); see Swierkiewicz v. Sorema N.A., 534 U.S.

506, 512 (2002).

The essential elements of a constitutional claim under § 1983 are (1) that the

defendant acted under color of state law, and (2) that the alleged wrongful conduct

deprived the plaintiff of a constitutionally protected federal right. Schmidt v. City of

Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). The district court assumed the first

element was satisfied, see Monroe v. Pape, 365 U.S. 167 (1961), but determined that

the amended complaint alleged no constitutional violation. Whether Landlords

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Moving adequately alleged the deprivation of a constitutional right is the principal

disputed question on appeal. 

A.

We first consider the several allegations made under Count I of the amended

complaint. Landlords Moving relies in part on the “doctrine of unconstitutional

conditions” to describe its claim under Count I. This doctrine, as a general rule,

provides that although a State may have the power to deny a privilege altogether, it

may not condition the grant of such a privilege on a private party’s surrender of a

constitutional right. Decisions along this line date to Frost & Frost Trucking Co. v.

Railroad Commission, 271 U.S. 583 (1926), where the Supreme Court held that a

State could not condition a private carrier’s use of highways on issuance of a

certificate and submission to regulatory control of the State, because such regulation

violated the due process rights of the private carrier under the Lochner-era

jurisprudence then prevailing. Id. at 593-94. More recently, the Supreme Court

applied the doctrine in the context of the Takings Clause, explaining that “the

government may not require a person to give up a constitutional right—here the right

to receive just compensation when property is taken for public use—in exchange for

a discretionary benefit conferred by the government where the benefit has little or no

relationship to the property.” Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).

Landlords Moving’s favored example is Blackburn v. Snow, 771 F.2d 556 (1st Cir.

1985), where the court held that a State could not condition a citizen’s privilege to

visit her brother at a county jail on submission to an unreasonable strip search that

infringed upon the visitor’s rights under the Fourth Amendment. Id. at 568.

Courts and commentators have wrestled with the parameters of the

unconstitutional conditions doctrine, see generally Kathleen M. Sullivan,

Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989), and there is no

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precedent that directly addresses a scenario like this one. Landlords Moving suggests

that the closest analogue is Roma Construction Co. v. aRusso, 96 F.3d 566 (1st Cir.

1996). The district court in that case allowed that “[p]erhaps a bribery demand by

municipal officials in order to facilitate zoning, permits, and the like, deprives a

citizen of constitutional due process rights,” but ruled that once the citizen voluntarily

paid the bribe, he waived any future right to sue under § 1983. 906 F. Supp. 78, 84

(D.R.I. 1995). The court of appeals reversed, concluding that a reasonable jury could

infer that the plaintiffs were “innocent victims of a criminal enterprise,” because their

payments were made pursuant to “coercive extortion” and did not constitute

“voluntary payment of bribes.” 96 F.3d at 574, 576. The court remanded for further

proceedings without discussing what specific constitutional right the municipal

officials might have violated.

Landlords Moving assertssummarily that a bribery demand by public officials

results in a constitutional due process violation when the bribe is paid, because the

payment is “contrary to law.” It also claims that the demand for bribery payments

amounted to a taking of its property in violation of the Takings Clause of the Fifth

Amendment, as incorporated through the Fourteenth. Whatever the merits of a

possible due process claim by an innocent victim of extortion, cf. Hudson v. Palmer,

468 U.S. 517, 533 (1984), or a Takings Clause claim based on an obligation imposed

by the State to pay money, cf. W. Va. CWP Fund v. Stacy, No. 11-1020, 2011 WL

6062116, at *6 (4th Cir. Dec. 21, 2011), we do not think Landlords Moving can

assume the mantra of the “innocent victim” described in Roma Construction for the

period during which Landlords Moving was paying bribes. The amended complaint

alleges that county officials referred business only to those moving companies that

made “illegal cash payments” and were “willing and able” to satisfy the demands for

“unlawful payments.” Am. Compl. ¶¶ 20, 24 (emphases added). 

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Allegations in a complaint are binding admissions, Jackson v. Marion Cnty.,

66 F.3d 151, 153 (7th Cir. 1995), and a party who “willing[ly]” makes payments to

the State cannot mount a successful claim based on the Due Process Clause or the

Takings Clause. When a person voluntarily surrenders liberty or property, the State

has not deprived the person of a constitutionally-protected interest. Zinermon v.

Burch, 494 U.S. 113, 117 n.3 (1990) (“If only those patients who are competent to

consent to admission are allowed to sign themselves in as ‘voluntary’ patients, then

they would not be deprived of any liberty interest at all.”); Lee v. Pine Bluff Sch.

Dist., 472 F.3d 1026, 1030 (8th Cir. 2007). Similarly, a voluntary transfer of money

to the State in exchange for referrals of business does not amount to a taking by the

State. See Yee v. City of Escondido, 503 U.S. 519, 527 (1992) (stating that “the

Takings Clause requires compensation if the government authorizes a compelled

physical invasion of property”) (emphasis added); Meriden Trust &Safe Deposit Co.

v. FDIC, 62 F.3d 449, 455 (2d Cir. 1995); McCarthy v. City of Cleveland, 626 F.3d

280, 287 (6th Cir. 2010) (McKeague, J., concurring). There is also authority holding

that a party cannot obtain redress under § 1983 for damages caused by its own illegal

acts in pari delicto with another, see Dudley v. Stoneman, 653 F.2d 125, 126 (4th Cir.

1981) (per curiam), but we need not address how that defense applies in a § 1983

action, because the claims as pleaded in Count I simply fail on the merits. Cf. Pinter

v. Dahl, 486 U.S. 622, 633-35 (1988) (describing the standard for determining when

the in pari delicto defense applies to a private action under any of the federal

securities laws).

We further conclude that Landlords Moving’s amended complaint does not

state a claim that the making of illegal cash payments in response to demands of

county officials constituted a violation of the Equal Protection Clause. According to

the amended complaint, when Landlords Moving made illegal cash payments in

exchange for the referral of business, it was treated the same as all other private

moving companies. As the amended complaint alleges no differential treatment of

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similarly situated persons during the period when Landlords Moving made unlawful

payments, it fails to state an equal protection claim. See Koscielski v. City of

Minneapolis, 435 F.3d 898, 901 (8th Cir. 2006).

B.

Landlords Moving next appeals the dismissal of its First Amendment claim

under Count II of the amended complaint. Landlords Moving contends that the

defendants violated the company’s rights under the First Amendment to petition for

redress of grievances and to freedom of speech by retaliating against Landlords

Moving for complaints that it made to the sheriff and the director of judicial

administration. We conclude that Landlords Moving adequately pleaded a First

Amendment claim against defendant Main, and that the district court’s order of

dismissal should be reversed in part.

The amended complaint alleged that in 2003 and the first half of 2004,

Landlords Moving “demonstrated reluctance” to continue its participation in the

illegal payments scheme. In February and March 2004, it is alleged, the sheriff’s

office implemented a schedule for the execution of eviction orders that limited the

days on which eviction orders for clients of Landlords Moving could be executed. 

Landlords Moving complained to Sheriff Overall and Director of Judicial

Administration Fox, questioned the motivation for the schedule, and asserted that the

schedule discriminated against Landlords Moving without justification.

Landlords Moving asserts that after a number of communications to the

sheriff’s office, Main announced to most of the other deputy sheriffs named in the

amended complaint that “she was going to put Landlords Moving out of business,”

and that she implemented two particular procedures that were designed to

disadvantage Landlords Moving. The first was “the maintenance of a deliberately

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and invidiously discriminatory list of available private moving companies” that

placed Landlords Moving at the bottom and IEA at the top. The amended complaint

alleges that when real property owners with eviction orders asked Main to refer them

to a private moving company that could assist with the eviction, she read the names

on her referral list from top to bottom, “intending to enable and to encourage” the

property owner to choose IEA or any private mover other than Landlords Moving. 

The second practice was to forewarn those tenants who resided in property owned by

clients of Landlords Moving that the tenants were subject to eviction, and to

encourage them to vacate the premises immediately before the date of eviction. The

alleged purpose of this practice was to disadvantage Landlords Moving’s business. 

The amended complaint asserts that these procedures, “in combination with all other

discriminatory and retaliatory practices and procedures,” shifted a substantial portion

of Landlords Moving’s longtime clientele to IEA or other movers, and inhibited

substantially the growth of Landlords Moving’s business.

To establish a § 1983 claim for retaliation in violation of the First Amendment,

a plaintiff must allege (1) that it engaged in a protected activity, (2) that the

defendants responded with adverse action that would “chill a person of ordinary

firmness” from continuing in the activity, and (3) that “the adverse action was

motivated at least in part by the exercise of the protected activity.” Revels v. Vincenz,

382 F.3d 870, 876 (8th Cir. 2004). We think that Landlords Moving pleaded these

elements adequately to survive a motion to dismiss on its claim against Main.

Landlords Moving alleged that it engaged in protected activity by petitioning

the sheriff and director ofjudicial administration, and by expressing its dissatisfaction

with the schedule imposed by the sheriff’s office. The defendants counter that

Landlords Moving’s complaints concerned only its private interests and did not

involve a matter of “public concern,” such that the complaints were not protected

activity. When the government takes adverse action against a public employee, an

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independent contractor, or another actor with whomthe government has a comparable

pre-existing commercial relationship, the First Amendment is implicated only when

the speech or petition that motivated the retaliation involves matters of public

concern. See Connick v. Myers, 461 U.S. 138, 142 (1983); Bd. of Cnty. Comm’rs v.

Umbehr, 518 U.S. 668, 678 (1996); O’Hare Truck Serv., Inc. v. City of Northlake,

518 U.S. 712, 721-22 (1996). Otherwise, “a federal court is not the appropriate forum

in which to review the wisdom of a personnel decision taken by a public agency

allegedly in reaction to the employee’s behavior,” Connick, 461 U.S. at 147, or a

comparable decision made with respect to a contractor. Umbehr, 518 U.S. at 677-78. 

The defendants argue that the same standard should apply to Landlords Moving. 

In considering whether the “public concern test” applies to a retaliation claim,

this court has distinguished between the government’s role as employer or contractor

and the government’s role as sovereign. See Heritage Constructors, Inc. v. City of

Greenwood, 545 F.3d 599, 602-03 (8th Cir. 2008). Where the government has an

employment relationship or a similar contractual relationship with a complainant,

then the complainant’s speech is protected only when it addresses a matter of public

concern. See Smith v. Cleburne Cnty. Hosp., 870 F.2d 1375, 1381 (8th Cir. 1989). 

But where the complainant’s relationship with the government is not analogous to

that of employee-employer, and the government acts as sovereign rather than as an

employer or contractorin taking the alleged retaliatory action, then the complainant’s

First Amendment claim is not limited by the public concern test. See Heritage, 545

F.3d at 602; see also Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 586-88 (6th

Cir. 2008).

The amended complaintsupports a plausible inference that Landlords Moving

was not a public employee or contractor and did not have an analogous relationship

that would call for limiting protection under the First Amendment to speech on

matters of public concern. The amended complaint alleges that the County did not

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employ personnel to remove property from buildings subject to eviction orders, but

rather permitted property owners “to hire their own private moving contractors” to

assist in executing eviction orders. Count II alleges, in part, that the County

deliberately generated “scheduling conflicts” to interfere with Landlords Moving’s

ability to serve its private clients. At the pleadings stage, therefore, we conclude that

Landlords Moving’s complaints to the sheriff and director of judicial administration

were protected activity. See Blackburn v. City of Marshall, 42 F.3d 925, 932-35 (5th

Cir. 1995) (refusing to apply the “public concern” requirement to a towing operator

who alleged that the city retaliated against his complaints about city bidding

procedures by revoking his police radio frequency privileges, thereby thwarting his

participation in a towing rotation system). We need not address at this juncture

whether Landlords Moving’s complaints may have involved both its private interests

and a matter of public concern, assuming the latter were required. See Belk v. City

of Eldon, 228 F.3d 872, 879-80 (8th Cir. 2000).

The district court thought Landlords Moving did not plead adverse action

sufficient to chill a person of ordinary firmness, but we respectfully disagree. The

amended complaint alleges that Main’s actions, in retaliation for Landlords Moving’s

complaints to Overall and Fox, helped to shift a “substantial portion” of Landlords

Moving’s business to other movers, and to “inhibit substantially” the growth of

Landlords Moving’s business, and caused “substantial” economic injury. This court

has said that while a certain level of “embarrassment, humiliation and emotional

distress” would not chill a person of ordinary firmness, Naucke v. City of Park Hills,

284 F.3d 923, 928 (8th Cir. 2002), even the selective issuance of parking tickets to

a complaining citizen could support a finding of unlawful retaliation, due to the

“concrete consequences” of such misdemeanor charges. Garcia v. City of Trenton,

348 F.3d 726, 729 (8th Cir. 2003). We do not think it would “trivialize the First

Amendment,” Naucke, 284 F.3d at 928, to hold that a substantial threat to one’s

businessis enough to deter a person of ordinary firmnessfromspeaking or petitioning

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the government. Landlords Moving’s allegations are thus sufficient to survive the

pleadings stage on this element.2

As for the final element of a First Amendment retaliation claim, Landlords

Moving adequately alleges that Main’s adverse actions against the company were

motivated by Landlords Moving’s complaints to Overall and Fox about the new

schedule. The amended complaint alleges that “after a number of written and oral

communicationsregarding [the new eviction schedule] from plaintiffs and their legal

counsel to the Sheriff’s office, Laurie Main announced to most of the [deputy sheriffs

named as defendants] that she was going to put Landlords Moving out of business.” 

The amended complaint further asserts that “[w]ith the cooperation thereafter of the

deputies and the entire Sheriff’s office, Main went on openly to implement particular

procedures or practices deliberately and, from an objective point of view within the

office, obviously designed to disadvantage Landlords Moving severely.” Having

alleged a chronology to support its circumstantial claim of retaliatory action,

Landlords Moving concludes that Main adopted the discriminatory measures “in

retaliation specifically against the Landlords Moving complaints about and criticism

of the Imposed Schedule.” At the pleadings stage, these allegations support a

plausible inference that Main knew of Landlords Moving’s complaints and acted with

retaliatory motive. We therefore conclude that Landlords Moving has stated a claim

against Main for violation of its First Amendment rights. Whether the allegations can

be proved, of course, is a matter for further proceedings.

The district court also thought the retaliation claim failed because the alleged

2

retaliation took place before Landlords Moving’s cooperation with authorities. This

may or may not be true with respect to Landlords Moving’s cooperation with the

United States Attorney’s Office, but the amended complaint alleges retaliation for

Landlords Moving’s complaints to the sheriff and director of judicial administration,

which preceded the alleged retaliatory acts.

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We do not believe, however, that the amended complaint adequately alleges a

First Amendment claim against the other defendants. Deputy Sheriff Robinson is not

mentioned by name in Count II, and the general references to other deputies are

insufficient to charge him with the alleged constitutional violations. The amended

complaint alleges only that Main announced to other deputies that she was going to

put Landlords Moving out of business, that she “directed” other staff members to

follow one disputed procedure, that she “took steps to confirm” that other deputies

followed the second procedure, and that she acted with “the cooperation” of “the

deputies.” The amended complaint does not allege that Robinson was one of the

deputies to whom Main made her announcement, alleging only that “most” deputies

named in the amended complaint heard the statement. There is no allegation that

Robinson ever read a list of private moving companies to a property owner, or that

he selectively encouraged occupants to vacate premises when Landlords Moving was

hired to remove remaining property. Nor is there an allegation that Robinson acted

with retaliatory motive in conducting any such activity. The district court properly

dismissed the claims against Robinson.

Supervisors like Overall, Buckles, and Fox cannot be held vicariously liable

under § 1983 for the actions of a subordinate. See Iqbal, 129 S. Ct. at 1948. To state

a claim, the plaintiff must plead that the supervising official, through his own

individual actions, has violated the Constitution. Id. Where, as here, the alleged

constitutional violation requires proof of an impermissible motive, the amended

complaint must allege adequately that the defendant acted with such impermissible

purpose, not merely that he knew of a subordinate’s motive. Id.

The amended complaint in this case does not adequately allege that Overall,

Buckles, or Fox took adverse action against Landlords Moving with retaliatory

motive. Landlords Moving alleges that each of the three supervisors “either

participated himself in the conspiracy and retaliation against [Landlords Moving],

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knew of the conspiracy and retaliation but failed to take action to halt it, or should

have known of the conspiracy and retaliation but deliberately or willfully failed to

discover it and halt it.” Am. Compl. ¶ 49. Like the complaint in Iqbal, which alleged

that supervisory officials “knew of, condoned, and willfully and maliciously agreed

to” subject the plaintiff to harsh conditions for an illegitimate reason, these

asseverations against Overall, Buckles, and Fox are conclusory, and they are not

entitled to a presumption of truth. 129 S. Ct. at 1951. The amended complaint asserts

that Main took her actions “openly,” and that they were “obviously designed to

disadvantage Landlords Moving,” but this probably does not suffice to allege even

that the actions were known to the particular supervisory officials named as

defendants, see Wilson v. City of N. Little Rock, 801 F.2d 316, 323 (8th Cir. 1986),

and it assuredly does not plead adequately that the supervisors acted with

impermissible purpose asrequired by Iqbal. The amended complaint does allege that

Fox “was informed on many occasions throughout 2004” about “the irregularities

within the Sheriff’s office,” and then deliberately failed to take corrective action. 

Am. Compl. ¶ 53. But even assuming the alleged retaliation is among the

“irregularities,” this assertion isinsufficient to allege that Fox acted with a retaliatory

motive. We therefore conclude that the district court properly dismissed the claims

against Overall, Buckles, and Fox. 

The amended complaint also fails to state a claim against the County. A

municipality cannot be held liable under § 1983 solely because it employs a

tortfeasor. A municipality can be liable only if a municipal “policy or custom” caused

a plaintiff to be deprived of a federal right. L.A. Cnty. v. Humphries, 131 S. Ct. 447,

450 (2010); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Landlords

Moving contends that the “entrenched bribery scheme” run from the sheriff’s office

constituted a “custom or usage” sufficient to establish municipal liability.

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As we have concluded that the district court properly dismissed Count I of the

amended complaint, we deal here only with the question whether the County can be

held liable for the alleged retaliatory actions taken by Deputy Main after Landlords

Moving complained to the sheriff and director of judicial administration about the

schedule implemented in February and March 2004. The amended complaint does

not allege that Main acted pursuant to municipal policy or custom in retaliating

against Landlords Moving. It asserts that after Landlords Moving complained to

Overall and Fox, Main announced that she was going to put Landlords Moving out

of business, that she “devised and implemented” new procedures and practices, that

she directed other staff membersto follow proceduresshe instituted, and thatshe took

steps to ensure that other deputies carried out the new procedures. Count II of the

amended complaint does not allege that the County had a widespread custom of

retaliating against those who complained to the sheriff or director of judicial

administration. The district court thus properly dismissed the claims against the

County. 

Finally, the amended complaint failsto allege adequately that IEA participated

in the retaliation. Because IEA is a private actor, to prove a § 1983 claim against it,

Landlords Moving must establish that IEA reached a mutual understanding with

public officialsthat it would participate in retaliating against Landlords Moving. See

Dossett v. First State Bank, 399 F.3d 940, 951 (8th Cir. 2005). With respect to the

First Amendment retaliation claim, the pleadings allege only that IEA was placed “on

the top” of the discriminatory mover referral list, that Main encouraged property

owners to select IEA for executing evictions, and that IEA benefitted from these

practices. It is true that Count II of the amended complaint incorporates allegations

made in Count I, but the conspiracy alleged in Count I differs materially from the

conspiracy outlined in Count II. The amended complaint asserts in Count I that IEA

conspired with the other defendants to employ “various manipulatory devices within

the Sheriff’s office, including but not limited to manipulation of a deputies work

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schedule that deliberately disadvantaged Landlords Moving.” Am. Compl. ¶ 26. 

This alleged conspiracy began in 2003 and was motivated by Landlords Moving’s

“demonstrated reluctance” to continue paying bribes and “eventual withdrawal” from

participation in the scheme. Id. ¶ 25. Count II, by contrast, alleges that the

defendants retaliated against Landlords Moving at a later date, in 2004, because of

complaints that Landlords Moving made to Overall and Fox in 2004 about the work

schedule described in Count I. Count II contains no allegation that IEA engaged in

retaliatory conduct based on the complaints to Overall and Fox, let alone that IEA

reached a meeting of the minds with Main to conspire against Landlords Moving by

retaliating for these complaints. The incorporation by reference of allegations in

Count I that IEA conspired with othersin 2003 to manipulate the work schedule does

not suffice to plead that IEA participated in the alleged retaliation in 2004. We

therefore conclude that the claim against IEA was properly dismissed. 

C.

Count III of Landlords Moving’s amended complaint asserts a claim under 42

U.S.C. § 1985 based on alleged intimidation of witnesses. The claim arises from

Laura Nelson-Smith’s role in aiding the federal investigation and prosecution of

deputy sheriffs who participated in the kickback scheme. Landlords Moving alleges

that “in retaliation against the plaintiffs for having aided the discovery and

prosecution of the illegal scheme and the scheme’s principals and for having testified

in federal court against them,” those principals “have continued and even increased

the extent of their conspiracy and campaign with all the defendants to injure

Landlords Moving.” Am. Compl. ¶ 60. On appeal, Landlords Moving clarifies that

its claim is grounded in § 1985(2). 

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Section 1985(2) provides, in relevant part,

If two or more persons in any State or Territory conspire to deter, by

force, intimidation, or threat, any party or witness in any court of the

United Statesfrom attending such court, or fromtestifying to any matter

pending therein, freely, fully, and truthfully, or to injure such party or

witness in his person or property on account of his having so attended

or testified . . . the party so injured or deprived may have an action for

the recovery of damages occasioned by such injury or deprivation,

against any one or more of the conspirators.

42 U.S.C. § 1985(2). 

3

By its terms, the statute requires a conspiracy, but “[t]his court has held that a

corporation and its agents are a single person in the eyes of the law, and a corporation

cannot conspire with itself” to violate 42 U.S.C. § 1985. Cross v. Gen. Motors Corp.,

721 F.2d 1152, 1156 (8th Cir. 1983). Under this intracorporate conspiracy doctrine,

a local government entity cannot conspire with itself through its agents acting within

the scope of their employment. Id.; Richmond v. Bd. of Regents of Univ. of Minn.,

957 F.2d 595, 598 (8th Cir. 1992); cf. McAndrew v. Lockheed Martin Corp., 206 F.3d

1031, 1038 (11th Cir. 2000) (en banc) (“We have long recognized an exception to the

applicability of the intracorporate conspiracy doctrine for intracorporate criminal

conspiracies arising under 18 U.S.C. § 371 of the federal criminal code.”). The

referral of moving companies to property owners seeking the execution of evictions

was within the scope of employment for deputies and staff members in the sheriff’s

The district court dismissed this claim on the ground that “Plaintiffs do not

3

contend they were deterred fromtestifying,” but “rather, they contend that they [were]

retaliated against for having cooperated with the authorities.” The statute, however,

does forbid conspiracies to injure a witness “in his person or property on account of

his having so attended or testified.” 42 U.S.C. § 1985(2); see Haddle v. Garrison,

525 U.S. 121, 125 (1998). 

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office, even though the amended complaint alleges improprieties in the execution of

these duties. See Cross, 721 F.2d at 1157 n.7. Therefore, to plead a plausible claim

under § 1985, Landlords Moving must allege that the private-party defendants, IEA,

participated in the alleged conspiracy.

The only possible directreference to IEA in Count III is an allegation that Main

and other employees of the sheriff’s office “increased the extent of their conspiracy

and campaign with all the defendantsto injure Landlords Moving by acting in concert

to shift clientele fromLandlords Moving to Independent Eviction and other movers.” 

Am. Compl. ¶ 60 (emphasis added). The amended complaint, however, alleges no

action by IEA to join or to further an alleged conspiracy. The pleading states merely

that IEA and other movers gained additional business as clients or potential clients

of Landlords Moving shifted their business. These statements are insufficient to

plead IEA’s involvement in a conspiracy. Count III does incorporate Count I,

including the allegation that IEA participated in a conspiracy to use “manipulatory

devices” that disadvantaged Landlords Moving in 2003, but these allegations do not

support a plausible inference that IEA participated in a different conspiracy to

retaliate for Nelson’s later participation in the federal investigation and prosecution. 

Because the remaining alleged co-conspirators were all employees of the County

acting within the scope of their employment, Landlords Moving’s § 1985 claim was

properly dismissed.

D.

Count IV of the amended complaint seeks declaratory and injunctive relief. 

The district court, having resolved all remaining claims against Landlords Moving,

dismissed this claim on the ground that the Declaratory Judgment Act does not

provide an independent basis for jurisdiction. Because we reverse the dismissal of

Landlords Moving’s First Amendment retaliation claimagainst Main, we also reverse

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dismissal of the claim for declaratory and injunctive relief against Main, and remand

that claim for further consideration. 

* * *

For the foregoing reasons, we reverse the dismissal of Landlords Moving’s

claim against defendant Main for alleged violations of Landlords Moving’s rights

under the First Amendment, and we reverse the dismissal of Landlords Moving’s

claims for declaratory and injunctive relief with respect to that claim. We affirm the

dismissal of all other claims and remand for further proceedings.

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