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

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-10359

Summary Calendar

 

GEORGE RENFRO,

Plaintiff-Appellant,

versus

CITY OF KAUFMAN ET AL.,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:97-CV-1328-G

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October 16, 1998

Before HIGGINBOTHAM, JONES and DENNIS, Circuit Judges.

PER CURIAM:*

George Renfro appeals a dismissal under Fed. R. Civ. P.

12(b)(6) in favor of the City of Kaufman and individual defendants

Jess Murrell and Terry Letz. A district court’s ruling on a Rule

12(b)(6) motion is subject to de novo review. Jackson v. City of

Beaumont Police Dep’t, 958 F.2d 616, 618 (5th Cir. 1992). This

court accepts as true all the allegations of the complaint,

considering them in the light most favorable to the plaintiff.

Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The dismissal

“may be upheld only if it appears that no relief could be granted
No. 98-10359 

-2-

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

allegations.” McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d

158, 160 (5th Cir. 1995)(internal quotation and citation omitted).

Renfro raised his claims under 42 U.S.C. § 1983. In order to

state a claim under § 1983, a plaintiff must show three things.

The improper conduct must have been committed by one acting under

color of state law or ordinance, and this conduct must deprive the

complainant of rights secured by the Constitution or of the United

States. Burgess v. City of Houston, 718 F.2d 151, 154 (5th Cir.

1983). In order to sue a municipality under § 1983, the conduct

alleged to be unconstitutional must “implement[s] or execute[s] a

policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.” Monell v.

Department of Soc. Servs., 436 U.S. 658, 690 (1978). Local

governments may also be sued for constitutional deprivations that

have been caused by governmental custom. Monell, 436 U.S. at 690-

691. A single incident without any supporting history will likely

be an inadequate basis for inferring such a custom or usage unless

the actor or actors involved had official policy-making authority.

Worsham v. City of Pasadena, 881 F.2d 1336, 1339-40 (5th Cir.

1989). Municipal liability can attach only if city policy-makers

make a deliberate choice to follow a course of action, as opposed

to various alternatives. City of Canton, Ohio v. Harris, 489 U.S.

378, 389 (1989).

Renfro made only conclusional allegations that the acts of

city officials were the result of a policy or decision or that any

wrongs occurred as a result of a custom of the city. The district
No. 98-10359 

-3-

court did not err in dismissing Renfro’s § 1983 action for failure

to state a claim.

Although Renfro attempts to argue that he has raised a claim

under § 1985, he did not raise this statute by name in his

complaint and it therefore cannot be used as a basis for recovery.

Reid v. Hughes, 578 F.2d 634, 637 (5th Cir. 1978). A conspiracy

may, however, be proved under § 1983. See Dennis v. Sparks, 449

U.S. 24 (1980). In order to prove such a conspiracy, a plaintiff

must allege facts that show: 1) an agreement between private and

public defendants to commit an illegal act and 2) an actual

deprivation of constitutional rights. Cinel v. Connick, 15 F.3d

1338, 1343 (5th Cir. 1994). In his complaint, Renfro did not plead

any facts that would tend to show that a conspiracy existed. All

that is alleged are conversations and agreements between city

officials on certain issues, which cannot rise to the level of an

illegal agreement between separate parties. Moreover, an entity

cannot conspire with itself. Hilliard v. Ferguson, 30 F.3d 649,

653 (5th Cir. 1994). There is no showing that the city conspired

through its officials with any non-city individuals.

The decision of the district court is AFFIRMED.