United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2284

___________ Springdale Education Association, * Wendell Ridenour, President; * Wendell Ridenour; Susan Rowe, * * Appellants, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas. Springdale School District; Jim D. * Rollins, Individually and as * Superintendent of the Springdale * School District, * * Appellees. *

___________ Submitted: December 11, 1997 Filed: January 9, 1998

___________ Before WOLLMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge. The Springdale Education As sociation and its president, Wendell Ridenour, and Ridenour and Susan Rowe, individually (hereinaft er, collectively, “the union”), brought this action pursu ant to 42 U.S.C. § 1983 against the Springdale School District and its superintendent, Jim Rollins, in both his individual and official capacities. The union-2-

ap peals from the district court’s dismissal of each claim with prejudice, and from th e denial of its motion to reconsider the dismiss als. We affirm in part, reverse in part, and remand.

I.

This appeal arises from an apparent conflict between Rollins and thos e individuals in the district’s employ who have associated themselves with the Springdale Educati on Association, a local union. In its initial complaint, the union charged tha t certain actions and statements by Rollins (and other unnamed district employees ) evin cing an anti-union sentiment were violative of the First Amendment. The unio n sought to assign liability for its alleged constitutional injuries both to the district an d Rollins under section 1983. After the defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the district court granted the union leave to amend its complaint.

The union’s amended complaint alleged that on May 29, 1996, Rollins directed the Springdale school board attorney to research the legal question whether the district could legally terminate t

he employment of teachers for involvement in union activities. In addition, Rollins stated at a public meeting that as long as he was superintenden t “class ified

or non-certified district personnel were not going to be members of th e Springdale Education Association” and that “he would ‘not stand for it.’” Moreover, “Rollins or those under his direction or control” encouraged or coerced employees of the district not to join the union, subjec ted district employees to “ridicule and contempt in public and private meetings,” and placed Ro we, a non-certified district employee, on probation “in direct retaliation for her lawful activ ities” on behalf of the union. Further, “[s]upervisors under the direction of and with the knowledge of Rollins” had expressed to members of the union the hope that they could “be saved from this ‘satani c organi zation,’ referring to the Springdale Education Association, AEA, and/or NEA.” See Plaintiffs’ Amended Complaint at 2-3.-3-

The defendants filed a motion to dismiss the amended complaint for failure to state
a claim. The district court granted this motion with respect to both the district an d Roll ins, dismissing each action with prejudice, and denied the union’s motion t o reconsider.

II.

We conduct a de novo review of a district court’s grant of a motion to dismiss for failure to state a claim. See Kohl v. Casson , 5 F.3d 1141, 1148 (8th Cir. 1993). A complaint should not be so dismissed unless it appears beyond doubt that the plaintiff can pro ve no set of facts in support of his claim that would demonstrate an entitlement to relief. See id. When analyzing a dismissal under Rule 12(b) (6), we accept the factual all egations contained in the complaint as true and construe them in the light mos t favorable to the plaintiff. See id. W e do not apply a standard of heightened specificity,
mor e stringent than the usual pleading requirements of the civil rules, in cases alleging municipal liab ility under section 1983. See Frey v. City of Herculaneum , 44 F.3d 667, 671 (8th Cir. 1995) (citing Leatherman v. Tarrant County Narcotics Intelligence an d Coordin ation Unit , 507 U.S. 163, 168 (1993)). At a minimum, however, a complain t must co ntain facts sufficient to state a claim as a matter of law and must not be merely conclusory in its allegations. See Frey , 44 F.3d at 671.

To state a claim under section 1983, a plaintiff must set forth facts that allege an action perfor med under color of state law that resulted in a constitutional injury. Se e Ha berthur

v. City of Raymore, Mo. , 119 F.3d 720, 723 (8th Cir. 1997). A loca l govern ment, however, cannot be held liable under section 1983 for an injury inflicte d solely by its employees or agents on a theory of respondeat superior. See Andrews v. Fow ler , 98 F.3d 1069, 1074 (8th Cir. 1996) (citing Monell v. Department of Socia l Se rvs. of City of New York , 436 U.S. 658, 694 (1978)). Rather, a plaintiff seeking to impose such liability is required to identify either an official municipal policy or a w i despread custom or practice that caused the plaintiff’s injury. See Board of County-4-

Comm’rs of Bryan County, Okl. v. Brown , 117 S. Ct. 1382, 1388 (1997); Kinman v

. Omaha Pub. Sch. Dist. , 94 F.3d 463, 467 (8th Cir. 1996); McGau tha v. Jackson County, Mo., Collections Dep’t , 36 F.3d 53, 55-56 (8th Cir. 1994).

The identification of an official policy as a basis upon which to impose liability ensures that a municipality is held liable only for constitutional deprivations “resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Brown , 117 S. Ct. at 1388; see also McGautha , 36 F.3d at 55-56. Similarly, actions performed pursuant to a municipa l “custo m” not formally approved by an authorized decisionmaker “may fairly subject a municipal ity to liability on the theory that the relevant practice is so widespread as t o have the force of law.” Brown , 117 S. Ct at 1388; see also McGautha , 36 F.3d at 56-57.
As the district court noted, neither the union’s complaint nor amended complaint, read liberally, alleges that any constitution al injury was the result of an official policy or widespread custom of the school district. Instead, every alleged action is attribute d spe cifically to Rollins, or to unnamed persons “under his direction or control.” Th e district itself is mentioned but once within the alleged facts, by way of a summary accusation that it violated the plaintiffs’ rights. See Plaintiffs’ Amended Complaint at 4. The amended complaint is thus insufficient, on its face, to state a claim against the distr ict. See, e.g. , Baxter by Baxter v. Vigo County Sch. Corp. , 26 F.3d 728, 735-3 6 (7th Cir. 1994) (dismissal of county sc hool corporation proper when complaint failed to adequately allege policies or customs on part of corporation).
Nevertheless, the union attempts in its brief to attribute the actions of Rollins to th e district by asserting that Rollins is an authorized district policymaker. Any actio n taken by Rollins, it contends, must therefore have constituted official district policy. We have summarized the applicable law regarding this theory as follows:Ark. C ode Ann. § 6-17-1504, does provide that whenever a superintendent or 1 administrator

has reason to believe that a teacher is having difficulties in meeting the district’s e xpectations that might lead to termination or nonrenewal, the administrator “shall bring the problems and difficulties to the attention of the teacher involved i n writing and shall document the efforts which have been undert aken to assist the teacher to correct whatever appears to be the cause for potential termination or nonrenewal.” Id. at subsection (c). -5- Altho ugh municipal liability for violating constitutional rights may aris e froma single act of a policy maker, that act must come from one in a n authoritative policy making position an d represent the official policy of the municipality. [internal citations om itted]. Therefore, “[w]hen an official’s discr etionary decisions are constrained by policies not of that official’ s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality.”

McGautha , 36 F.3d at 56 (quoting City of St. Louis v. Praprotnik , 485 U.S. 112, 12 7 (1988) (plurality opinion)). Whether a person is an author ized policymaker for purposes of assigning municipal liability is a question of state law. See Jett v. Dallas Indep. Sch. Dist. , 491 U.S. 701, 737 (1989); Jane Doe “A” v. Special Sch. Dist. of St. L ouis County , 901 F.2d 642, 645 (8th Cir. 1990).

The district court determined that Rollins was not an authorized policymaker for the school district under Arkansas law, precluding any claim against the district for his acti ons under the “official policy” theory of municipal liability. We agree with thi s con clusion. With regard to all school district policies, a school superintendent i s empowered only to “recommend” changes, which may or may not become “proposals.” SeeArk. Code Ann. § 6 -17-205(c)(2) (Michie 1993). The union argues, however, that Rollins was, in fact, the district’s final policymaker with respect to Rowe’s being placed
on probatio n in retaliation for union activities. Arkansas law does not establis h procedures for p lacing school district employees on some sort of explicit probation. A 1 superintendent does have authority to place a teacher or a non-certified district-6-

employee on suspension. SeeArk. Code Ann. §§ 6-17-1508(a), -1704. However, those suspended are entitled to a hearing within ten days, and only the school board ma y terminate employment or continue a suspension for any definite perio d of time. See Ark. Cod e Ann. §§ 6-17-1508(e), -1509, -1705. An employee cannot lose compensatio n without action by the board. See Ark. Code Ann. §§ 6-17-1508(f) & (g), -1705(e).

Arkansas law is clear, then, that a school board, and not a superintendent, ha s ultimate responsibility for all district policies, including policies involving unfavorable employment action. SeeArk. Code Ann. § 6-17-205 ; § 6-17-1501 et seq. (Teacher Fair Dismissal Act); Western Grove Sch. Dist. v. Terry , 885 S.W.2d 300, 301-03 (Ark

. 1994 ). Nowhere in the union’s amended complaint is it alleged that any “probation ” suffere d by Rowe was ever ratified or approved by the board, tacitly or otherwise

. Accor dingly, we agree with the district court that municipal liability for such an action cannot be premised upon a vague allegatio n directed solely at Rollins or the anonymous subordinates to which the union has repeatedly referred.

The union also briefly argues that the amended complaint is sufficient to state a section 1983 claim against the district under the theory that actions and statements by Rollins and others indicate t hat the district has a widespread custom of unconstitutional anti-union practices. Under such a theory, liability may be established through proof that the alle ged conduct was so pervasive among nonpolicymaking employees of th e municipality as to constitute a custom or usage with the force of law. See McGautha , 36 F.3d at 56. We have held that in order to state such a claim, a plaintiff must allege facts which, if true, would tend to prove: (1) The existence of a continuing, widespread, persistent pattern o f unconstitutional misconduct by the governmental entity’s employees;-7-

(2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) That plaintif

f was injured by acts pursuant to the governmental entity’s custom, i.e., that the cust om was the moving force behind the constitutional violation.

Jane Doe “A” , 901 F.2d at 646 (citing Harris v. City of Pagedale , 821 F.2d 499, 504-07 (8th Cir. 1987)). We agree with the district court that the amended complaint does not allege fac ts which, if true, would be sufficient to demonstrate the district’s deliberat e indifference to or tacit authorization of any sort of pervasive custom of unconstitutional conduct by distr

ict employees as measured by such a standard. See McGautha , 36 F.3d at 57; Thelma D. by Delores A. v. Board of Educ. of City of St. Louis , 934 F .2d 929, 933- 34 (8th Cir. 1991).
Accordingly, we conclude that the district cour t did not err in dismissing the action against the district. Moreover, in light of the union’s inability to allege facts sufficient to state a claim against the district even after being granted leave to amend, we cannot say that the district court abused its discretion in dismissing the action with prejudice. See In
re NationsMart Corp. , 1997 WL 721551 (8th Cir. Nov. 21, 1997) at *13 (district court did not abuse discretion in denying leave to amend).

III.

The union’s section 1983 claim against the district and its claim against Rollin s mustbe r ecognized as analytically distinct. See, e.g. , Andrews , 98 F.3d at 1078. I n dismissing the claim for individual liability against Rollins, the district court stated:

Pursuant to the relevant statutes cited herein, the Court concludes tha t Rollins, as superintendent, could not be a final policymaker for the SchoolThis particular allegation by Rowe const itutes the only factual circumstance set 2 forth in the amended complaint that states a potential claim against Rollins upon which relief under section 1983 could be based. In particular, we reject out of hand th e union’s suggestion that such liability could be premised upon Rollins’s having directed the school board attorney to research the question whether the district could terminate its employees because of their support of the union. I n their motion to dismiss, defendants also asserted that Rollins is entitled t o 3 qualified immunity in this matter, an argum ent they renew in their brief on appeal. We have held that a dismissal on t his basis will be upheld on a 12(b)(6) motion only when the im munity is established on the face of the complaint. See Hafley v. Lohman , 9 0 F.3d 26 4, 266 (8th Cir. 1996), cert. denied , 117 S. Ct. 1081 (1997). In light of ou r -8- District with respect to personnel decisions and unfavorable employment action. I t follows that the Court m

ust therefore conclude, as a matter of law, that Rollins is not the final policymaker for the School District and that he is not subject to individual § 198 3 liability.

Order of Dismissal at 12.
In fact, a supervisor may be subject to individual liability under section 1983 “if he directly participates in

a constitutional violation.” Andrews , 98 F.3d at 1078. This is true regardless of whether the supervisor is an authorized policymaker for purposes o f municipal liability. See id. In other words, Rollins need not be a final policymaker for the district in order to be subject to individual liability for actions that he himsel f performed.

T e achers have the right to associate with the union of their choice. See Missouri Nat’l Educ. Ass’n v. New Madrid County R-1 Enlarged Sch . Dist. , 810 F.2d 164, 166-67 (8th Cir. 1987). School officials, in turn, while “free to express their views on unions and to urge teachers to join or not to join a union,” may not “terminate or otherwis e discriminate against employees who act agai nst their wishes.” Id. Accepting as true her allegation that Rollins was responsible f or placing her on probation and that he took such action intending to punish her for involvement in union activ ities, we conclude that Rowe 2 has stated a claim against Rollins that is sufficient to survive a motion to dismiss. 3holding in Missou ri Nat’l Educ. Ass’n , we cannot say that immunity is established on

the face of the complaint. -9- The dismissal of all claims against the district is affirmed. The dismissal of claims by the uni on and Ridenour against Rollins is affirmed. The dismissal of Rowe’s clai m against Rollins in his individual capacity is reversed, and the case is remanded to th e district court for further proceedings consistent with this opinion.
A true copy.

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