               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-30836
                         Summary Calendar



                        JANICE B. DONAHUE,

                                              Plaintiff-Appellant,

                              versus

                        AL PHILIPUS ET AL.,

                                                        Defendants,

     AL PHILIPUS, individually and as a police chief of the
City of San Antonio; BILL THORNTON, individually and as mayor of
the City of San Antonio; RICHARD PENNINGTON, individually and as
police chief of the City of New Orleans; MARC MORIAL, individually
and as mayor of the City of New Orleans; CITY OF NEW ORLEANS;
PINKERTON’S, INC., incorrectly sued as Pinkerton Security,
PINKERTON INC., Erroneously sued as Pinkerton Security,

                                              Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                       USDC No. 98-CV-795-J
                       --------------------
                           May 11, 2000

Before JONES, DUHÉ and STEWART, Circuit Judges.

PER CURIAM:1

     Janice Butler Donahue argues that the district court erred in

dismissing her civil rights complaint against the Cities of San

Antonio and New Orleans, their mayors and police chiefs, and

     1
        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that this opinion should not be published and is not precedent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.

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Pinkerton, Inc.

     Donahue argues that the district court erred in granting

summary judgment in favor of the City of San Antonio and its mayor

and police chief.       The defendants submitted an affidavit of a

representative of the police department stating that there were no

records, files, or documents showing that the San Antonio Police

Department had placed Donahue under surveillance, arrested her, or

tapped her phones as she alleged in her complaint.           In response to

the motion, Donahue relied on her allegations and failed to present

any affidavits of proposed witnesses or any documents to contradict

the affidavit or to support her numerous allegations.              Therefore,

Donahue failed to carry her burden of establishing the existence of

a material fact issue for trial.           See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986).

     Insofar as Donahue may have alleged that the mayor acted

independently from the police department, any claims that the mayor

personally planted wiretapping devices on Donahue’s phones or

stalked her across the country to California and in Louisiana rise

to the level of being delusional and are subject to a dismissal for

frivolousness.    See    28   U.S.C.       §   1915(e)(2)(B)(i);   Denton   v.

Hernandez, 504 U.S. 25, 32-33 (1992).

     Because Donahue did not come forth with any evidence that the

conduct of any officials, agents, or employees of the City of San

Antonio resulted in a violation of her constitutional rights, the

city cannot be held liable based on an official policy or custom

resulting in a constitutional violation.             See Monell v. Dep’t of


                                       2
Soc. Servs. Of City of New York, 436 U.S. 658, 694-95 (1978).

       Donahue argues that the district court erred in granting the

motion of Pinkerton, Inc., to dismiss for failure to state a claim

upon which relief can be granted.

       To prevail on a claim under § 1983, a plaintiff must show that

the defendant deprived him of a right secured by the Constitution

and laws of the United States while acting under color of state

law.     Manus v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988).                     “A

private party may be held liable under § 1983 if he                     . . . is a

willful participant          in    joint   activity     with   the   State   or   its

agents.”      Cinel    v.     Connick,     15    F.3d   1338,    1343    (5th     Cir.

1994)(internal quotation and citations omitted).                      Conclusional

allegations of conspiracy, however, do not give rise to a § 1983

claim.     Babb v. Dorman, 33 F.3d 472, 476 (5th Cir. 1994).                        A

defendant cannot be held liable under § 1983 on a theory of

vicarious liability, even if state law provides that a supervisor

is vicariously liable for the acts of his subordinates.                  See Doe v.

Rains County Indep. Sch. Dist., 66 F.3d 1402, 1410 (5th Cir. 1995).

       To recover damages for a conspiracy to deny individuals the

equal protection of the laws under 42 U.S.C. § 1985, the plaintiff

must demonstrate that the defendants were motivated by an invidious

discriminatory animus.            Coleman v. Houston Indep. Sch. Dist., 113

F.3d 528, 533 (5th Cir. 1997).                  A cause of action for racial

discrimination in the making and enforcement of contracts, under §

1981,     requires     the        plaintiff     to    demonstrate       intentional

discrimination.       Id.


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     Donahue has not alleged any specific facts showing that

Pinkerton,     Inc.,     entered       into      an     agreement      with    the   other

defendants to engage in activities to deprive Donahue of her

constitutional rights.              Donahue’s allegations of conspiracy are

conclusional    and,        thus,    there       is    no   viable     allegation    that

Pinkerton, Inc., acted “under color of law” or entered into a

conspiracy to deprive Donahue of her rights because of her race.

Donahue did     not    allege       that    she       was   involved     in   contractual

negotiations with the defendants.

     Donahue’s    allegations          do     not     reflect     that   the   company’s

policymakers    implemented          or     endorsed        a   policy   or    custom   of

harassing African-American citizens by stalking them and planting

wiretaps on their telephones.               Even if Donahue’s allegations with

respect to the acts of Pinkerton, Inc.’s employees are accepted as

true, she has failed to state a constitutional claim against

Pinkerton, Inc.        See Fed. R. Civ. P. 12(b)(6).

     Donahue argues that the district court abused its discretion

in dismissing as frivolous the claims against the City of New

Orleans, Mayor Morial, and Chief of Police Pennington.

     In a § 1983 action, “a municipality may not be held strictly

liable for the acts of its non-policy-making employees under a

respondeat superior theory.”                Benavides v. County of Wilson, 955

F.2d 968, 972 (5th Cir. 1992).               The plaintiff must prove that the

policy in and of itself violates constitutional rights, that the

policy   evidences      a    deliberate          indifference       to   constitutional

rights, or that the municipality has a custom of depriving persons


                                             4
of their constitutional rights.              Id. at 690-94.

      Donahue failed to allege in her complaint or amended complaint

that an official policy or custom enacted or ratified by the City

of New Orleans resulted in a violation of Donahue’s constitutional

rights. Therefore, Donahue has not stated an arguable § 1983 claim

against the City of New Orleans.

      Supervisory officials may be held liable for the conduct of a

subordinate only if they “affirmatively participate in acts that

cause constitutional deprivation” or “implement unconstitutional

policies that causally result in plaintiff’s injury.”                    Baker v.

Putnal, 75 F.3d 190, 199 (5th Cir. 1996).

      Neither Donahue’s complaint nor amended complaint contain any

allegations of specific acts of personal misconduct by Mayor Morial

resulting in a constitutional injury to Donahue.                 Nor did Donahue

allege that the Mayor enacted or endorsed an unconstitutional

policy or custom.     The district court did not abuse its discretion

in dismissing the claims against Morial based on frivolousness or

for failure to state a claim.

      In one paragraph of the two hundred two paragraphs contained

in   Donahue’s    complaint      and    amended     complaint,     there      is   an

allegation   that    Chief    Pennington       along   with     Chief   of    Police

Philipus and two unnamed San Antonio police officers placed an

eavesdropping device in Donahue’s residence.                    This allegation

standing alone may not appear to be delusional or irrational.

However,   when     considered     in    the     context   of    all    the    other

allegations of cross-country stalking, wiretapping, and harassment


                                         5
by officials and private citizens made by Donahue, it rises to the

level of an irrational or delusional assertion.             Therefore, the

district court did not abuse its discretion in dismissing the claim

against Pennington as frivolous.           See Denton, 504 U.S. at 32-33.

     Donahue    also   argues   that   the    district   court   abused   its

discretion in denying her request to have a United States Marshal

serve deposition subpoenas, in failing to grant her motion to file

a second amended complaint, and in failing to allow her to make

discovery.     The district court did not abuse its discretion in

denying Donahue’s requests.

      This appeal is without arguable merit and thus frivolous.

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).            Because the

appeal is frivolous, it is DISMISSED.          5th Cir. R. 42.2.

     DISMISSED.




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