           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2     Memphis, TN Area Local v.                     No. 02-5694
        ELECTRONIC CITATION: 2004 FED App. 0083P (6th Cir.)                    City of Memphis, et al.
                    File Name: 04a0083p.06
                                                                         Before: KEITH, MARTIN, and SUTTON, Circuit Judges.
UNITED STATES COURT OF APPEALS                                                                _________________
                  FOR THE SIXTH CIRCUIT                                                            COUNSEL
                    _________________
                                                                         ARGUED: Peter J. Leff, O’DONNELL, SCHWARTZ &
 MEMPHIS , TENNESSEE AREA         X                                      ANDERSON, Washington, D.C., for Appellant. David P.
 LOCAL, AMERICAN POSTAL            -                                     Knox, FORD & HARRISON, Memphis, Tennessee, Henry L.
                                   -                                     Klein, APPERSON, CRUMP & MAXWELL, Memphis,
 WORKERS UNION, AFL-CIO                                                  Tennessee, Debra L. Fessenden, LAW OFFICES OF
                                   -  No. 02-5694
 a/k/a AMERICAN POSTAL             -                                     THOMAS E. HANSOM, Memphis, Tennessee, for
 WORKERS UNION, LOCAL 96,           >                                    Appellees. ON BRIEF: Peter J. Leff, O’DONNELL,
                                   ,
           Plaintiff-Appellant,                                          SCHWARTZ & ANDERSON, Washington, D.C., for
                                   -                                     Appellant. David P. Knox, FORD & HARRISON, Memphis,
                                   -                                     Tennessee, Henry L. Klein, APPERSON, CRUMP &
            v.                     -                                     MAXWELL, Memphis, Tennessee, Debra L. Fessenden,
                                   -                                     Thomas Edwards Hansom, LAW OFFICES OF THOMAS E.
 CITY OF MEMPHIS ; H. B.           -                                     HANSOM, Memphis, Tennessee, Brian L. Kuhn, SHELBY
                                   -
 PHILLIPS, INC.; PRO -TECH                                               COUNTY ATTORNEY’S OFFICE, Memphis, Tennessee,
                                   -
 SECURITY, INC.,                                                         for Appellees.
                                   -
         Defendants-Appellees. -
                                                                                              _________________
                                   -
                                  N                                                               OPINION
       Appeal from the United States District Court                                           _________________
    for the Western District of Tennessee at Memphis
    No. 01-03011—Bernice B. Donald, District Judge.                         DAMON J. KEITH, Circuit Judge. This is an appeal of the
                                                                         order dismissing for failure to state a cause of action this civil
                   Argued: October 24, 2003                              rights action arising from the Defendants-Appellees’ activities
                                                                         relative to picketing by the Plaintiff-Appellant. In light of the
             Decided and Filed: January 21, 2004*                        liberal pleading standards set forth in Federal Rule of Civil
                                                                         Procedure (“FRCP”) 8(a), and adhered to by the federal
                                                                         courts, the district court’s decision to grant the Defendants’
                                                                         motions to dismiss is REVERSED and REMANDED for the
                                                                         reasons set forth below.
    *
      This decision was originally issued as an “unpublished decision”
filed on January 21, 2004. On March 3 , 2004, the court designated the
opinion as one recommend ed for full-text publication.

                                  1
No. 02-5694                 Memphis, TN Area Local v.        3    4    Memphis, TN Area Local v.                  No. 02-5694
                               City of Memphis, et al.                 City of Memphis, et al.

                    I. BACKGROUND                                    For purposes of the motions to dismiss, the following facts
                                                                  were taken as true by the district court, and are treated the
   On December 19, 2001, Memphis, Tennessee Area Local            same by this court. Since April 3, 2001, the Union has been
96 (“Union”) filed a complaint against the City of Memphis        engaged in “picketing and other expressions” in support of a
(“Memphis”), H. B. Phillips, Inc. (“Phillips”), and Pro-Tech      strike against Phillips at or near Phillips’s Memphis,
Security, Inc. (“Pro-Tech”) in the United States District Court   Tennessee facility. Specifically, the picketers tried to call
for the Western District of Tennessee. The Union prayed for       non-striking employees “scabs,” tried to shout slogans at the
injunctive relief, as well as compensatory and punitive           non-striking employees, and tried to use sound amplifying
damages. The complaint alleges that a deprivation of the          devices (such as megaphones) to convey their message.
Union’s rights under the National Labor Relations Act and         During the course of the strike, Memphis has provided police
the U.S. Constitution, in violation of 42 U.S.C. § 1983, arose    services, and Pro-Tech has provided security services at or
during the course of the Union’s strike at Phillips. The Union    near the facility. Certain security officers employed by Pro-
in its complaint avers that this deprivation was caused by on-    Tech are off-duty officers of the MPD.
duty and off-duty police officers of the Memphis Police
Department (“MPD”), acting under color of state law and in          During the strike, Phillips and Pro-Tech, through on-duty
accordance with a Memphis policy or custom, at the direction      and off-duty officers of the MPD, have attempted to “interfere
of and through a conspiracy with Phillips and Pro-Tech and        with, deter, and intimidate” the Union, and have directed
their agents.                                                     MPD officers to “threaten to engage in and engage in force,
                                                                  violence, harassment and the unequal enforcement of the
   On February 1, 2002, Pro-Tech filed a motion to dismiss        law.” J.A. at 10; Compl. ¶¶ 18, 19. Furthermore, “on-duty
the Union’s complaint pursuant to FRCP 12(b)(6) or, in the        MPD police officers continuously conferred with agents of
alternative, for summary judgment. On February 5, 2002,           Phillips and Pro-Tech before confronting members of the
Memphis filed a motion to dismiss. On February 14, 2002,          Union and their sympathizers on the picket line.” J.A. at 11;
Phillips filed a motion to dismiss. On March 19, 2002, the        Compl. ¶ 20.
Union responded to all three motions.
                                                                     Memphis, “through the MPD, has a policy and practice of
  On May 1, 2002, the district court considered Pro-Tech’s        allowing off-duty police officers to be hired by private
motion to dismiss or, in the alternative, for summary             security companies (including Pro-Tech).” J.A. at 9;Compl.
judgment, as a motion to dismiss pursuant to FRCP 12(b)(6)        ¶ 14. All other references to the actions of Memphis are made
and granted the motion, thereby dismissing the Union’s            in the following form: “Phillips and its agents, and Pro-Tech
claims against Pro-Tech. On May 1, 2002, the district court       and its agents, conspired with Memphis, through its on-duty
granted Memphis’ motion to dismiss. On May 2, 2002, the           and off-duty MPD police officers, to engage in the police
district court granted Phillips’ motion to dismiss. On May 20,    misconduct [alleged to have violated the Union’s rights].”
2002, the district court entered judgment by dismissing the       J.A. at 12, 13; Compl. ¶¶ 22, 23, 25, 26, 26 (emphasis added).
Union’s claims against Memphis, Phillips and Pro-Tech in          Specifically, in paragraph 20 of the complaint, the Union
accordance with the May 1 and 2 Orders. On May 21, 2002,          claims that, “Memphis, through its on-duty and off-duty
the Union filed a Notice of Appeal appealing the Orders           police officers, engaged in a pattern of police misconduct”
granting the motions to dismiss.                                  including: arresting and detaining strikers without cause,
No. 02-5694                 Memphis, TN Area Local v.         5    6     Memphis, TN Area Local v.                    No. 02-5694
                               City of Memphis, et al.                   City of Memphis, et al.

failing to respond to or investigate threats to the safety of      (stating that a civil rights plaintiff need not anticipate an
strikers (including allegations that Union members on the          affirmative defense which must be pleaded by the defendant).
picket line were struck by vehicles driven by non-striking         A court must construe the complaint in the light most
employees), and compelling strikers to provide personal            favorable to the plaintiffs and accept as true all well-pleaded
information. J.A. at 11, 12. In addition to the unlawful           factual allegations. Cooper v. Parrish, 203 F.3d 937, 944
actions of Memphis, singularly, “Phillips and its agents, and      (6th Cir. 2000). Claims made pursuant to 42 U.S.C. § 1983
Pro-Tech and its agents, conspired with Memphis, through its       are not subject to heightened pleading standards. Leatherman
on-duty and off-duty police officers, to engage in the [pattern    v. Tarrant County Narcotics Intelligence & Coordination
of] police misconduct described in ¶ 20 [of the complaint].”       Unit, 507 U.S. 163, 165-66 (1993) (rejecting heightened
J.A. at 11; Compl. ¶ 22. The alleged police misconduct             pleading standards for § 1983 claims); Jones v. Duncan, 840
described in paragraph 20 was “committed in furtherance of         F.2d 359 (6th Cir. 1988) (holding that § 1983 complaints
the conspiracy,” and “Memphis knew or reasonably should            need not set down in detail all the particularities of a
have known that the actions of the on-duty and off-duty MPD        plaintiff’s claim against a defendant).
officers were unlawful and in violation of federal laws and the
Constitution of the United States.” J.A. at 7, 8; Compl.                     B. Section 1983 Liability for Memphis
¶¶ 25, 28. Finally, the Union alleges that, by means of their
conspiracy with the other Defendants, Pro-Tech and Phillips          To set forth a cognizable § 1983 claim against a
were acting under color of state law. J.A. at 7; Compl. ¶ 27.      municipality, a plaintiff must allege that (1) agents of the
                                                                   municipality, while acting under color of state law, (2)
                     II. DISCUSSION                                violated the plaintiff’s constitutional rights, and (3) that a
                                                                   municipal policy or policy of inaction was the moving force
                   A. Standard of Review                           behind the violation. City of Canton v. Harris, 489 U.S. 378,
                                                                   379 (1989).
   This court reviews de novo a district court’s decision
regarding a motion to dismiss, pursuant to FRCP 12(b)(6),                1. The Actions of the On-Duty Police Officers
because the district court decision is based purely on the legal
sufficiency of a plaintiff’s case. Barrett v. Harrington, 130         There is no doubt that the Union has sufficiently pleaded
F.3d 246, 251 (6th Cir. 1997). Under the liberal notice            the first two elements, “acting under color of law” and “a
pleading rules, a complaint need only put a party on notice of     violation of protected rights,” regarding the actions of the on-
the claim being asserted against it to satisfy the federal rule    duty officers. At issue is whether the phrases “conspired with
requirement of stating a claim upon which relief can be            Memphis, through its on-duty and off-duty MPD police
granted. FED .R.CIV .P. 8(a); Swierkiwicz v. Sorema N.A., 534      officers, to engage in the police misconduct” or “Memphis,
U.S. 506, 508 (2002) (holding that a court may dismiss a           through its on-duty and off-duty police officers, has engaged
complaint only if it is clear that no relief could be granted      in a pattern of police misconduct,” sufficiently allege the third
under any set of facts that could be proved consistent with the    element.
allegations). A complaint need not anticipate every defense
and accordingly need not plead every response to a potential         A municipal “custom” may be established by proof of the
defense. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988)          knowledge of policymaking officials and their acquiescence
No. 02-5694                 Memphis, TN Area Local v.          7    8    Memphis, TN Area Local v.                   No. 02-5694
                               City of Memphis, et al.                   City of Memphis, et al.

in the established practice. See Fletcher v. O’Donnell, 867         Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975).
F.2d 791, 793-94 (3d Cir. 1989). In its complaint, the Union        Accordingly, this court has held that a police officer acts
contends that Memphis “knew or reasonably should have               under color of state law when he purports to exercise official
known that the actions of the on-duty and off-duty MPD              authority. Waters v. City of Morristown, Tennessee, 242 F.3d
police officers were unlawful and in violation of federal laws      353, 359 (6th Cir. 2001). Such manifestations of official
and the Constitution of the United States.” J.A. at 8; Compl.       authority include flashing a badge, identifying oneself as a
¶ 28. While the Union fails to specifically allege that there       police officer, placing an individual under arrest, or
was knowledge on the part “of policymaking officials,” a            intervening in a dispute between third parties pursuant to a
plaintiff need not anticipate every defense and accordingly         duty imposed by police department regulations. See, e.g.,
need not plead every response to a potential defense. Poe,          Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980).
853 F.2d at 424.
                                                                       In the instant case, the off-duty officers were employed by
   Furthermore, the Union does not state that the unlawful          a private firm to provide security services for a private
actions were part of an established practice: the closest it        company. The Union alleges that off-duty officers harassed,
comes is the phrase “engaged in a pattern of police                 intimidated, and threatened to arrest and harm picketers at the
misconduct.” It is possible that this phrase is used in             Phillips facility, and claims that these threats and actions,
reference to the actions of the on-duty officers with regard to     made through the use of one’s police officer status, are all
this particular strike (as opposed to a pattern or practice of      indicia of acting under the color of state law. Under the facts
strike-breaking). Nonetheless, because this court “must             alleged, it is possible that an on-duty police officer working
construe the complaint in the light most favorable to the           the picket line confronts a Union member one hour, goes
plaintiffs,” the broader interpretation (i.e., that the Union is    home and changes uniforms, then comes back to the exact
alleging a pattern or practice) is the proper interpretation.       same picket as an off-duty police officer and performs the
Accordingly, to the extent that the district court’s grant of the   same acts. Even more, it is possible that an off-duty police
defendants’ motion to dismiss applies to the liability of           officer threatens to arrest a Union member, goes home and
Memphis for the actions of the on-duty police officers, we          changes into uniform, then comes back and follows through
reverse the decision of the district court.                         with that threat. Under such circumstances, the line
                                                                    separating the color of law becomes blurred, if not altogether
      2. The Actions of the Off-Duty Police Officers                indistinguishable. See Screws v. United States, 325 U.S. 91,
                                                                    107-10 (1945). Therefore, for purposes of the instant FRCP
   The United States Supreme Court has held that acting under       12(b)(6) motion, the Union has sufficiently pleaded that the
color of state law requires that a defendant in a § 1983 action     off-duty police officers were acting under color of law.
have exercised the power “possessed by virtue of state law
and made possible only because the wrongdoer is clothed by            There is no dispute that the Union has sufficiently alleged
the authority of state law.” West v. Atkins, 487 U.S. 42, 48        violations of federally-protected rights. The remaining issue,
(1988); Redding v. St. Edward, 241 F.3d 530 (6th Cir. 2001).        therefore, is whether Memphis was the “moving force behind
“It is the nature of the act performed, not the clothing of the     the constitutional violations.” City of Canton, 489 U.S. at
actor or even the status of being on-duty, or off-duty, which       389. In its brief, the Union asserts that Memphis has a policy
determines whether the officer has acted under color of law.”       or custom that its police officers should engage in unlawful
No. 02-5694                Memphis, TN Area Local v.        9    10   Memphis, TN Area Local v.                    No. 02-5694
                              City of Memphis, et al.                 City of Memphis, et al.

conduct and deprive citizens of federal and constitutional       employed for the purpose of strike-breaking), or that there
rights in order to break a strike. The Complaint, however,       was knowledge on the part “of policymaking officials.” A
merely alleges that Memphis has “a policy and practice of        complaint need not anticipate every defense and accordingly
allowing off-duty police officers to be hired by private         need not plead every response to a potential defense. Poe,
security companies (including Pro-Tech).” J.A. at 3,4;           853 F.2d at 424.
Compl. ¶ 14. It is the latter contention that must be
scrutinized under FRCP 12(b)(6), and, while this allegation                 3. Conspiracy in Violation of § 1983
might satisfy the third element, that Memphis be the “moving
force,” it cannot be said with certainty that allowing police      The complaint alleges that Phillips and Pro-Tech
officers to work as private security guards, in and of itself,   “conspired with Memphis, through its on-duty and off-duty
would sufficiently allege a violation of federally-protected     MPD police officers to engage in the police misconduct . . . .”
rights.                                                          J.A. at 6; Compl. ¶ 22. Such an allegation could be
                                                                 interpreted to state that the source for the municipal liability
  The Union does contend that Memphis “knew or                   was the police officers acting in their individual capacities as
reasonably should have known that the actions of the on-duty     decision makers. To connect the actions of the police officers
and off-duty MPD police officers were unlawful and in            with Memphis, that interpretation would rely on the doctrine
violation of federal laws and the Constitution of the United     of respondeat superior, which cannot form the basis for
States.” J.A. at 8; Compl. ¶ 28. If this statement is designed   municipal liability under § 1983. Monell, 436 U.S. at 691.
to allege either negligence or respondeat superior as a basis    Alternatively, this allegation, interpreted in the light most
for liability on the part of Memphis, then it is insufficient.   favorable to the Union, could state that the source for the
Neither negligence, see Daniels v. Williams, 474 U.S. 327,       municipal liability was the conspiracy “with Memphis.”
330 (1986), nor the doctrine of respondeat superior, see         Because we are constrained to accept the latter, “most
Monell v. New York City Department of Social Services, 436       favorable,” interpretation, the motion to dismiss the
U.S. 658, 691 (1978), can provide the basis for § 1983           conspiracy claim against Memphis is denied.
municipal liability.
                                                                            C. Section 1983 Liability for Phillips
   If, however, this statement is designed to support an
allegation that Memphis evidences deliberate indifference to        To sustain a § 1983 claim, plaintiff must establish that it
the rights of its inhabitants, such a shortcoming can be         was deprived of a right secured by the Constitution or laws of
properly thought of as a city policy or custom that is           the United States, and that this deprivation was caused by a
actionable under § 1983. See City of Canton, 489 U.S. at 389.    person acting under the color of state law. Flagg Bros., Inc.
Again, because this court “must construe the complaint in the    v. Brooks, 436 U.S. 149, 155 (1978); Ellison v. Garbarino, 48
light most favorable to the plaintiffs,” the broader             F.3d 192, 194 (6th Cir. 1995).
interpretation (i.e., that the Union is alleging deliberate
indifference) is the proper interpretation. Furthermore, the        When a defendant is a private entity, this circuit recognizes
Union does not need to allege that the unlawful actions were     three tests for determining whether its conduct is fairly
part of an established practice other than allowing police       attributable to the state: the public function test, the state
officers to be employed by private firms (as opposed to being    compulsion test, and the nexus test. Wolotsky v. Hohn, 960
No. 02-5694                 Memphis, TN Area Local v.         11    12    Memphis, TN Area Local v.                     No. 02-5694
                               City of Memphis, et al.                    City of Memphis, et al.

F.2d 1331 (6th Cir. 1992). The public function test “requires            A civil conspiracy is an agreement between two or
that the private entity exercise powers which are traditionally          more persons to injure another by unlawful action.
exclusively reserved to the state.” Id. at 1335. The state               Express agreement among all the conspirators is not
compulsion test requires proof that the state significantly              necessary to find the existence of a civil conspiracy.
encouraged or somehow coerced the private party, either                  Each conspirator need not have known all of the
overtly or covertly, to take a particular action so that the             details of the illegal plan or all of the participants
choice is really that of the state. Id. Finally, the nexus test          involved. All that must be shown is that there was
requires a sufficiently close relationship between the state and         a single plan, that the alleged coconspirator shared
the private actor so that the action taken may be attributed to          in the general conspiratorial objective, and that an
the state. Id.                                                           overt act was committed in furtherance of the
                                                                         conspiracy that caused injury to the complainant.
   Application of these tests to the conduct of a private entity,
however, is relevant only in cases in which there are no            Id. at 943-44; Moore, 890 F.2d at 834; see also Pillette v.
allegations of cooperation or concerted action between state        Detroit Police Dept., 661 F. Supp. 1145 (E.D. Mich. 1987),
and private actors. Cooper v. Parrish, 203 F.3d 937, 952 n.2        aff’d, 852 F.2d 1288 (6th Cir. 1988).
(6th Cir. 2000) (“If a private party has conspired with state
officials to violate constitutional rights, then that party           In the present complaint, all of the elements of conspiracy
qualifies as a state actor and may be held liable pursuant to       are sufficiently alleged: it is alleged that a single plan existed
§ 1983 . . .”); Moore v. City of Paducah, 890 F.2d 831, 834         (“was the result of an agreement”); that the conspirators
(6th Cir. 1989) (holding that individuals who conspire with         shared in the general conspiratorial objective (“to deprive [the
state actor to deprive individuals of their federally-protected     Union] of its rights, privileges and immunities”), and that an
rights may be found to have acted under color of state law for      overt act was committed (that Memphis “continuously
purposes of § 1983 liability). Private persons may be held          conferred with agents of Phillips and Pro-Tech before
liable under § 1983 if they willfully participate in joint action   confronting members of the [Union]” and “that Phillips
with state agents. Dennis v. Sparks, 449 U.S. 24, 27-28             directed and conspired with the City of Memphis to direct
(1980); United States v. Price, 383 U.S. 787 (1966) (stating        police officers to harass, threaten and intimidate the plaintiff”)
that to act under color of law does not require that the accused    in furtherance of the conspiracy that caused injury (several
be an officer of the State. It is enough that he is a willful       violations are alleged). J.A. at 6; Compl. ¶ 23. Accordingly,
participant in joint activity with the State or its agents.);       the Union has alleged facts, which if believed, state a claim
Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir. 1985) (“Private         against Phillips for which relief could be granted.
persons jointly engaged with state officials in a deprivation of
civil rights are acting under color of law for purposes of                    D. Section 1983 Liability for Pro-Tech
§ 1983.”).
                                                                      In the complaint, the Union contends that Pro-Tech
 The standard for proving a civil conspiracy was set forth in       provides security services for Phillips, and that some Pro-
Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985):                       Tech employees are off-duty officers of the MPD. It is
                                                                    further contended that “Pro-Tech and its agents, conspired
No. 02-5694                 Memphis, TN Area Local v.        13
                               City of Memphis, et al.

with Memphis, through its on-duty and off-duty officers, to
engage in the police misconduct.” J.A. at 6; Compl. ¶ 22.
   Pro-Tech cites Fa’Dee Mulazim v. Corrigan, No. 00-1303,
2001 U.S. App. LEXIS 5382 (6th Cir. 2001) (unpublished)
(stating that where an allegation is “wholly conclusory and
totally unsupported by any facts” or “premised upon mere
conclusions and opinions” it will fail to state a claim), to
support its assertion that these allegations are conclusory and
cannot support a civil rights claim. Unlike the complaint in
Corrigan, however, the allegations in the present complaint
are neither “wholly conclusory and totally unsupported by
any facts” nor “premised upon mere conclusions and
opinions.” The conspiracy analysis applied above to Phillips,
which contains sufficient allegations, is the same conspiracy
analysis applicable to Pro-Tech. Therefore, the motion to
dismiss the complaint as to Pro-Tech is denied.
                    III. CONCLUSION
  For the reasons stated above, the district court’s decision to
dismiss the claims against Memphis, Phillips and Pro-Tech is
REVERSED and REMANDED.
