                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1976
                         ___________________________

                                     Robin Magee

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Trustees of the Hamline University, Minnesota; Donald Lewis; David Titus, in his
                      individual capacity; John Does, 1-5

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: February 12, 2014
                               Filed: March 27, 2014
                                   ____________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

      Robin K. Magee was terminated by the law school of Hamline University. She
sued under 42 U.S.C. § 1983, alleging that the university, the dean, and the president
of the St. Paul Police Federation (SPPF) conspired with the St. Paul Police
Department to deny her constitutional right to freedom of speech. The district court1
dismissed the complaint for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The district court also denied as futile Magee’s motion to add the
SPPF as a party. She appeals. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.

                                          I.

       Hamline is a private university in St. Paul, Minnesota. Magee, a law professor
tenured since 1994, taught classes on policing, including police misconduct and race
issues in the criminal justice system. On April 17, 2007, she authored a commentary
in the St. Paul Pioneer Press criticizing a state judge’s decision not to “investigate”
allegations of racism in a trial for murder of a St. Paul police officer.

       David A. Titus was a St. Paul police officer and president of the SPPF—a
private federation representing St. Paul officers. Days after Magee’s commentary, he
authored an editorial questioning her “fitness to teach” and stating, “I hope Professor
Magee confines her race baiting and cop-hating to her newspaper submissions and
keeps it out of the classroom.” At Titus’s urging, Police Chief David Harrington also
published an editorial response on the same page of the Pioneer Press.

      The SPPF, under Titus’s leadership, declared a boycott against the university,
seeking punitive action against Magee. The SPPF’s boycott resolution says that
“members of the Saint Paul Police Federation shall not participate in any future
continued education, professional training programs or other similar that is a product
of Hamline University.” The resolution requests “that the police department

      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Arthur J.
Boylan, Chief Magistrate Judge, United States District Court for the District of
Minnesota.

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discontinue and make no future contracts or agreements with Hamline University for
educational purposes.” According to Magee, the university had a “business
relationship” with the Department to provide “continuing education speakers and
classes,” and the Department did not contract with the university after the boycott
resolution passed. Titus and other officers contacted university officials, demanding
they remove Magee. In April 2007, Magee was “summonsed” to explain her
newspaper commentary to the university president, and university administrators
contemplated adverse actions against Magee.

        In 2009, Magee was charged with state tax-law violations and was suspended
from teaching. She was convicted in February 2011 of four gross misdemeanors
(felony charges were dismissed). See State v. Magee, No. 62-CR-09-15147, 2012 WL
1253071 (Minn. Ct. App. Apr. 16, 2012) (unpublished). Donald M. Lewis, dean of
Hamline’s law school since 2008, initiated disciplinary proceedings against Magee.
After a faculty vote, she was terminated in July 2011. Magee sued, contending her
termination was a concerted effort between the university, Lewis, Titus, and the
Department “to please police and to prevent her from teaching about police
misconduct, and otherwise to restrain her speech, and as retaliation for past speech
criticizing government.”

                                          II.

       Magee appeals the dismissal of her suit, which this court reviews de novo. See
Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007). This court assumes as true all factual
allegations in the pleadings, interpreting them most favorably to the nonmoving party.
Bell v. Pfizer, Inc., 716 F.3d 1087, 1091 (8th Cir. 2013). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
has facial plausibility when the pleaded factual content allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id., quoting Twombly,
556 U.S. at 555. “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of “further factual enhancement.” Id., quoting Twombly, 556 U.S. at 557.
Determining whether a complaint crosses over the plausibility threshold is a context-
specific task that “requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.

       Magee sued under 42 U.S.C. § 1983, which “imposes liability for certain
actions taken ‘under color of’ law that deprive a person ‘of a right secured by the
Constitution and laws of the United States.’” Dossett v. First State Bank, 399 F.3d
940, 947 (8th Cir. 2005), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 931
(1982). “[A] public employee acts under color of law when he ‘exercise[s] power
possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.’” Johnson v. Phillips, 664 F.3d 232, 239-40
(8th Cir. 2011), quoting West v. Atkins, 487 U.S. 42, 49 (1988). The defendant must
act or purport to act “in the performance of official duties, even if he oversteps his
authority and misuses power.” Id. Acts of officials in “the ambit of their personal
pursuits are plainly excluded” from Section 1983 liability. Dossett, 399 F.3d at 949,
citing Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion).

       “‘[W]hether a police officer is acting under color of state law turns on the
nature and circumstances of the officer’s conduct and the relationship of that conduct
to the performance of his official duties.’” Roe v. Humke, 128 F.3d 1213, 1216 (8th
Cir. 1997), quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995). “‘Absent
any actual or purported relationship between the officer’s conduct and his duties as
a police officer, the officer cannot be acting under color of state law.’”
Ramirez-Peyro v. Holder, 574 F.3d 893, 900 (8th Cir. 2009), quoting Roe, 128 F.3d
at 1216. Factors include: whether the officer is on duty and in uniform, the motivation

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behind the officer’s actions, whether the officer had access to the victim because of
his position, and whether the officer threatened official conduct in the future. Id.

       Magee does not plead sufficient facts that Titus was acting “under color of”
state law. She does not allege he was on duty or in uniform when he published his
editorial, contacted the university, or took any other acts described in the complaint.
Id. She does not plead he was motivated by anything other than his personal concern
and SPPF position. Id.; Dossett, 399 F.3d at 949 (acts of officials in “the ambit of
their personal pursuits are plainly excluded” from Section 1983 liability). She does
not contend he had access to her (or her editorial) because he was an officer. Id.

       Nothing in Magee’s complaint indicates that Titus’s actions were made possible
by, or undertaken in, his position as a police officer. “The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action have
exercised power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49 (internal
quotations omitted). Magee does not assert that Titus, at any time, invoked or used
his authority as a police officer. Id. While his editorial noted he was an officer, this
recites his occupation and does not necessarily indicate he was acting in his official
capacity. See Cancel v. Amakwe, No. 12-4028-CV, 2013 WL 6800558, at *3 (2d Cir.
Dec. 26, 2013) (unpublished) (“self identification” as a police officer is alone
inadequate to “constitute acting under color of state law”).

       Nor does Magee plead sufficient facts about the university or Lewis. To be
liable under § 1983, a private actor must be a “a willful participant in joint activity
with the State” in denying a plaintiff’s constitutional rights. Dossett, 399 F.3d at 947,
citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). A plaintiff must
plausibly allege “‘a mutual understanding, or a meeting of the minds, between the
private party and the state actor.’” Pendleton v. St. Louis County, 178 F.3d 1007,
1011 (8th Cir. 1999), quoting Miller v. Compton, 122 F.3d 1094, 1098 (8th Cir.

                                          -5-
1997). No facts in Magee’s complaint reasonably infer a “meeting of the minds.” The
multiple contacts between Titus, Lewis, and the university do not, without more,
reasonably infer that they conspired to terminate Magee. See Mershon v. Beasley,
994 F.2d 449, 452 (8th Cir. 1993) (“contacts, by themselves and without more” do not
allow the inference of “any mutual understanding” in a § 1983 action).

       Magee focuses on the boycott, which she alleges shows a threat of official
conduct in the future. She believes that Titus, the SPFF, and the Department acted
together to force the university and dean to punish her. However, Magee does not
plead specific facts plausibly connecting any “concerted action” to her termination.
It is conceivable that the university and Lewis, after a faculty vote, terminated her
because of the boycott. However, without additional facts, Magee has not “‘nudged
[her] claims’” of retaliation “‘across the line from conceivable to plausible.’” Iqbal,
556 U.S. at 680, quoting Twombly, 550 U.S. at 570.

                                         III.

       Magee moved to add the SPPF as a defendant. When the district court
dismissed the case, it denied the motion as futile. This court reviews for abuse of
discretion the denial of a motion to amend a pleading. Mississippi River Revival, Inc.
v. City of Minneapolis, 319 F.3d 1013, 1018 (8th Cir. 2003).

      The district court “should freely give leave [to amend a pleading] when justice
so requires.” Fed. R. Civ. P. 15(a). However, a district court may deny leave to
amend where there is “futility of the amendment.” Moses.com Secs., Inc. v.
Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005), quoting
Hammer v. City of Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003).

      The SPPF is a private party. See Montgomery v. City of Ardmore, 365 F.3d
926, 942 (10th Cir. 2004) (a police union is not a state actor). The SPPF is liable only

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if it were “a willful participant in joint activity with the State” to deny Magee’s
constitutional rights. Dossett, 399 F.3d at 947. Magee has not plausibly alleged a
“meeting of the minds” between the Department, the SPPF, and the university.
Miller, 122 F.3d at 1098; Mershon, 994 F.2d at 452. Magee alleges that the SPPF
“influenced” Department policy, but this conclusion is inadequate. She must allege
facts that the two entities acted in concert. Montgomery, 365 F.3d at 942 (plaintiff
must allege facts that the police union “acted in concert” with the public entity). Even
if Magee were able to equate the SPPF and the Department, she has not linked their
activity to the university. The multiple contacts between Titus, the SPPF’s members,
and the university do not, without more, reasonably infer that they conspired to
terminate Magee. See Mershon, 994 F.2d at 452 (“contacts, by themselves and
without more” do not allow the inference of “any mutual understanding” in a § 1983
action). The district court properly ruled that adding the SPPF would be futile.

                                     *******

      The judgment is affirmed.
                      ______________________________




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