                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                      __________________________

                             No. 01-10649
                      __________________________


JAMES T. HENRISE,
                                                Plaintiff-Appellant,

                                versus

JOHN D. HORVATH; CLARENCE V. JOHNS; WARREN BOX; ROBIN FLORES; CITY
OF DESOTO, TEXAS

                                               Defendants-Appellees.

          ___________________________________________________

              Appeal from the United States District Court
                   for the Northern District of Texas
                            (3:97-CV-2472-L)
          ___________________________________________________
                              June 28, 2002

Before WIENER and DENNIS, Circuit Judges, and LITTLE*, District

Judge.

WIENER, Circuit Judge**:

     The district court dismissed the action of Plaintiff-Appellant

James Henrise pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure (“Rule 12(b)(6)”) for failure to state a claim on

which relief could be granted.         Henrise appeals the district


     *
       Chief Judge of the Western District of Louisiana, sitting
by designation.
     **
       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this opinion should not be published and is not precedent except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.

                                   1
court’s dismissal of his action, which asserted claims under 42

U.S.C. § 1983 and § 1985(2) against Defendants-Appellees John

Horvath, Clarence Johns, Warren Box, Robin Flores (collectively,

the “individual defendants”), and the City of DeSoto, Texas (“the

City”).    We affirm the district court’s dismissal of Henrise’s §

1983 claims against all the defendants, but reverse the court’s

dismissal of his § 1985(2) claim against the individual defendants

only.

                      I. Facts and Proceedings

     We set forth the operative facts as they appear in Henrise’s

Second Amended Complaint, which is the version of the facts that

the district court considered when it granted the defendants’ Rule

12(b)(6) motion to dismiss the action.       For purposes of ruling on

such a motion, the district court properly accepted as true —— as

do we —— the facts as they were set forth in the complaint.          We

neither recite nor consider, however, arguments and conclusional

allegations in the complaint.

     Henrise was hired as a police officer by the City of DeSoto,

Texas, in January 1985. He received training and gained experience

by   serving   for   substantial   periods    in   both   the   Criminal

Investigations Division (“CID”) and Special Investigation Unit

(“SIU”).   Henrise eventually received the “Top Cop” award from the

DeSoto Citizens Police Academy Alumni.        He holds a Master Peace

Officer Certification from the Texas Commission on Law Enforcement

Officer Standards and Education, and retains his departmental

                                   2
seniority in the rank of sergeant.          While working in the SIU,

Henrise was under the command of Lt. P. Paul Pothen.             As part of

its official function, the SIU undertook investigations into public

corruption, vice, narcotics, and organized crime.

     In August 1994, Defendant Horvath was confirmed as the Chief

of Police of the City of DeSoto.         Based on their work in the SIU

during the early part of 1995, Henrise and Pothen formed the good

faith belief that Horvath was involved in serious misconduct which

had criminal implications.       This included, but was not limited to,

the release of confidential police murder investigation files to a

civilian   investigator,   the    removal   of   and   failure   to   return

material physical evidence related to a murder investigation, and

the acceptance of both public and private funds to finance a family

vacation to Europe, purportedly on “police business.” In addition,

the SIU uncovered what appeared to it to be significant public

corruption, including bribery, surrounding high ranking DeSoto

public officials and their cohorts.

     In the spring of the following year, Horvath, acting as Chief

of Police, had a private meeting with Henrise.           In that meeting,

Chief Horvath demanded that Henrise provide him with any known

information that was adverse to Pothen, and to observe Pothen and

report back any newly discovered adverse information.                 Henrise

expressly refused Horvath’s demand then and there. Henrise alleges

in his complaint that it was during this meeting that he first

became aware that Horvath was searching for a way to terminate

                                     3
Pothen, and that Horvath was first put on notice, by Henrise

himself, that he would not assist the chief in that scheme, but

instead would oppose it.

     Henrise and Pothen furnished detailed information to the

DeSoto City Manager, Ron Holifield, about the misconduct in which

they believed Chief Horvath had engaged, but Holifield did not act

on those complaints.    At or around the same time, a city employee,

Linda Bertoni, filed a 19-page sworn statement with the City

Manager, the City Mayor, and City Council members in which Police

Chief Horvath’s misconduct was set out in detail.       The City did not

investigate   Horvath’s    activities   in   response     to   Bertoni’s

notification, either.

     According to Henrise, the “end result” of his and Pothen’s

complaint about Horvath was that both officers were placed on

administrative leave by Horvath, and were charged in a complaint

regarding an unrelated search conducted by the SIU.       On the advice

of counsel, Henrise agreed to accept a one-day suspension to

resolve the matter, and then return to duty with the same rank and

seniority.    Henrise   has   consistently   maintained    that   he   did

absolutely nothing wrong regarding the search in question, and only

accepted the suspension so that he could return to police work.

Pothen, on the other hand, was fired, then pursued his appellate

remedies under state civil service laws and later sought other

remedies in federal court.    During this time, Henrise maintained a

strong association with Pothen, both as a fellow officer and close

                                   4
police friend.     Henrise stresses that police officers rely on each

other for emotional and physical support both on duty (including in

life-threatening situations) and off.

     After Pothen was fired, he placed the City and the individual

defendants on notice that he would challenge his termination.

Henrise contends that all the individual defendants were aware that

Henrise maintained a close personal relationship with Pothen and

knew that   he     would    testify    favorably    on    Pothen’s       behalf   and

adversely to the City and Horvath.

     When Henrise returned to work after his one-day suspension, he

reported to defendant Warren Box, Captain of Police for the DeSoto

Police Department.         Even though Henrise’s status was for regular

duty, Box   assigned       him   to   such    demeaning    tasks    as    enforcing

handicapped parking, serving as municipal court bailiff, filing

citations, and moving boxes.            Henrise emphasizes that he was a

highly   trained    investigator       with    seniority    in     his    position,

characterizing as “menial” all of the tasks to which he was

assigned by Box.

     Henrise maintains that the assignments of degrading tasks by

Box were only the first in a long series of retaliatory and

harassing acts against him.           Henrise alleges that these acts were

done in an effort to punish him for his association with Pothen, to

intimidate him into not testifying on Pothen’s behalf, and to

retaliate against him for continuing to associate with Pothen and

vowing to provide truthful testimony on Pothen’s behalf in federal

                                         5
court.    Other alleged harassing and retaliatory instances cited by

Henrise include the initiation by Box of a “baseless internal

affairs investigation” against Henrise for allegedly violating

departmental regulations regarding the security of records (access

to   which   Henrise,   a   senior   sergeant   in   the   department,   was

entitled), and Box’s denial of Henrise’s right to bid on normal

patrol shift assignments.

      In an effort to confirm his beliefs about why he was being

singled out and punished, Henrise met with Horvath to discuss the

matter.      Henrise asserts that Horvath became angry during this

meeting, and “tersely berated” Henrise “in unmistakable terms” for

not severing his relationship with Pothen.           In the same meeting,

Horvath characterized Pothen in vulgar language and referred to a

meeting between Pothen and Henrise that had taken place a week

earlier in a local hotel.     That reference made Henrise realize that

Horvath was tracking Henrise’s off-duty time spent with Pothen, and

convinced Henrise that the actions taken against him were based

directly on his association with Pothen.

      Henrise asserts that after this meeting with Horvath, the

following events took place, which Henrise maintains were either

retaliatory or designed to discourage him from testifying on

Pothen’s behalf or destroy his credibility if he did testify: (1)

Horvath rescheduled Henrise’s shift, assigning a sergeant with less

seniority than Henrise to supervise him; (2) Henrise was again

denied the opportunity to bid for a supervisory position on a

                                      6
patrol shift; (3) a “false” complaint was filed against Henrise

with the Civil Service Commission; (4) an intimidating conversation

with defendant Clarence V. Johns, a Captain with the DeSoto Police

Department, took place on the same day that Pothen filed his

federal lawsuit, the thrust of which conversation was disapproval

of Henrise’s continued association with Pothen; (5) an article was

approved by Captain Johns and then published in the Dallas Morning

News, containing “false information” about an “unnamed officer,”

whom anyone familiar with the DeSoto police department would

recognize as Henrise; and (6) Box commenced yet another internal

affairs investigation of Henrise concerning a class “C” ticket that

Henrise was “superficially involved with.”   (Contrary to customary

policy, avers Henrise, defendant Robin Flores, the Records Division

Supervisor for the DeSoto Police Department, elected to assert a

formal internal affairs complaint instead of contacting Henrise to

resolve the “trivial matter.”)   The investigator of this complaint

concluded that Henrise should be cleared of the allegations, but

Box and Horvath re-opened the investigation, forced a second

interview with the investigator that included defendant Johns, with

the objective, according to Henrise, of sustaining the “baseless”

complaint against Henrise.

     Henrise filed a formal grievance with City Manager Holifield,

against defendant Johns (presumably for his approval of the Dallas

Morning News article, although the complaint does not say).      As

with the complaint filed against Horvath, however, Henrise received

                                 7
no response from the City.

     Horvath left the position of Police Chief, and was replaced by

acting police chief W.M. Broadnax.      When Henrise went to Broadnax

to inquire about the status of “a complaint Henrise had filed

against   Horvath,”1   Broadnax   reportedly   “exploded”   at   Henrise,

swearing at him and referring to Pothen’s attorney by name in his

anger, thereby evidencing, Henrise asserts, Broadnax’s negative

opinion of Pothen, Henrise, and Pothen’s federal lawsuit in which

Henrise was to be a material witness.

     Henrise filed “several” complaints with the City against

Horvath, Johns, and later Broadnax. Henrise alleges that each such

complaint constituted actual notice to the City that Henrise was

being subjected to harassment that amounted to retaliation and

punishment.    None of the complaints were investigated or acted on

by the City.

     In the fall of 1997, Henrise filed his complaint in the

district court, invoking 42 U.S.C. §§ 1983 and 1985, and naming as

defendants     Horvath, Johns, Box, and Flores in their individual

capacities, and the City of DeSoto.      Henrise sued the individual

defendants under § 1983 “pursuant to the First and Fourteenth

Amendments” “for retaliating against him and punishing him for his

continued association with Pothen, and for their conspiracy which


     1
       Henrise’s petition neither clarifies which “complaint
against Horvath” Henrise was inquiring about, nor specifies to
whom that complaint was made.

                                    8
was carried out and designed for that purpose.”   He also sued the

individual defendants under § 1985(2) “for their conspiratorial

attempts to prevent him from testifying in the litigation brought

in federal court by Pothen, and for punishing [Henrise] regarding

the same.”   Last, under § 1983, he sued the City pursuant to the

First and Fourteenth Amendments for “the actions of its policymaker

—— the police chief —— and for knowingly permitting the individual

Defendants to retaliate against, threaten, punish, and intimidate

[him].”

     After the filing of a series of amended complaints, answers,

counter-claims, motions to dismiss, a motion for summary judgment,

and responses thereto, the district court ruled for the first time

on the dismissal motions of the individual defendants and the City.

With respect to the City, the district court denied the motion to

dismiss without prejudice, and required Henrise to file an amended

complaint that would “meet the basic requirements for pleading

municipal liability under Section 1983.”      With respect to the

individual defendants, the court required Henrise to file a reply

to their defense of qualified immunity, “enumerating the specific

conduct of each Defendant on which Plaintiff predicates his claims

for which each Defendant should be held personally liable.”

     Henrise filed a Second Amended Complaint, which was his third

attempt to detail his case against the defendants, the district

court having highlighted the deficiencies of his earlier attempts.

In response, all defendants submitted motions to dismiss, to which

                                9
Henrise had an opportunity to respond.                  Having before it (1) the

defendants’ motions to dismiss, (2) the defendants’ motion for

summary judgment (which remained pending from earlier in the

proceedings), (3) Henrise’s motion for a continuance, and (4) the

individual defendants’ alternative motion to strike the Second

Amended Complaint, the court ruled for the second time, rendering

a memorandum opinion and order.

      In that opinion, the district court granted the individual

defendants’       and    City’s   motions       to    dismiss.       The   individual

defendants’ dismissal motion was granted because the district court

concluded       that    Henrise   failed      to     allege    the   violation     of   a

constitutionally protected right, and that he therefore could not

prove any set of facts that would entitle him to relief.                         In the

alternative, the court held that even if Henrise had alleged the

violation of a constitutional right, it was by no means a right

that was clearly established at the time, so that the individual

defendants were, in any event, entitled to qualified immunity.                          As

for   the   §    1985(2)    conspiracy        claims     against     the   individual

defendants, the district court concluded that Henrise failed to

show the requisite agreement among the defendants to deter Henrise

from testifying in the federal litigation.                    Last, with respect to

Henrise’s claims against the City, the district court found the

complaint       “lacking    in    that   it     does     not    contain    basic    and

fundamental allegations to put DeSoto on notice as to the bases for

its claims regarding municipal policy or custom.”                     The court went

                                           10
on to state        that even if Henrise had adequately shown that the

City   had    an   unconstitutional         policy,   he   failed   to   state   a

constitutional claim for which relief could be granted.                  The court

concluded that Henrise’s claim must fail as a matter of law,

because      the   court   could     find     no   underlying   constitutional

violation.

       Having ruled on these motions to dismiss, the district court

then denied the individual defendants’ alternative motion to strike

the Second Amended Complaint, and dismissed as moot the defendants’

summary judgment motion and Henrise’s motion for a continuance.

Henrise timely filed a notice of appeal from the district court’s

order.

                                   II. Analysis

A. Standard of Review

                  We review de novo a district court’s dismissal for
             failure to state a claim under Rule 12(b)(6).          In
             considering a motion to dismiss, the complaint should be
             construed in favor of the plaintiff, and all facts
             pleaded should be taken as true. Motions “to dismiss for
             failure to state a claim [are] ‘viewed with disfavor, and
             [are] rarely granted.’” A Rule 12(b)(6) dismissal will
             not be affirmed “unless it appears beyond doubt that the
             plaintiff can prove no set of facts in support of his
             claim which would entitle him to relief.”        However,
             “conclusory allegations or legal conclusions masquerading
             as factual conclusions will not suffice to prevent a
             motion to dismiss.” In the context of a 12(b)(6) motion
             in a section 1983 suit, the focus should be “whether the
             complaint properly sets forth a claim of a deprivation of
             rights, privileges, or immunities secured by the
             Constitution or laws of the United States caused by
             persons acting under color of state law.” If there is no
             deprivation of any protected right the claim is properly



                                        11
            dismissed.1

B. Discussion

     Henrise contends that the district court erred in three

fundamental ways: (1) by concluding that he failed to allege the

violation of a constitutional right; (2) by determining that he did

not sufficiently allege a conspiracy; and (3) by finding that his

complaint did not afford the City sufficient notice of his claims.

Our painstaking review of the record satisfies us that the district

court dealt generously with Henrise throughout the course of the

proceedings, and did not err as to contentions (1) and (3).                  We

differ with the court, however, on contention (2), convinced that

Henrise    did   allege   facts   sufficient,   if   proved,     to   show   a

conspiracy and thus survive a Rule 12(b)(6) motion to dismiss.               We

therefore affirm the district court’s ruling as to Henrise’s § 1983

claims against the City and the individual defendants for violation

of a constitutional right.        We reverse the district court’s ruling

as to Henrise’s § 1985(2) conspiracy claims against the individual

defendants, however, and remand for further proceedings.

     1. Failure to allege the violation of a constitutional right

     Two    subsidiary    arguments    are   subsumed   within    Henrise’s

contention that the district court erred when it determined that he

failed to allege the violation of a constitutional right.                The


     1
       Southern Christian Leadership Conference v. Supreme Court
of Louisiana, 252 F.3d 781, 786 (5th Cir. 2001) (internal
citations omitted).

                                      12
first subsidiary argument is that the district court erred in

determining that Henrise’s complaint failed to allege an actionable

violation of his right to freedom of association.         The second is

that the district court unfairly characterized Henrise’s complaint

as alleging only freedom of association claims under the First

Amendment despite allegations in his complaint that, according to

Henrise, state two separate free speech claims. The first argument

is wholly without merit; the second, although facially troubling,

also proves meritless on closer examination.

            a. Freedom of assocation

     Henrise insists that the district court erred in dismissing

his freedom of association claim. Quoting extensively from Roberts

v. United States Jaycees,2 the district court noted correctly that

there are two categories of freedom of association claims.         As the

district court explained,

            The first category is epitomized by “highly personal
            relationships” such as marriage and family, and the
            personal affiliations that necessarily “attend the
            creation and sustenance of these highly personal
            relationships.” [Roberts, 468 U.S. at 618-20]; Hobbs v.
            Hawkins, 968 F.2d 471, 482 (5th Cir.1992). The second
            category recognizes “associational rights derivative of
            the First Amendment rights of speech, assembly, petition
            for redress of grievances, and exercise of religion.”
            Hobbs. v. Hawkins, 968 F.2d at 482.

After “closely examin[ing]” Henrise’s complaint, the district court

concluded that he was asserting the first type of freedom of

association    claim   ——   those   “epitomized   ‘by   highly   personal

     2
         468 U.S. 609, 617-18 (1984).

                                    13
relationships’ such as marriage and family.” As the district court

noted,

               Nowhere in the Plaintiff’s Complaint does he allege that
               he joined with or associated himself with Pothen for the
               express purpose of speaking out on mismanagement,
               corruption or illegal activity that may have been
               occurring   in  the   DeSoto   Police  Department.   ...
               Plaintiff’s claim is based not on his desire to exercise
               any right secured by the First Amendment but on his
               personal friendship with Pothen —— nothing more.

       We agree with the district court.              There is no indication in

the complaint that Henrise was alleging the second type of freedom

of association claim.            Restricted to consideration of only the

first type, therefore, the district court did not err when it

refused to classify Henrise’s close personal and professional

friendship with Pothen as the type of highly personal relationship

that earns First Amendment protection.                Despite Henrise’s attempt

to cast police officers’ friendships as special and unique, those

friendships still are not the type of intimate human relationship

that       demand   protection    as    a    “fundamental    element   of   human

liberty.”3      Henrise’s insistence on appeal that, “[a]t the time of

the filing of the Plaintiff’s Complaint and at the time he was

retaliated against and punished by the individual Defendants, the

First      Amendment   right     of   freedom    of   association   was   clearly

established,” is to no avail.                Albeit true that this right was

clearly established, Henrise’s association with Pothen simply was

not the kind of familial or intimately close personal relationship

       3
           Roberts, 468 U.S. at 618.

                                            14
that is protected by that right.          The district court did not err in

this determination.

            b. Free speech

      Henrise also insists that he alleged two distinct free speech

claims as well, and that the district court erred in characterizing

his complaint as alleging only freedom of association claims under

the First     Amendment.     In    particular,       Henrise    asserts   in   his

appellate brief that his complaint “contains claims of retaliation

for his speech [in reporting Horvath’s suspected criminal activity

to   the   City   Manager]   as   well    as   the   Plaintiff’s    anticipated

testimony in support of Pothen’s federal lawsuit coupled with his

association with Pothen.”          (Emphasis ours.)            As such, Henrise

appears to be classifying both his report of Horvath’s suspected

criminal activity and his intended future testimony on Pothen’s

behalf as protected speech, asserting that the allegations of his

complaint validly state a claim for retaliation for those two

instances of speech.

      As an initial matter, we note that Henrise’s Second Amended

Complaint alleges only the following three causes of action:

            39. Pursuant to the First and Fourteenth Amendments, and
            procedurally pursuant to 42 U.S.C. § 1983, Plaintiff sues
            the individual Defendants for retaliating against him and
            punishing him for his continued association with Pothen,
            and for their conspiracy which was carried out and
            designed for that purpose.

            40. Pursuant to the first clause of 42 U.S.C. § 1985(2),
            Plaintiff sues the individual Defendants for their
            conspiratorial attempts to prevent him from testifying in
            the litigation brought in federal court by Pothen, and

                                         15
             for punishing Plaintiff regarding the same.

             41. Pursuant to the First and Fourteenth Amendments, and
             procedurally pursuant to 42 U.S.C. § 1983, Plaintiff sues
             the City of DeSoto for the actions of its policymaker ——
             the police chief —— and for knowingly permitting the
             individual Defendants to retaliate against, threaten,
             punish, and intimidate Plaintiff. The City was on actual
             notice of this conduct, and failed to prevent it from
             occurring and recurring and by [sic] ratifying such
             conduct.
             [Emphasis added.]

       Taking Henrise’s own expression of his causes of action at

face value, he fails to allege a constitutional free speech claim

at all in ¶ 39, the only paragraph in which any constitutional (as

distinguished     from   statutory)     causes   of    action    are   proffered

against the individual defendants.           The only constitutional claim

asserted in ¶ 39 involves freedom of association, which, as we have

noted, is not applicable on these facts.

       Moving to ¶ 40, and setting aside for the moment the fact that

this    paragraph    expresses    a     statutory     cause     of   action   for

conspiracy, we note that it does pertain to prospective testimony.

Construing     the   complaint    extremely      liberally,      therefore,    we

possibly could glean a free speech claim from ¶ 40 premised on the

fact that Henrise intended to provide testimony at Pothen’s trial

and so informed the defendants.          Last, regardless of which of the

three cause-of-action paragraphs is liberally construed, the causes

of action as Henrise chose to express them offer no indication that

he   means   to   cast   his   report   of   Horvath’s   suspected      criminal

activity as an exercise of free speech for which he suffered


                                        16
retaliation.

     Out of an abundance of caution, however, we have reviewed the

entire record on appeal to see whether Henrise can legitimately

claim to have alerted the court and the defendants through other

pleadings to the fact that he meant to rely, at least in part, on

a freedom of speech claim premised on his and Pothen’s report of

Horvath’s suspected criminal activity.    For the most part, our

record search has uncovered only repeated assertions similar to the

following, taken from Henrise’s reply to the defendants’ motion to

dismiss his Second Amended Complaint:

          Plaintiff alleges that after Pothen was terminated and
          Henrise was returned to work, Horvath engaged in a
          systematic pattern of retaliation against Henrise. This
          retaliation was because Henrise refused to sever his
          association with Pothen, and because Henrise was to
          testify favorably in Pothen’s federal lawsuit.
          [Emphasis added.]

     In fairness, we must note that there is one instance in the

record when Henrise equates his report of Horvath’s suspected

criminal conduct with an exercise of free speech.   In his reply to

the defendants’ motion for summary judgment,4 Henrise stated:

     4
       The district court did not err by not considering
Henrise’s summary judgment response brief, however. “In
reviewing a Rule 12(b)(6) motion to dismiss for failure to state
a claim, [the district] court’s review is limited to the
allegations contained in the pleadings themselves. ...
[D]ocuments incorporated by reference or attached to the
pleadings as exhibits are considered part of the pleadings for
all intents and purposes.” Harris v. Castle Motor Sales, Inc.,
2001 WL 477241, at *1 (N.D. Ill. 2001) (emphasis added). We
discuss Henrise’s summary judgment response only to show that he
made the free speech legal argument prior to submitting his
Second Amended Complaint; yet he failed to state any free speech

                                17
                 Although the primary thrust of plaintiff’s claims
            center on the retaliation he suffered as a result of his
            relationship with Pothen and the favorable testimony he
            rendered to Pothen against defendants, plaintiff has
            alleged that it was initially his speech against Horvath
            which resulted in his suspension from the police
            department.

We note, however, that this reply was filed before the district

court ruled on the first motions to dismiss.           In that writing, the

district court explained that it had

            reviewed Plaintiff’s First Amended Complaint and finds
            that the Complaint is lacking in specificity and
            particularity as to the conduct, acts, or omissions of
            each Individual Defendant.    The Complaint must allege
            what each Defendant did to cause Plaintiff to be deprived
            of a constitutionally protected right and therefore be
            liable to Plaintiff personally.        In other words,
            Plaintiff must state specifically how each Defendant
            retaliated against him and conspired to deprive him of a
            constitutionally or statutorily protected right. This is
            really not that difficult of a task if the facts for a
            cause of action exist. If the facts exist, all Plaintiff
            has to do is allege the elements of a First Amendment
            retaliation claim, state facts which would establish
            those elements, and state the conduct of each Defendant
            that caused him to be subjected to unlawful retaliation.
            [Emphasis added.]

     Despite these generous and detailed instructions by the court,

when Henrise submitted his Second Amended Complaint (his “third

bite at the apple,” as the district court later characterized it),

Henrise once again failed to state clearly that he was alleging a

claim against the defendants based on their retaliation for his

exercise of    free   speech   (in   the   form   of   reporting   Horvath’s

conduct).   Given the numerous opportunities afforded to Henrise to



cause of action in that amended complaint.

                                     18
“get it right,” therefore, and his continued insistence in every

document (other than the excerpt quoted above) that his retaliation

claims    rested   only    on   his   freedom    of     association   and    his

prospective testimony, we conclude that the district court did not

err by refusing to consider any free speech claim based on the

report by Henrise and Pothen of Horvath’s conduct.

     There remains, however, the possibility, alluded to above,

that Henrise’s Second Amended Complaint might, by very liberal

construction, be read to include a retaliation claim based on

Henrise’s prospective testimony in Pothen’s federal lawsuit.                  In

the end, though, we must reject this possibility.                  His Second

Amended Complaint simply does not allege such a cause of action

against the individual defendants.           As noted, the only related

cause of action to be found is stated in ¶ 40. That cause of

action, however, is expressly based on 42 U.S.C. § 1985(2).                 It is

neither a constitutional claim nor a claim against the individual

defendants except insofar as it alleges their participation in a

conspiracy.    As observed in connection with Henrise’s free speech

claim premised on the report of Horvath’s criminal activity, this

was Henrise’s third attempt to articulate the causes of action he

wished to assert against the defendants, and he               simply failed ——

despite    coaching   by    the   district      court    ——   to   allege    any

constitutional free speech claim whatsoever against the individual

defendants.

     It is hornbook law that a Rule 12(b)(6) dismissal motion

                                      19
should not be granted unless it appears to the district court

“beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.”5                           It is

also well-settled that the court must take all well-pleaded facts

and allegations within the complaint as true when ruling on a Rule

12(b)(6) motion.6        The question that usually confronts a district

court    in    this    context   is   whether       the     plaintiff       has   alleged

sufficient      facts    to   demonstrate      an    ability      to   prove      all   the

elements of the stated cause of action.                        Here, however, the

district court was faced with precisely the inverse problem:

Perhaps the court could cobble together Henrise’s alleged facts to

constitute a free speech cause of action against the individual

defendants, particularly Horvath; but Henrise himself, in three

attempts,      never    identified      such   a    cause    of   action.         However

plaintiff-friendly the 12(b)(6) standard may be, it does not

require (or even permit) a court to “lawyer” a plaintiff’s case,

especially a plaintiff who is already represented by counsel.                           We

therefore agree with the district court that Henrise failed to

state a       constitutional     free    speech      claim,    and     we    affirm     the

district court’s ruling that Henrise failed to allege the violation

of a constitutional right by the individual defendants.


     5
       Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (emphasis
added).
     6
         Brown v. Nationsbank Corp., 188 F.3d 579, 585 (5th Cir.
1999).

                                          20
     2. Conspiracy

     Paragraph 40 of Henrise’s Second Amended Complaint expressly

alleges a cause of action against the individual defendants under

the “first clause of 42 U.S.C. § 1985(2).”     That statute provides

a cause of action when

            two or more persons in any State or Territory conspire to
            deter, by force, intimidation, or threat, any party or
            witness in any court of the United States from attending
            such court, or from testifying to any matter pending
            therein, freely, fully, and truthfully ....7

     In considering this claim, the district court stated:

            The court is aware that Plaintiff contends that
            Defendants engaged in a conspiracy to prevent or
            intimidate him from providing testimony favorable to
            Pothen and adverse to the City of DeSoto; however, the
            court does not understand the basis of this conclusory
            allegation because Henrise has not pleaded specific facts
            supporting a conspiracy. He has not stated what each
            individual Defendant did to promote or further the
            alleged conspiracy. As the essence of a conspiracy is an
            agreement or meeting of the minds of the participants, no
            facts are alleged that an agreement existed or which
            state the nature of each individual Defendant’s acts. A
            hodgepodge of unrelated acts does not a conspiracy make,
            which is all Plaintiff sets forth.            Other than
            Plaintiff’s conclusions, there are no specific facts
            which would indicate that Defendants conspired to prevent
            or intimidate Henrise from testifying on behalf of
            Pothen. ... The conclusory allegations set forth in
            Plaintiff’s Complaint are simply too slender of a reed to
            support a claim under § 1985(2). [Emphasis added.]

We have reviewed the Second Amended Complaint and must disagree

with the district court’s conclusions on this point.

     In ¶ 29, Henrise alleges that:

            [o]n May 4, 1996 plaintiff’s immediate supervisor, Lt.

     7
         42 U.S.C. § 1985(2).

                                  21
          William R. Ransom, stated that defendants Box and Johns
          were actively compiling a dossier on Henrise to use to
          try and terminate Henrise.

This allegation is not merely conclusional.     The suggestion that

Henrise will call an independent witness to state that two police

officials were working together to “actively compil[e] a dossier on

Henrise” contradicts the district court’s finding that “no facts

are alleged that an agreement existed.”     Admittedly, the alleged

purpose of the “dossier” was to “terminate” Henrise, not to prevent

him from testifying, as § 1985(2) requires.    It demands no great

inferential leap, however, for a court to surmise that the same

parties conspiring to “terminate” Henrise just might be doing so

for the ultimate purpose of “intimidat[ing] or threat[ening] [him]

... from testifying to any matter pending [in federal court],

freely, fully, and truthfully,” as the statute requires.    We are

therefore satisfied that Henrise pleaded facts in support of his §

1985(2) conspiracy claim sufficient to survive the pro-plaintiff

requisites of a Rule 12(b)(6) motion.     We therefore reverse the

district court’s dismissal of that claim.

     3. Insufficient notice of claims against the City

     To reiterate, Henrise alleged the following cause of action

against the City as defendant:

         41. Pursuant to the First and Fourteenth Amendments, and
         procedurally pursuant to 42 U.S.C. § 1983, Plaintiff sues
         the City of DeSoto for the actions of its policymaker ——
         the police chief —— and for knowingly permitting the
         individual Defendants to retaliate against, threaten,
         punish, and intimidate Plaintiff. The City was on actual
         notice of this conduct, and failed to prevent it from

                                 22
            occurring and recurring and by [sic] ratifying such
            conduct.

As we have seen, the district court denied the City’s first motion

to dismiss Henrise’s claims.     In doing so, the court observed that

             [r]equiring a plaintiff to identify the specific policy
             or custom and allege that the policy or custom adopted by
             the municipality or policymaking official was the ‘moving
             force’ behind the constitutional violation is in no way
             inconsistent with notice pleading or the mandate of
             [Leatherman v. Tarrant County Intelligence & Coordination
             Unit8]. ... [T]he allegations of a complaint must not be
             conclusory; otherwise, a defendant is not placed on
             notice of the grounds for the claim.           Conclusory
             allegations cannot survive a motion to dismiss. See
             [Guidry v. Bank of LaPlace9]. [Emphasis added.]

     The district court then reviewed the elements that a plaintiff

must allege if he wishes to impose liability on a municipality:

             To support a claim based upon the existence of an
             official custom or policy, the Plaintiff must plead facts
             which show that: 1) a policy or custom existed; 2) the
             governmental policy makers actually or constructively
             knew of its existence; 3) a constitutional violation
             occurred; and 4) the custom or policy served as the
             moving force behind the violation.10

Comparing Henrise’s First Amended to this standard, the district

court stated:

                  The court has reviewed Plaintiff’s Complaint        in
             detail and finds that it does not contain these basic   and
             fundamental allegations to put DeSoto on notice as to   the
             bases for its claims regarding municipal policy          or
             custom.

     8
          507 U.S. 163 (1993).
     9
          954 F.2d 278, 281 (5th Cir. 1992).
     10
       Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521,
532-33 (5th Cir. 1996) (citing Palmer v. City of San Antonio, 810
F.2d 514, 516 (5th Cir. 1987)).

                                   23
            ...
                  Plaintiff’s Complaint does not meet the basic
            requirements for pleading municipal liability under
            Section 1983 as set forth in [Spiller v. City of Texas
            City11] and Meadowbriar. The Court concludes that the
            allegations in Plaintiff’s Complaint are conclusory,
            including the reference to Defendant Horvath as a
            policymaker, and as such fail to state a claim upon which
            relief can be granted.
                  Plaintiff states that he has not pleaded “his best
            case with respect to DeSoto.” ... Plaintiff will get his
            chance to do so because, rather than dismiss his
            Complaint, the court will permit Plaintiff to amend his
            Complaint in accordance with this order. In this regard,
            Plaintiff is strongly admonished to ride his best pony in
            the race, as he will not get another chance to race
            against De Soto.

     When it reviewed the Second Amended Complaint, the district

court found that, despite its earlier admonishment, “little, if

anything, of substance has been added to it that is different from

the Plaintiff’s First Amended Complaint.”          As the “Complaint [was]

still lacking in that it [did] not contain basic and fundamental

allegations to put De Soto on notice as to the bases for its claims

regarding    municipal   liability,”      the   district   court   dismissed

Henrise’s claims against the City for failure to state a claim.

     Our close reading of the Second Amended Complaint confirms the

district    court’s   conclusions.        The   Second   Amended   Complaint

contains a conclusional insistence, without support, that “[i]f

Horvath was not the ‘official’ policymaker, by custom the DeSoto

Chief of Police is deemed the de facto policymaker in his capacity

as the highest ranking law enforcement and police administrator


     11
          130 F.3d 162 (5th Cir. 1997).

                                     24
within the City of De Soto,” and an allegation that, “[b]y failing

to act or investigate Henrise’s complaints regarding retaliation by

its   Chief   of   Police,    the   City    engaged    in   a   deliberate    and

unmistakable course of conduct among various alternatives.”                 These

allegations fall far short of meeting the requirements for the

imposition of municipal liability.              Merely insisting that the

police chief is the “de facto policymaker” will not make it so,12

and the failure of the City to investigate Henrise’s complaints of

retaliation does not constitute a pervasive and widespread practice

sufficient    to   show   a   municipal     “custom”   warranting     the    same

attention as a written policy.13           We therefore affirm the district

      12
       We have, in any event, previously noted the Supreme
Court’s reservations concerning the theory of a “de factor”
policymaker. See Gros v. City of Grand Prairie, Tex., 181 F.3d
613, 616 n.2 (5th Cir. 1999) (“The Supreme Court has rejected the
principle of a ‘de facto policymaker.’ See [City of St. Louis v.
Praprotnik, 485 U.S. 112, 131 (1988)].”).
     In addition, we note in passing the presence of a logical
inconsistency in Henrise’s allegations that the chief of police
is the policymaker, and that the objectionable “policy” is the
City’s failure to investigate Henrise’s complaints of
retaliation. If the policy is not to investigate the police
chief’s retaliatory conduct, then the police chief is not the
policymaker that Henrise needs; he needs to identify a
policymaker who promoted the policy of not investigating the
complaints of retaliation. On the other hand, if he prefers to
cast the police chief as the policymaker, then he needs to
identify a course of conduct engaged in by that individual ——
e.g., the retaliatory conduct itself —— to serve as the “policy.”
      13
       If the plaintiff cannot point to a “policy statement,
ordinance, regulation, or decision that is officially adopted and
promulgated by the municipality’s lawmaking officers,” as Henrise
cannot, then the plaintiff must instead show a “persistent,
widespread practice of city officials or employees, which,
although not authorized by officially adopted and promulgated
policy, is so common and well settled as to constitute a custom

                                      25
court’s dismissal of Henrise’s claims against the City.

                              III. Conclusion

     Our de novo review confirms that the district court determined

correctly that Henrise failed to allege a constitutional violation

against the individual defendants under 42 U.S.C. § 1983, and that

his complaint also lacked the “basic and fundamental allegations to

put De Soto on notice as to the bases for its claims regarding

municipal liability.”        We therefore affirm the district court’s

dismissal   of   Henrise’s    §   1983     claims   against   the   individual

defendants and the City.          We disagree with the district court’s

conclusion, however, that Henrise failed to plead facts showing the

requisite agreement for a conspiracy, so we reverse the district

court’s   dismissal   of   Henrise’s       conspiracy   claims   against   the

individual defendants under 42 U.S.C. § 1985(2), and remand the

case for further proceedings.

AFFIRMED IN PART; and REVERSED AND REMANDED IN PART.




that fairly represents municipal policy.” Johnson v. Moore, 958
F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell,
735 F.2d 861, 862 (5th Cir. 1984) (en banc)) (emphasis added).

                                      26
