MEMPHIS, TENNESSEE AREA LOCAL, AMERICAN POSTAL WORKERS UNION, AFL-CIO a/k/a AMERICAN… v. City of Memphis; H. B. Phillips, Inc.; Pro-Tech Security, Inc.

*This decision was originally issued as an “unpublished decision”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

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

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No. 02-5694 Memphis, TN Area Local v.
City of Memphis, et al.
5
failing to respond to or investigate threats to the safety of
strikers (including allegations that Union members on the
picket line were struck by vehicles driven by non-striking
employees), and compelling strikers to provide personal
information. J.A. at 11, 12. In addition to the unlawful
actions of Memphis, singularly, “Phillips and its agents, and
Pro-Tech and its agents, conspired with Memphis, through its
on-duty and off-duty police officers, to engage in the [pattern
of] police misconduct described in ¶ 20 [of the complaint].”
J.A. at 11; Compl. ¶ 22. The alleged police misconduct
described in paragraph 20 was “committed in furtherance of
the conspiracy,” and “Memphis knew or reasonably should
have known that the actions of the on-duty and off-duty MPD
officers were unlawful and in violation of federal laws and the
Constitution of the United States.” J.A. at 7, 8; Compl.
¶¶ 25, 28. Finally, the Union alleges that, by means of their
conspiracy with the other Defendants, Pro-Tech and Phillips
were acting under color of state law. J.A. at 7; Compl. ¶ 27.
II. DISCUSSION
A. Standard of Review
This court reviews de novo a district court’s decision
regarding a motion to dismiss, pursuant to FRCP 12(b)(6),
because the district court decision is based purely on the legal
sufficiency of a plaintiff’s case. Barrett v. Harrington, 130
F.3d 246, 251 (6th Cir. 1997). Under the liberal notice
pleading rules, a complaint need only put a party on notice of
the claim being asserted against it to satisfy the federal rule
requirement of stating a claim upon which relief can be
granted. FED.R.CIV.P. 8(a); Swierkiwicz v. Sorema N.A., 534
U.S. 506, 508 (2002) (holding that a court may dismiss a
complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations). A complaint need not anticipate every defense
and accordingly need not plead every response to a potential
defense. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988)
6 Memphis, TN Area Local v.
City of Memphis, et al.
No. 02-5694
(stating that a civil rights plaintiff need not anticipate an
affirmative defense which must be pleaded by the defendant).
A court must construe the complaint in the light most
favorable to the plaintiffs and accept as true all well-pleaded
factual allegations. Cooper v. Parrish, 203 F.3d 937, 944
(6th Cir. 2000). Claims made pursuant to 42 U.S.C. § 1983
are not subject to heightened pleading standards. Leatherman
v. Tarrant County Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 165-66 (1993) (rejecting heightened
pleading standards for § 1983 claims); Jones v. Duncan, 840
F.2d 359 (6th Cir. 1988) (holding that § 1983 complaints
need not set down in detail all the particularities of a
plaintiff’s claim against a defendant).
B. Section 1983 Liability for Memphis
To set forth a cognizable § 1983 claim against a
municipality, a plaintiff must allege that (1) agents of the
municipality, while acting under color of state law, (2)
violated the plaintiff’s constitutional rights, and (3) that a
municipal policy or policy of inaction was the moving force
behind the violation. City of Canton v. Harris, 489 U.S. 378,
379 (1989).
1. The Actions of the On-Duty Police Officers
There is no doubt that the Union has sufficiently pleaded
the first two elements, “acting under color of law” and “a
violation of protected rights,” regarding the actions of the on-
duty officers. At issue is whether the phrases “conspired with
Memphis, through its on-duty and off-duty MPD police
officers, to engage in the police misconduct” or “Memphis,
through its on-duty and off-duty police officers, has engaged
in a pattern of police misconduct,” sufficiently allege the third
element.
A municipal “custom” may be established by proof of the
knowledge of policymaking officials and their acquiescence

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No. 02-5694 Memphis, TN Area Local v.
City of Memphis, et al.
7
in the established practice. See Fletcher v. O’Donnell, 867
F.2d 791, 793-94 (3d Cir. 1989). In its complaint, the Union
contends that Memphis “knew or reasonably should have
known that the actions of the on-duty and off-duty MPD
police officers were unlawful and in violation of federal laws
and the Constitution of the United States.” J.A. at 8; Compl.
¶ 28. While the Union fails to specifically allege that there
was knowledge on the part “of policymaking officials,” a
plaintiff need not anticipate every defense and accordingly
need not plead every response to a potential defense. Poe,
853 F.2d at 424.
Furthermore, the Union does not state that the unlawful
actions were part of an established practice: the closest it
comes is the phrase “engaged in a pattern of police
misconduct.” It is possible that this phrase is used in
reference to the actions of the on-duty officers with regard to
this particular strike (as opposed to a pattern or practice of
strike-breaking). Nonetheless, because this court “must
construe the complaint in the light most favorable to the
plaintiffs,” the broader interpretation (i.e., that the Union is
alleging a pattern or practice) is the proper interpretation.
Accordingly, to the extent that the district court’s grant of the
defendants’ motion to dismiss applies to the liability of
Memphis for the actions of the on-duty police officers, we
reverse the decision of the district court.
2. The Actions of the Off-Duty Police Officers
The United States Supreme Court has held that acting under
color of state law requires that a defendant in a § 1983 action
have exercised the power “possessed by virtue of state law
and made possible only because the wrongdoer is clothed by
the authority of state law.” West v. Atkins, 487 U.S. 42, 48
(1988); Redding v. St. Edward, 241 F.3d 530 (6th Cir. 2001).
“It is the nature of the act performed, not the clothing of the
actor or even the status of being on-duty, or off-duty, which
determines whether the officer has acted under color of law.”
8 Memphis, TN Area Local v.
City of Memphis, et al.
No. 02-5694
Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975).
Accordingly, this court has held that a police officer acts
under color of state law when he purports to exercise official
authority. Waters v. City of Morristown, Tennessee, 242 F.3d
353, 359 (6th Cir. 2001). Such manifestations of official
authority include flashing a badge, identifying oneself as a
police officer, placing an individual under arrest, or
intervening in a dispute between third parties pursuant to a
duty imposed by police department regulations. See, e.g.,
Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980).
In the instant case, the off-duty officers were employed by
a private firm to provide security services for a private
company. The Union alleges that off-duty officers harassed,
intimidated, and threatened to arrest and harm picketers at the
Phillips facility, and claims that these threats and actions,
made through the use of one’s police officer status, are all
indicia of acting under the color of state law. Under the facts
alleged, it is possible that an on-duty police officer working
the picket line confronts a Union member one hour, goes
home and changes uniforms, then comes back to the exact
same picket as an off-duty police officer and performs the
same acts. Even more, it is possible that an off-duty police
officer threatens to arrest a Union member, goes home and
changes into uniform, then comes back and follows through
with that threat. Under such circumstances, the line
separating the color of law becomes blurred, if not altogether
indistinguishable. See Screws v. United States, 325 U.S. 91,
107-10 (1945). Therefore, for purposes of the instant FRCP
12(b)(6) motion, the Union has sufficiently pleaded that the
off-duty police officers were acting under color of law.
There is no dispute that the Union has sufficiently alleged
violations of federally-protected rights. The remaining issue,
therefore, is whether Memphis was the “moving force behind
the constitutional violations.” City of Canton, 489 U.S. at
389. In its brief, the Union asserts that Memphis has a policy
or custom that its police officers should engage in unlawful

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No. 02-5694 Memphis, TN Area Local v.
City of Memphis, et al.
9
conduct and deprive citizens of federal and constitutional
rights in order to break a strike. The Complaint, however,
merely alleges that Memphis has “a policy and practice of
allowing off-duty police officers to be hired by private
security companies (including Pro-Tech).” J.A. at 3,4;
Compl. ¶ 14. It is the latter contention that must be
scrutinized under FRCP 12(b)(6), and, while this allegation
might satisfy the third element, that Memphis be the “moving
force,” it cannot be said with certainty that allowing police
officers to work as private security guards, in and of itself,
would sufficiently allege a violation of federally-protected
rights.
The Union does contend that Memphis “knew or
reasonably should have known that the actions of the on-duty
and off-duty MPD police officers were unlawful and in
violation of federal laws and the Constitution of the United
States.” J.A. at 8; Compl. ¶ 28. If this statement is designed
to allege either negligence or respondeat superior as a basis
for liability on the part of Memphis, then it is insufficient.
Neither negligence, see Daniels v. Williams, 474 U.S. 327,
330 (1986), nor the doctrine of respondeat superior, see
Monell v. New York City Department of Social Services, 436
U.S. 658, 691 (1978), can provide the basis for § 1983
municipal liability.
If, however, this statement is designed to support an
allegation that Memphis evidences deliberate indifference to
the rights of its inhabitants, such a shortcoming can be
properly thought of as a city policy or custom that is
actionable under § 1983. See City of Canton, 489 U.S. at 389.
Again, because this court “must construe the complaint in the
light most favorable to the plaintiffs,” the broader
interpretation (i.e., that the Union is alleging deliberate
indifference) is the proper interpretation. Furthermore, the
Union does not need to allege that the unlawful actions were
part of an established practice other than allowing police
officers to be employed by private firms (as opposed to being
10 Memphis, TN Area Local v.
City of Memphis, et al.
No. 02-5694
employed for the purpose of strike-breaking), or that there
was knowledge on the part “of policymaking officials.” A
complaint need not anticipate every defense and accordingly
need not plead every response to a potential defense. Poe,
853 F.2d at 424.
3. Conspiracy in Violation of § 1983
The complaint alleges that Phillips and Pro-Tech
“conspired with Memphis, through its on-duty and off-duty
MPD police officers to engage in the police misconduct . . . .”
J.A. at 6; Compl. ¶ 22. Such an allegation could be
interpreted to state that the source for the municipal liability
was the police officers acting in their individual capacities as
decision makers. To connect the actions of the police officers
with Memphis, that interpretation would rely on the doctrine
of respondeat superior, which cannot form the basis for
municipal liability under § 1983. Monell, 436 U.S. at 691.
Alternatively, this allegation, interpreted in the light most
favorable to the Union, could state that the source for the
municipal liability was the conspiracy “with Memphis.”
Because we are constrained to accept the latter, “most
favorable,” interpretation, the motion to dismiss the
conspiracy claim against Memphis is denied.
C. Section 1983 Liability for Phillips
To sustain a § 1983 claim, plaintiff must establish that it
was deprived of a right secured by the Constitution or laws of
the United States, and that this deprivation was caused by a
person acting under the color of state law. Flagg Bros., Inc.
v. Brooks, 436 U.S. 149, 155 (1978); Ellison v. Garbarino, 48
F.3d 192, 194 (6th Cir. 1995).
When a defendant is a private entity, this circuit recognizes
three tests for determining whether its conduct is fairly
attributable to the state: the public function test, the state
compulsion test, and the nexus test. Wolotsky v. Hohn, 960

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No. 02-5694 Memphis, TN Area Local v.
City of Memphis, et al.
11
F.2d 1331 (6th Cir. 1992). The public function test “requires
that the private entity exercise powers which are traditionally
exclusively reserved to the state.” Id. at 1335. The state
compulsion test requires proof that the state significantly
encouraged or somehow coerced the private party, either
overtly or covertly, to take a particular action so that the
choice is really that of the state. Id. Finally, the nexus test
requires a sufficiently close relationship between the state and
the private actor so that the action taken may be attributed to
the state. Id.
Application of these tests to the conduct of a private entity,
however, is relevant only in cases in which there are no
allegations of cooperation or concerted action between state
and private actors. Cooper v. Parrish, 203 F.3d 937, 952 n.2
(6th Cir. 2000) (“If a private party has conspired with state
officials to violate constitutional rights, then that party
qualifies as a state actor and may be held liable pursuant to
§ 1983 . . .”); Moore v. City of Paducah, 890 F.2d 831, 834
(6th Cir. 1989) (holding that individuals who conspire with
state actor to deprive individuals of their federally-protected
rights may be found to have acted under color of state law for
purposes of § 1983 liability). Private persons may be held
liable under § 1983 if they willfully participate in joint action
with state agents. Dennis v. Sparks, 449 U.S. 24, 27-28
(1980); United States v. Price, 383 U.S. 787 (1966) (stating
that to act under color of law does not require that the accused
be an officer of the State. It is enough that he is a willful
participant in joint activity with the State or its agents.);
Hooks v. Hooks, 771 F.2d 935, 943 (6th Cir. 1985) (“Private
persons jointly engaged with state officials in a deprivation of
civil rights are acting under color of law for purposes of
§ 1983.”).
The standard for proving a civil conspiracy was set forth in
Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985):
12 Memphis, TN Area Local v.
City of Memphis, et al.
No. 02-5694
A civil conspiracy is an agreement between two or
more persons to injure another by unlawful action.
Express agreement among all the conspirators is not
necessary to find the existence of a civil conspiracy.
Each conspirator need not have known all of the
details of the illegal plan or all of the participants
involved. All that must be shown is that there was
a single plan, that the alleged coconspirator shared
in the general conspiratorial objective, and that an
overt act was committed in furtherance of the
conspiracy that caused injury to the complainant.
Id. at 943-44; Moore, 890 F.2d at 834; see also Pillette v.
Detroit Police Dept., 661 F. Supp. 1145 (E.D. Mich. 1987),
aff’d, 852 F.2d 1288 (6th Cir. 1988).
In the present complaint, all of the elements of conspiracy
are sufficiently alleged: it is alleged that a single plan existed
(“was the result of an agreement”); that the conspirators
shared in the general conspiratorial objective (“to deprive [the
Union] of its rights, privileges and immunities”), and that an
overt act was committed (that Memphis “continuously
conferred with agents of Phillips and Pro-Tech before
confronting members of the [Union]” and “that Phillips
directed and conspired with the City of Memphis to direct
police officers to harass, threaten and intimidate the plaintiff”)
in furtherance of the conspiracy that caused injury (several
violations are alleged). J.A. at 6; Compl. ¶ 23. Accordingly,
the Union has alleged facts, which if believed, state a claim
against Phillips for which relief could be granted.
D. Section 1983 Liability for Pro-Tech
In the complaint, the Union contends that Pro-Tech
provides security services for Phillips, and that some Pro-
Tech employees are off-duty officers of the MPD. It is
further contended that “Pro-Tech and its agents, conspired

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No. 02-5694 Memphis, TN Area Local v.
City of Memphis, et al.
13
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.

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