42 USC 1983 ConspiracyDistinction between conspiracy under 1983, and under 1985(3)To establish conspiracy under 1983, the plaintiff must show an agreement or meeting of minds to violate his or her constitutional rights and an overt act in furtherance of the conspiracy

To establish conspiracy under under Section 1985(3) plaintiff must show all the elements of (1) a conspiracy (2) for the purpose of directly or indirectly depriving the plaintiff or class of plaintiff equal protection of the laws or equal privileges, and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) where the plaintiff is injured in his or her property, or is deprived of any right or privilege of a United States Citizen…

Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 45 Fed.R.Serv.3d 114, 99 Cal. Daily Op. Serv. 7912, 1999 Daily Journal D.A.R. 10,033 (9th Cir.(Cal.),Sep 24, 1999)[20] Conspiracy 91 7.5(1)

91 Conspiracy      91I Civil Liability            91I(A) Acts Constituting Conspiracy and Liability Therefor                91k7.5 Conspiracy to Interfere with Civil Rights                      91k7.5(1) k. In General. Most Cited Cases To establish the defendants' liability for a conspiracy to violate civil rights, a plaintiff must demonstrate the existence of an agreement or meeting of the minds to violate constitutional rights; the defendants must have, by some concerted action, intended to accomplish some unlawful objective for the purpose of harming another which results in damage, but such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants.

b. The Conspiracy Claim

[20] [21] To establish the defendants' liability for a conspiracy, a plaintiff must demonstrate the existence of “ **‘an agreement or **‘meeting of the minds' to violate constitutional rights.’ ” United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.1989) (en banc) (quoting Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983)). The defendants must have, “by some concerted action, intend[ed] to accomplish some unlawful objective for the purpose of harming another which results in damage.” FN33 Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.1999) (quoting Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1343 (9th Cir.1990) ). Such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants. See id. at 856. **For example, a showing that the alleged conspirators have committed acts that “are unlikely to have been undertaken without an agreement” may allow a jury to infer the existence of a conspiracy. Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir.1991) . Whether defendants were involved in an unlawful conspiracy is generally a factual issue and should be resolved by the jury, “so long as there is a possibility that the jury can ‘infer from the circumstances (that the alleged conspirators) had a ‘meeting of the minds' and thus reached *1302 a understanding’ to achieve the conspiracy's objectives.” Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir.1979), reversed in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980)) (quoting Adickes v. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). “To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy.” Phelps Dodge, 865 F.2d at 1541 .

FN33. The plaintiffs have alleged that the defendants intended to “ ‘expose, disrupt, misdirect, discredit or otherwise neutralize’ and otherwise suppress, punish and chill the protected activities of the plaintiffs, Earth First! and Redwood Summer,” and defined the object of the conspiracy as follows:

[T]o ‘expose, disrupt, misdirect, discredit or otherwise neutralize’ and otherwise suppress, punish and chill the protected activities of the plaintiffs, Earth First! and Redwood Summer.

. . . . .

+ to endeavor to cause Redwood Summer to be seen and branded in the public mind as likely to involve lawless conflict and violence, so that its meaning and non-violent premise would be hidden and people would be frightened and discouraged from coming to participate;

+ to nurture the atmosphere of conflict, danger and division in the communities of the logging district and among the people there, so as to impede the organizing work of plaintiffs and their associates directed at the logging companies and their responsibility for the destruction of the forest and impoverishment of the forest workers; and,

+ to falsely portray plaintiffs and Earth First!, and cause them to be portrayed, as dangerous extremists, involved with bombs and guns and tree-spiking, willing to resort to violence, power-hungry and without conscience in the pursuit of their ends, etc.

Plaintiffs' Seventh Amended Complaint at 15-16.

2. The District Court's Conclusions

The district court found that the appellees had demonstrated that their First Amendment “advocacy was disrupted” by the actions of the appellants and the other defendants. It then held that the appellees had produced sufficient evidence that FBI agents had intended to inhibit their First Amendment activities, citing the showing that the FBI had previously investigated Earth First! and had misrepresented the nature of these prior investigations, had provided false or misleading information about the appellees to the Oakland police, and continued to investigate them even after the Alameda County District Attorney declined to pursue charges. However, the court reasoned that, because the appellees could not establish that the Oakland police had previously investigated Earth First!, had “engage[d] in any coverup,” or had any animus toward them, they could not as a matter of law demonstrate that “the unlawful arrests and searches ... [were] motivated by an intent to chill plaintiffs' speech.”

The district court's reasoning on the appellees' conspiracy allegation paralleled that relating to their First Amendment claims: it held that the appellees had presented circumstantial evidence suggesting animus and agreement among the FBI agents, but had failed to show that the appellants had any animus, intended to chill appellees' speech, or were part of the agreement to falsely accuse appellees of responsibility for the explosion.

3. Sufficiency of the Evidence Presented by the Appellees

[22] Direct evidence of improper motive or an agreement among the parties to violate a plaintiff's constitutional rights will only rarely be available. Instead, it will

almost always be necessary to infer such agreements from circumstantial evidence or the existence of joint action. See Magana, 107 F.3d at 1447; Kunik, 946 F.2d at 1580; Hampton, 600 F.2d at 620-21 . Moreover, “[q]uestions involving a person's state of mind ... are generally factual issues inappropriate for resolution by summary judgment.” Braxton-Secret v. Robins Co., 769 F.2d 528, 531 (9th Cir.1985) .

[23] In the instant case, the appellees have presented sufficient circumstantial evidence that the appellants intended to inhibit their First Amendment activities, and that they entered a conspiracy to further this goal, to survive a motion for summary judgment. **First, the fact that the appellants had themselves viewed the crime scene and the physical evidence raises a question as to whether they would have relied upon the FBI agents' questionable characterization of the evidence absent an improper motive or conspiracy. See Phelps Dodge, 865 F.2d at 1541 **(police failure to exercise independent judgment may help demonstrate involvement in conspiracy). **Second, some of the misinformation included in, and some of the material omissions from the search warrant affidavits were directly attributable to the appellants, which permits the inference of an improper motive for such conduct. Third, the appellants actively publicized the inaccurate information to the media, an act which is consistent with a desire to create a negative impression of Earth First! among the public. Fourth, the Oakland police department had a division that had monitored the activities of Earth First! and cooperated with the FBI prior to the bombing incident. Fifth, the Oakland police, in the search warrant affidavit, stated their belief that appellees were “members of a violent terrorist group.” Such a statement strongly suggests that the officers *1303 might have wanted to inhibit both the group's operations and the activities of its members. And finally, given the district court's findings of a factual dispute on the point, we must assume for purposes of this opinion that a conspiracy existed among FBI agents Doyle, Reikes, Sena, Buck, Hemje and Conway. The fact that the appellants acted in close cooperation with these “conspirators” in planning and conducting their investigation, and that both the FBI agents and the appellants contributed misinformation to the probable cause showings that allowed the appellants to obtain the search warrants, is highly probative as to the existence of an agreement, implicit or explicit, among the appellants and the FBI “conspirators”. See Phelps Dodge, 865 F.2d at 1545, 1547 (characterizing the existence of a conspiracy as a “smoking gun” with regard to a plaintiff's attempt to prove that a particular defendant was part of that conspiracy).FN34

FN34. The fact that the Oakland police officers held meetings with and conducted a joint investigation with the FBI agents renders such evidence even more probative on the question of the involvement of the Oakland police officers. “The ability and opportunity to conspire, while insufficient alone, constitute circumstantial evidence of actual participation in the conspiracy.” Id. at 1547.

[24] The possibility that other inferences could be drawn that would provide an alternate explanation for the appellants' actions does not entitle them to summary judgment. See Phelps Dodge, 865 F.2d at 1542 (inference need not be most likely but merely a “rational” or “reasonable” one); Hampton, 600 F.2d at 621 (“The fact that ‘all of the evidence ... does not point in one direction and different inferences might reasonably be drawn from it’ does not justify judicial intrusion into the jury's role in determining whether a civil conspiracy existed.”) (quoting Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 700-01, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962) ). In other cases, we have allowed similar circumstantial showings to withstand summary judgment motions. See Phelps Dodge, 865 F.2d at 1543, 1547 (company's powerful position and close relationship with law enforcement, meeting at which company urged police to treat plaintiffs harshly, inequitable treatment of plaintiffs by police, and active

cooperation between company and police during strike was sufficient evidence of company's participation in conspiracy to withstand summary judgment).FN35 See also Bell v. City of Milwaukee, 746 F.2d 1205, 1257-58 (7th Cir.1984) (defendants' adoption of modified version of events justifying police shooting without noting discrepancies with earlier story provided sufficient evidence of participation in conspiracy, despite absence of any evidence that defendants knew new version was false); Myatt v. City of Chicago, 816 F.Supp. 1259, 1268 (N.D.Ill.1992) (officer's presence during fellow officer's use of excessive force, warning to others to stay away, and retrieval of fellow officer's gun after it fell out of ankle holster raised inference of conspiracy that defeated summary judgment).

FN35. Fonda v. Gray, 707 F.2d 435 (9th Cir.1983) , is not to the contrary. In that case, we held that a bank's acquiescence to the FBI's investigation request was insufficient to prove its participation in the conspiracy. 707 F.2d at 438. However, the fact that the appellants in this case are law enforcement officials who were involved in a joint investigation with conspirator law enforcement officers clearly distinguishes it from Fonda, in which the defendants whose participation in the conspiracy was at issue were bank employees who demonstrated that they knew absolutely nothing about the nature of the FBI investigation. Id.

We therefore hold that the evidence is sufficient to raise a genuine issue of fact as to whether the appellants intended to interfere with the appellees' political activities and whether they did so by acting together with the FBI agents to falsely portray Bari and Cherney as being responsible for the explosion.

IV.

CONCLUSION

The district court's denial of summary judgment to appellants on the issue of *1304 qualified immunity is AFFIRMED; its grant of summary judgment to appellants on the appellees' claims of First Amendment violations and conspiracy is REVERSED; and the case is REMANDED for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.SCHROEDER, Circuit Judge, concurring:

United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 57 USLW 2467, 130 L.R.R.M. (BNA) 2353, 110 Lab.Cas. P 56,017 (9th Cir.(Ariz.), Jan 18, 1989)

[Cited 98 times for this legal issue]United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539

91 CONSPIRACY91I Civil Liability

91I(B) Actions

91k19 k. Evidence.C.A.9.Ariz.,1989Evidence that police failed to exercise independent judgment will support inference of conspiracy with private party, for purpose of establishing § 1983 liability. 42 U.S.C.A. § 1983 .

[Cited 8 times for this legal issue]Marshall v. Odom, 156 F.Supp.2d 525 D.Md.S.Div.,2001To establish a civil conspiracy under § 1983, plaintiff must present evidence that defendants acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which resulted in deprivation of a constitutional right, by presenting specific circumstantial evidence that each member of the alleged conspiracy shared same conspiratorial objective, such as would reasonably lead to the inference that defendants positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan. 42 U.S.C.A. § 1983 .

[Cited 7 times for this legal issue]Venegas v. Wagner, 831 F.2d 1514 C.A.9.Cal.,1987Evidence supported jury's conclusions that police officers procured false testimony from witness and denied plaintiff a fair trial in a murder prosecution and that officers violated civil rights statutes. 42 U.S.C.A. §§ 1983 , 1985(3) .

[Cited 7 times for this legal issue]Stone v. City of Chicago, 738 F.2d 896 C.A.7.Ill.,1984Evidence in civil rights action alleging, inter alia, that police officers conspired to hinder due course of justice by engaging in cover-up of involvement of officers in accident involving plaintiff or by engaging in cover-up of use of excessive force in effecting arrest of plaintiff and his wife following the accident, including fact that officers were huddled together at intersection conversing, that several made racial slurs against plaintiffs, that official police reports omitted reference to police car involved in accident, that officers failed to report hit-and-run allegations to appropriate authority, and that none of the officers took names of witnesses who might have seen application of excessive force, was sufficient to support verdict for the plaintiffs. 42 U.S.C.A. § 1985 .

[Cited 6 times for this legal issue]Calcutt v. Gerig, 271 F. 220 C.A.6.Tenn.,1921In a civil action for conspiracy, plaintiff need not prove preliminary meeting of the defendants, or a definite plan or agreement by them to injure his person or property; but it is sufficient if the proof shows a concert of action in the commission of the unlawful acts, from which the natural inference arises that they were in furtherance of a common design of the alleged conspirators.

[Cited 5 times for this legal issue]Handeen v. Lemaire, 112 F.3d 1339 C.A.8.Minn.,1997To establish conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO), plaintiff need establish only a tacit understanding between parties, and can rely wholly on circumstantial evidence of each defendant's actions. 18 U.S.C.A. § 1962(c, d) .

[Cited 5 times for this legal issue]Neibel v. Trans World Assur. Co., 108 F.3d 1123

C.A.9.Cal.,1997Substantial evidence supported jury's finding that insurance company agreed to have some part in directing agent's affairs concerning tax avoidance scheme, which thus supported verdict against insurance company for civil violation of conspiracy provision of Racketeer Influenced and Corrupt Organizations Act (RICO); president of insurance company and agent discussed tax scheme involving sales of insurance and how they would profit from it, insurance company hired agent's agents as independent contractors to sell policies, president of insurance company appeared at agent's tax seminar and approved of agent's tax form scheme, and insurance company deviated from standard policy to destroy microfilm records while litigation was pending. 18 U.S.C.A. § 1962(d) .

[Cited 5 times for this legal issue]Jones v. City of Chicago, 856 F.2d 985 C.A.7.Ill.,1988Evidence was sufficient to support determination that police officers had acted in common scheme to “railroad” former murder and rape defendant, now civil plaintiff, in violation of his rights; basis for arrest of plaintiff on momentary identification of him by child with head injury during suggestive circumstances, officers' threats to another officer to prevent exculpatory evidence from being presented to prosecutor, issuance of fraudulent evidence report to prosecuting attorney, and lab report which failed to present exculpatory evidence was sufficient. 42 U.S.C.A. § 1983 .

[Cited 5 times for this legal issue]Martinez v. Winner, 548 F.Supp. 278 D.Colo.,1982Conspiracy may be implied by a course of conduct and other circumstantial evidence, but the circumstantial facts relied upon must at least point in some minimal way to an actionable conspiracy, and there must be some indicia of agreement in unlawful means or end.

[Cited 5 times for this legal issue]Crowe v. Lucas, 595 F.2d 985 C.A.5.Miss.,1979Finding that defendant city officials had conspired to deprive plaintiff alderman of his civil rights was supported by evidence, including evidence that defendants had participated in private meetings at which plaintiff was discussed, as well as evidence of defendants' course of conduct. 42 U.S.C.A. § 1983 .

[Cited 33 times for this legal issue]City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650 C.A.8.Neb.,1989Plaintiff alleging civil rights conspiracy must allege with particularity and specifically demonstrate with material facts that defendants reached an agreement, and plaintiff can satisfy that burden by pointing to at least some facts which would suggest that defendants reached understanding to violate the rights. 42 U.S.C.A. § 1985(3) .

[Cited 3 times for this legal issue]In re Managed Care Litigation, 430 F.Supp.2d 1336 S.D.Fla.,2006To establish conspiratorial agreement element of their civil conspiracy claim against health maintenance organizations (HMOs) under Racketeer Influenced and Corrupt Organizations Act (RICO), which was based on alleged scheme to defraud physicians through use of HMOs' automated claims processing systems to systematically underpay for

services, physicians had to present evidence tending to exclude possibility of independent conduct and tending to show conspiratorial behavior, notwithstanding physicians' contention that HMOs' alleged parallel conduct of mail and wire fraud, being itself unlawful, sufficed to create inference of conspiracy, inasmuch as alleged proof that HMOs engaged in predicate acts of mail and wire fraud was as consistent with independent behavior as with industry-wide conspiracy to manipulate claims processing systems. 18 U.S.C.A. §§ 1341 , 1343 , 1962(d) .

[Cited 21 times for this legal issue]Crowe v. County of San Diego, 608 F.3d 406 C.A.9.Cal.,2010To establish liability for a conspiracy in a § 1983 case, a plaintiff must demonstrate the existence of an agreement or meeting of the minds to violate constitutional rights; such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants. 42 U.S.C.A. § 1983 .

[Cited 21 times for this legal issue]Green v. Benden, 281 F.3d 661 C.A.7.Ill.,2002Agreement among alleged conspirators, for purpose of statute governing action for conspiracy to interfere with civil rights, may be inferred from circumstantial evidence, but only if it is sufficient to permit a reasonable jury to conclude that a meeting of the minds had occurred and that the parties had an understanding to achieve the conspiracy's objectives. 42 U.S.C.A. § 1985(3) .

[Cited 21 times for this legal issue]Exchange Bank v. Moss, 149 F. 340 C.A.8.Mo.,1906Where the petition in an action to recover money, alleged to have been obtained from plaintiff by means of a conspiracy between defendant bank and others, alleged that such conspiracy covered an extended period of time, both before and after the transaction in suit, and was organized for the purpose of swindling all strangers who could be induced to enter into similar transactions, evidence of acts of the cashier of defendant bank in respect to similar transactions while conducting the business of the bank, or declarations made by him to other persons similarly defrauded tending to show the bank's complicity, whether such acts and declarations were before or after the transaction in issue, are admissible to establish the guilty intent and motive of the bank in the transaction involved in the case on trial.

[Cited 20 times for this legal issue]Hernandez v. Joliet Police Dept., 197 F.3d 256 C.A.7.Ill.,1999The agreement upon which a civil rights conspiracy claim is based may be inferred from circumstantial evidence, but only if there is sufficient evidence that would permit a reasonable jury to conclude that a meeting of the minds had occurred and that the parties had an understanding to achieve the conspiracy's objectives. 42 U.S.C.A. § 1985(3) .

[Cited 2 times for this legal issue]Liquidation Com'n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339 C.A.11.Fla.,2008The existence of an agreement to participate in a Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, as well as its objective, may be inferred from circumstantial evidence demonstrating that each defendant must necessarily have known

that the others were also conspiring to participate in the same enterprise through a pattern of racketeering activity. 18 U.S.C.A. § 1962(c).

[Cited 2 times for this legal issue]Johnson v. Branch, 242 F.Supp. 721 E.D.N.C.,1965To prove conspiracy in civil action, plaintiff was not required to prove date and place of defendants' meeting and summary of their conversation, but was bound to show something more than facts which would as well justify defendants' conduct as to lead to inference of conspiracy.

[Cited 2 times for this legal issue]Campbell v. Johnson, 167 F. 102 C.A.9.Wash.,1909Evidence considered, and held to sustain a verdict and judgment for damages in favor of a member of a typographical union against other members for a conspiracy to cause his suspension as a member unlawfully and contrary to the rules of the union.

[Cited 18 times for this legal issue]Cefalu v. Village of Elk Grove, 211 F.3d 416 C.A.7.Ill.,2000Evidence regarding village's alleged efforts to evade liability in connection with arrests was not relevant to arrestees' claim that village and officers conspired to cover up purported violations of arrestees' constitutional rights, even if evidence would have shown that village was more concerned about damage control than it was about justice, when such evidence did not show that village or officers suppressed or withheld information, or took any action, which hampered arrestees in resorting to court to vindicate their constitutional rights. U.S.C.A. Const.Amends. 1 , 14 ; 42 U.S.C.A. § 1983 .

42_usc_1983_conspiracy_civil_liability_actions_evidence_fed_all_digest_5_27_2014.doc

**S.L. ex rel. Lenderman v. St. Louis Metropolitan Police Dept. Bd. of Police Com'rs, 725 F.3d 843 C.A.8.Mo,2013Evidence was sufficient to support arrestee's claim that police lieutenant colonel and sergeant conspired to violate her constitutional rights so as to give rise to § 1983 conspiracy claim; reasonable jury could find that defendants deliberately falsified arrest records to protect the department's reputation following arresting officers' abusive misconduct, **that arresting officers, who were also conspiracy members, engaged in overt acts by submitting the falsified arrest report and misleading the investigators during the internal affairs investigation, and that arrestee's physical and economic injuries were linked to arresting officer's overt acts, which were in turn related to lieutenant colonel's acts of providing officer with information about the internal affairs investigation so she could protect her own interests. 42 U.S.C.A. § 1983

**In re Cowin, 2013 WL 1786026 Bankr.S.D.Tex.Houston.Div.,2013Meeting of minds between participants in alleged conspiracy to use tax lien foreclosure sale process in order to strip deed of trust liens from property and to abscond with

excess foreclosure sale proceeds could be inferred, for purposes of establishing existence of civil conspiracy and holding alleged conspirator liable for overt, illegal acts committed, not only by himself, but by other conspirators, **from repeated pattern of conduct among parties in acquiring real property subject to deed of trust liens, shortly thereafter borrowing funds from confederate or company that he controlled for purpose of paying real property taxes assessed against property, and immediately defaulting on these loans in order to enable confederate to foreclose and to strip off any junior liens.

Koch v. Royal Wine Merchants, Ltd., 23 Fla. L. Weekly Fed. D 385 S.D.Fla.,2012In the context of a conspiracy, under Florida law, mere evidence of knowledge of the crime or association with conspirators is insufficient to establish an agreement, but **proof that the defendant committed an act which furthered the purpose of the conspiracy is circumstantial evidence that can prove the existence of an agreement.

Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1195 **S.D.Iowa.C.Div.,2012Evidence showing that police officers pledged silence to one another for purpose of wrongfully convicting arrestees was admissible in arrestees' § 1983 action alleging that their civil rights were violated during murder prosecution, inasmuch as it was relevant to conspiracy claim and would not be unduly prejudicial. 42 U.S.C.A. § 1983 .

**Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1195 S.D.Iowa.C.Div.,2012Evidence showing that police officers pledged silence to one another for purpose of wrongfully convicting arrestees was admissible in arrestees' § 1983 action alleging that their civil rights were violated during murder prosecution, inasmuch as it was relevant to conspiracy claim and would not be unduly prejudicial. 42 U.S.C.A. § 1983 .

Harrington v. City of Council Bluffs, Iowa, 902 F.Supp.2d 1186 S.D.Iowa.C.Div.,2012Evidence of how non-disclosure of exculpatory reports occurred during murder prosecution would not be admissible, in arrestees' subsequent § 1983 action alleging that their civil rights were violated during murder prosecution, to show that Brady violations themselves violated any particular constitutional right of arrestees, since defendant police officers were immune from such claim, but arrestees would be permitted to offer fact of the violations and evidence as to how violations occurred as support for their claim that officers conspired with prosecutors to intentionally deprive them of constitutional rights. 42 U.S.C.A. § 1983 .

**Poel v. Webber, 899 F.Supp.2d 1155 D.N.M.,2012Absent evidence of an agreement between client's former attorneys and the state-court judge who had dismissed his state-court action against them, or of any concerted action between attorneys and judge, other than evidence that they “communicated directly and continuously through pleadings and motions,” client failed to establish that attorneys conspired with judge to deprive him of his constitutional rights in violation of § 1983. 42 U.S.C.A. § 1983 .

**Johnson v. Dossey, 878 F.Supp.2d 905 N.D.Ill.E.Div.,2012Phone calls and meetings involving law enforcement personnel investigating arson case and personnel associated with investigation conducted by suspect's insurer did not indicate conspiracy under § 1983; communication between parties investigating same case seemed to be not only routine, but authorized and encouraged by Illinois law. 42 U.S.C.A. § 1983 .

**White v. City of Atlanta, 449 Fed.Appx. 804 C.A.11.Ga.,2011Plaintiff failed to show that city police officer was aware of alleged conspiracy to coerce him to conceal illegal search of home that resulted in death of homeowner, so as to support civil rights conspiracy claim; viewed in light most favorable to plaintiff, record established that corrupt supervisor dispatched officer to interview plaintiff, that corrupt officers prepared plaintiff to meet with officer, and that officer questioned plaintiff and then pursued a material witness to complete his investigation. 42 U.S.C.A. § 1985(2).

**In re USA Commercial Mortg. Co., 802 F.Supp.2d 1147 D.Nev.,2011Substantial evidence of motivations that drove financer and loan servicer to conspire to place their interests in the proceeds from the loans in priority to those of the direct lenders supported defendants' liability under Nevada law for civil conspiracy.

**Hernandez v. City of Napa, 2011 WL 996791 (officers denied qualified immunity)N.D.Cal.N.Div.,2011To constitute a civil rights conspiracy, the agreement to violate constitutional rights need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants.

**SigmaPharm, Inc. v. Mutual Pharmaceutical Co., Inc., 772 F.Supp.2d 660 E.D.Pa.,2011Parallel conduct that indicates the sort of restricted freedom of action and sense of obligation that one generally associates with agreement may be sufficient to state a claim of tacit conspiracy.

In re Enron Corp. Securities, Derivative & Erisa Litigation, 2010 WL 5100809 S.D.Tex.Houston.Div.,2010**Under Texas law, a changing cast of characters does nothing to lessen the fact of one conspiracy; once the existence of a common scheme of conspiracy is shown, slight evidence is all that is required to connect a particular defendant with the conspiracy.

Bergin Financial, Inc. v. First American Title Co., 397 Fed.Appx. 119 C.A.6.Mich.,2010Mortgage company argued that title company's independent agent had notified title company that it was under investigation for its involvement in alleged scam as closer of various “flipping” real estate transactions for which title company was title insurer, but presented nothing to indicate that agent notified title company that it had actually participated in such scheme, rather than merely failing to detect and prevent it, thus precluding mortgage company's claim to hold title company directly liable for civil conspiracy to defraud mortgage company.

**Green v. Missouri, 734 F.Supp.2d 814 E.D.Mo.E.Div.,2010To avoid summary judgment on a civil rights conspiracy claim, the plaintiff must allege with particularity and demonstrate with specific material facts that the defendants reached an agreement; while those allegations may include circumstantial evidence, the plaintiff must point to at least some facts that would suggest that defendants reached an understanding to violate his rights. 42 U.S.C.A. § 1985(3).

Green v. Missouri, 734 F.Supp.2d 814 E.D.Mo.E.Div.,2010The question of the existence of a conspiracy to deprive a plaintiff of his or her constitutional rights should not be taken from the jury if there is a possibility the jury could infer from the circumstances a meeting of the minds or understanding among the conspirators to achieve the conspiracy's aims; because the elements of a conspiracy are rarely established through means other than circumstantial evidence, and summary judgment is only warranted when the evidence is so one-sided as to leave no room for any reasonable difference of opinion as to how the case should be decided, a court must be convinced that the evidence presented is insufficient to support any reasonable inference of a conspiracy. 42 U.S.C.A. § 1985 .

Green v. Missouri, 734 F.Supp.2d 814 E.D.Mo.E.Div.,2010Speculation and conjecture are not enough to prove that a civil rights conspiracy existed. 42 U.S.C.A. §§ 1983 , 1985(3).

**Steel v. City of San Diego, 726 F.Supp.2d 1172 S.D.Cal.,2010For purposes of conspiracy under § 1983, agreement or meeting of minds may be inferred on basis of circumstantial evidence, such as actions of defendants. 42 U.S.C.A. § 1983 .

**Steel v. City of San Diego, 726 F.Supp.2d 1172 S.D.Cal.,2010Showing that defendants committed acts that are unlikely to have been undertaken without an agreement may support inference of conspiracy under § 1983. 42 U.S.C.A. § 1983 .

**Crowe v. County of San Diego, 608 F.3d 406 (officer’s lacked qualified immunity)C.A.9.Cal.,2010To establish liability for a conspiracy in a § 1983 case, a plaintiff must demonstrate the existence of an agreement or meeting of the minds to violate constitutional rights; such an agreement need not be overt, and may be inferred on the basis of circumstantial evidence such as the actions of the defendants. 42 U.S.C.A. § 1983 .

**Wackman v. Rubsamen, 602 F.3d 391 C.A.5.Tex.,2010Evidence of a meeting of the minds was sufficient to support finding, in action under Texas law, that hospice patient's caretaker conspired to cause her death, even though there was no direct evidence that the conspirators discussed the details of that death in advance; conspirators had a longstanding, close relationship, there was evidence they

went to the funeral home to discuss arrangements before death occurred, and it was reasonable to infer that since caretaker stood to gain control of all of patient's assets upon her death, coconspirator stood to benefit based on their long-time, close relationship.

.Betancourt v. Rhodes, 2010 WL 672756 West KeySummary[1] D.Idaho,2010Evidence did not support a murder defendant's civil rights conspiracy claims against the coroner who investigated the victim's body. There was no evidence that the coroner conspired to destroy the victim's body fluids and samples, or that he acted with bad faith when he failed to preserve the evidence or failed to perform certain tests.1 91k192 100k232021438012001012021438012001

**Mills v. City of Harrisburg, 350 Fed.Appx. 770 C.A.3.Pa.,2009Police officers who conducted undercover prostitution sting operation did not unlawfully conspire to deprive arrestee of his equal protection rights, where there was no indication that officers acted with discriminatory intent or otherwise targeted arrestee and his co-defendant because of their race. U.S.C.A. Const.Amend. 14 ; 42 U.S.C.A. § 1985(3).

**U.S. v. Santiago-Mendez, 2009 WL 1767666 West KeySummary[1] D.C.P.R.,2009Sufficient evidence supported police officer's conviction for conspiracy to violate civil rights of innocent citizens via violation of due process by the fabrication of a narcotics case. Police officer participated in the fabrication of cases against innocent individuals. U.S.C.A. Const.Amend 5 , 14F

**Roy v. Board of County Com'rs, 607 F.Supp.2d 1297, N.D.Fla.,2009Intentional discrimination, for purposes of a claim under § 1981, § 1982, or § 1985, may be proven through (1) direct evidence, (2) circumstantial evidence, or (3) statistical proof. 42 U.S.C.A. §§ 1981 , 1982 , 1985 .

Roy v. Board of County Com'rs, 607 F.Supp.2d 1297, 1305, (N.D.Fla., Mar 31, 2009)

[1] [2] [3] To prevail on a claim under § 1981 , § 1982 , or § 1985 , a plaintiff must prove intentional discrimination on the basis of race. See Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982) (§ 1981); Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1543 (11th Cir.1994) (§ 1982); Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996) (§§ 1981 and 1982); Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (§ 1985). Because intentional discrimination is required, a mere “showing of disparate impact through a neutral practice is insufficient”; rather, the plaintiff must show “purposeful discrimination.” Ferrill v. Parker Group, Inc., 168 F.3d 468, 472 (11th Cir.1999). To establish purposeful discrimination under § 1981 and § 1982 a plaintiff must show that, under similar circumstances, the defendant treated a white individual differently than it treated him. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 404 (7th Cir.2007), aff'd on other grounds, ––– U.S. ––––, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008) (§ 1981); Burke–Fowler v. Orange County, Fla., 447 F.3d 1319, 1324–26 (11th Cir.2006) (§ 1981); Lawrence v. Courtyards at Deerwood Ass'n, Inc., 318 F.Supp.2d 1133, 1148 (S.D.Fla.2004) (§ 1982). Intentional discrimination may be proven through **(1) direct evidence, **(2) circumstantial evidence, or **(3) statistical proof. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir.2008) .

[4] The court has thoroughly reviewed the record in this case for any evidence of purposeful racial discrimination on the part of any defendant in this case. There is none. In fact, the record is crystal clear *1306 that as of July 2005, when the Roys' plat application was approved, nothing the County or the individual defendants had done interfered with, hampered, impeded, or delayed the Roys' ability to develop and market their property to whomever they wished. Furthermore, subsequent to July 2005 the only thing the Roys were prevented from constructing was the front privacy wall, a prohibition which did not implicate a civil right, much less the violation of a civil right. Moreover, there is nothing in the record to suggest that issuance of the May 11, 2005, stop-work order and removal of the plat application from the May 2005 BOA agenda was racially motivated. The Roys have not shown that, under circumstances similar to those alleged in this case, the County treated a white developer differently than it treated them, i.e., the Roys have come forward with nothing that shows a white developer who built in the scenic corridor setback zone received more favorable treatment by the County than did the Roys. Here, there is absolutely no credible comparator evidence.FN21

FN21. To satisfy their burden of introducing a comparator, the Roys might have produced evidence of a white developer who sought and received a variance of the type denied to them, evidence of a white developer who was permitted to build in the scenic corridor setback zone despite arguable code violations, or other plausible evidence of disparate treatment, but they did not. In fact, they have identified no other property owner or developer for comparison at all.

Even if the plaintiffs were not required to come forward with evidence of a white comparator on their § 1981 and § 1982 claims, they have failed to rebut the defendants' articulated non-discriminatory reason for issuing the stop-work orders and removing their plat from the May 24, 2005, meeting agenda. FN22 More specifically, the Roys' construction of the front privacy wall violated the specific setback and vegetation protection requirements of the Land Development Code. Plaintiffs' fanciful arguments notwithstanding, the front privacy wall construction unquestionably violated these requirements. FN23 Nonetheless, even if Webb, Goldberg, and the County were incorrect in their determination that the wall violated the buffer and vegetation requirements their error does not equate to intentional discrimination. Cf. E & T Realty v. Strickland, 830 F.2d 1107, 1114 (11th Cir.1987) (“[m]ere error or mistake” or “[e]ven arbitrary administration” of a *1307 statute does not amount to intentional discrimination). There is simply not one shred of evidence of pretext on the record before the court. Indeed, the Roys have come forward with absolutely no credible direct or circumstantial evidence, or statistical proof, of any intentional discrimination whatsoever. Rioux, 520 F.3d at 1274. The Roys' claims pursuant to § 1981 and § 1982 therefore are completely without merit.

FN22. To show intentional discrimination through circumstantial evidence, the Roys may use the familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1272–73 (11th Cir.2000) (per curiam ). Under this framework, a plaintiff must first present sufficient evidence to establish a prima facie case of intentional discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. If a prima facie case is established, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Id. If the defendant does so, the burden shifts back to the plaintiff to show that the reason was merely pretextual. Id., 411 U.S. at 804, 93 S.Ct. 1817 .

FN23. According to the Roys, there are multiple “prima facie cases” under which intentional discrimination may be established. Some of the Roys' theories are not applicable—for example, disparate impact does not prove an intentional discrimination claim under §§ 1981, 1982, or 1985—and others are puzzling to the court, such as the

Roys' distinction between “denial of benefit” and “imposition of penalty” outcomes or their complaint that defendants have proven no “violation of rule.”

Additionally, the Roys argue at length about procedural irregularities in the County's processes. In fact the court initially had concerns about some of these irregularities; however, on review of the record it is obvious that any such procedural irregularities operated only to the Roys' benefit.

Likewise, there is no proof of a conspiracy in this case. Section 1985 protects only “the right to be free from being a victim of independent illegality,” but the Roys cannot show that defendants are liable under § 1981 or § 1982 and there can be no conspiracy without an underlying illegal act. See Poirier v. Hodges, 445 F.Supp. 838, 845 (M.D.Fla.1978). Moreover, § 1985 requires proof of a conspiracy, or agreement, between the defendants. Dickerson v. Alachua County Comm'n, 200 F.3d 761, 767 (11th Cir.2000). The Roys have presented no credible factual evidence of an agreement, only allegations which are insufficient to rebut the defendants' denials.FN24 Thus the Roys' § 1985 claim also is without merit. FN25

FN24. The Roys' conspiracy allegations are based on the following. When Goldberg was a defendant in this case he submitted an affidavit in which he denied representing “any other party” than Webb. The Roys insist this contradicts a statement contained in a truncated, 10–second video clip purportedly showing Goldberg at the September 22, 2005, BOA meeting. In the video, an unidentifiable man is filmed from behind saying, “My name is Ken Goldberg, I represent several homeowners in Tranquility Shores and Gulf Vista, which are the neighboring subdivisions to this particular project—.” The Roys insists Goldberg must have been referring to Nelson and Vogel because they live in Gulf Vista; thus, at oral argument, Roy's counsel claimed that Goldberg must have been “lying” either in the affidavit or at the BOA meeting. Second, Roy asserts there is evidence of a conspiracy because Goldberg and Nelson both attended this meeting, where they sat together, and they also attended the February 2, 2006, final meeting at the County's offices.

The court cannot consider the video clip purportedly depicting Goldberg; it is inadmissible because there is no testimony in the record to authenticate it and it is not self-authenticating. Fed.R.Evid. 901, 902. Even if the evidence were admissible, however, the court finds it is utterly insufficient to give rise to an inference that Goldberg lied, thus casting doubt on his credibility. Goldberg's “several homeowners” could have been any number of people other than Nelson and Vogel. Moreover, in his affidavit Goldberg avers that in connection with this matter he represented no party other than Webb. There is simply no contradiction, as the Roys claim, between Goldberg's denial that he represented any other party in this lawsuit and any statement that he represents several other homeowners. Additionally, there is nothing nefarious in Nelson and Goldberg's appearance at the BOA meeting; Roy himself sent the notice of the meeting to Nelson and Webb, Goldberg's client, because they were nearby landowners affected by Roy's variance petition.

**Vodak v. City of Chicago, 624 F.Supp.2d 933 N.D.Ill.E.Div.,2009Evidence was insufficient to support protestors' claim that police officers conspired to arrest them during mass demonstration in violation of the First Amendment rights; evidence that officers discussed making arrests did not support finding that there was a meeting of the minds between officers to violate protestors' rights. U.S.C.A. Const.Amend. 1 .

[Cited 8 times for this legal issue]

**Venegas v. Wagner, 831 F.2d 1514 C.A.9.Cal.,1987Evidence supported jury's conclusions that police officers procured false testimony from witness and denied plaintiff a fair trial in a murder prosecution and that officers violated civil rights statutes. 42 U.S.C.A. §§ 1983 , 1985(3) .

[Cited 3 times for this legal issue]**Gilbrook v. City of Westminster, 177 F.3d 839 C.A.9.Cal.,1999Jury's finding that mayor and city council members conspired to retaliate against firefighters due to firefighters' protected First Amendment activities was supported by evidence that mayor and council members attended closed-door city council meetings in which fire chief discussed what disciplinary actions should be taken against firefighters and that mayor and council members each made hostile statements about firefighters, including threats of political retribution and accusations of criminal conduct. U.S.C.A. Const.Amend. 1 .

**Gibbons v. Lambert, 358 F.Supp.2d 1048 D.Utah.C.Div.,2005Lack of evidence that any police or judicial officers, involved in search of home for presence of drug activities, knew that owner was prominent banker, or that they had taken concerted actions, precluded § 1983 claim that officers conspired to “bring down” homeowner through filing of false charges that homeowner possessed controlled substances and dealt in harmful material to minor. 42 U.S.C.A. § 1983 .

**Burrell v. Anderson, 353 F.Supp.2d 55 D.Me.,2005Absent any evidentiary support for allegations that employees of police department and employees of district attorney's office falsified evidence in assault case involving child, or suppressed evidence in order to avoid finding probable cause to arrest child's mother and her boyfriend, employees did not engage in any conspiracy to discriminate against child's father, on the basis of his gender, although they prosecuted him for alleged domestic violence against mother. U.S.C.A. Const.Amend. 4 ; 42 U.S.C.A. § 1985 .

**Heartland Academy Community Church v. Waddle, 317 F.Supp.2d 984 E.D.Mo.N.Div.,2004A conspiracy existed between two juvenile officers to deprive students at a private school of their Fourth Amendment rights, by illegally seizing them and removing them from the school; there were various meetings, correspondences, and discussions between the officers in which they discussed removal of the children and methods to discourage parents or guardians from returning their children to the school. U.S.C.A. Const.Amend. 4 .

**Drug Mart Pharmacy Corp. v. American Home Products Corp., 288 F.Supp.2d 325 E.D.N.Y.,2003A defendant must take an affirmative action to disavow or defeat the purpose of the conspiracy, to make sure that a withdrawal did occur and is not simply being invented ex post; until affirmative evidence of withdrawal has been produced, a defendant's participation in the conspiracy is presumed to continue until the last overt act by any of the conspirators.

**Williams v. County of Santa Barbara, 272 F.Supp.2d 995 C.D.Cal.,2003Each alleged participant in civil conspiracy need not know the exact details of the plan, but must at least share the common objective of the conspiracy; plaintiffs need not provide direct evidence of the agreement between the conspirators, but must show circumstantial evidence sufficient for a jury to infer from the circumstances that the alleged conspirators reached an understanding to achieve the conspiracy's objectives.

Young v. Biggers, 938 F.2d 565 (5th Cir.(Miss.), Jul 26, 1991)

Plaintiff brought federal civil rights action alleging that numerous defendants conspired to frame him for armed robbery. The United States District Court for the Northern District of Mississippi, L.T. Senter, Jr., Chief Judge, granted summary judgment in favor of defendants. Plaintiff appealed. On rehearing, the Court of Appeals, King, Circuit Judge, superseded earlier opinion at 917 F.2d 873, and held that: (1) prosecuting assistant district attorney was absolutely immune from liability for his actions in initiating prosecution and could not be held liable for alleged acts outside scope of prosecutorial duties where such allegations were wholly unsupported and conclusory; (2) prosecution witness in armed robbery trial and juror were entitled to absolute immunity; (3) conclusory allegations against attorneys and banker were insufficient to plead requisite operative facts to tie them to conspiracy with state actors; and **(4) allegations against police chief and detective stated claim.

Affirmed in part; reversed in part and remanded.[9] Conspiracy 91 18

91 Conspiracy      91I Civil Liability            91I(B) Actions                91k18 k. Pleading. Most Cited Cases

Federal civil rights plaintiff's conclusory allegations that two attorneys and banker conspired to rig jury and deprive him of fair trial as part of conspiracy, with state actors, to convict plaintiff of armed robbery were insufficient to show conspiracy where operative facts were not pled. 42 U.S.C.A. § 1983.

[10] Civil Rights 78 1398

78 Civil Rights      78III Federal Remedies in General            78k1392 Pleading                78k1398 k. Defenses; immunity and good faith. Most Cited Cases      (Formerly 78k238)

**Plaintiff stated federal civil rights claim against police chief and detective for their role in alleged conspiracy to frame him for armed robbery where his complaint alleged specific, operative facts which, if proved, would not permit officers to avoid liability under their defense of qualified immunity; plaintiff alleged that officers **harbored animosity against him, **harassed him, and **persuaded his two alleged accomplices in armed robbery to implicate him, and **that police chief also persuaded chief prosecution witness to falsely identify him. 42 U.S.C.A. § 1983.

73 ALR Fed 78

When is eviction of tenant by private landlord conducted "under color of state law" for purposes of 42 U.S.C.A. § 1983

§ 9[a] Private party's conspiracy or joint action with state official as placing eviction under color of state law—Held under color of state law

                                                [Cumulative Supplement]                                         The allegations and evidence in the following cases demonstrated or supported a

finding that a private landlord had participated in joint action with a state official in attempting to obtain a tenant's eviction, and that the eviction was therefore conducted under color of state law for purposes of 42 U.S.C.A. § 1983

Reasoning that a set of facts might be proven which would demonstrate that a landlord and a process server had conspired, under color of state law, to evict a tenant without due process, the court in Carrasco v Klein (1974, ED NY) 381 F Supp 782, refused to dismiss the tenant's action under 42 U.S.C.A. § 1983 The court found it well established that private persons come within the ambit of § 1983 when they are willful participants in joint activity with the state or its agents. However, the court observed that in this case, the alleged conspiracy was not between a private person and a state official, such as a policeman, but rather between one private person and another, where only the process server was initially brought within the scope of the § 1983 state action requirement under the public function theory. The court acknowledged that a problem of the remoteness of the state's participation was present under these facts, but found no logical reason to distinguish between a conspiracy with an official state actor, such as a policeman, and a conspiracy with a private party clothed with state authority, such as the process server, when the latter is sufficiently public. The court, therefore, declined to dismiss the case pending a fuller development of the record.

Where a landlord sought and received the intervention of town police to effectuate the allegedly illegal eviction of tenants from a rented trailer, the court in Howerton v Gabica (1983, CA9 Idaho) 708 F2d 380, 73 ALR Fed 70, ruled that the eviction had taken place under color of state law for purposes of 42 U.S.C.A. § 1983 The landlord initially told the tenants to move from the trailer after their rent payment was late, and the tenant threatened to harm the landlord if she returned. An eviction notice was subsequently served with a police officer present. When the tenants continued to remain in the trailer, the landlord returned with a police officer, who was in uniform and on duty, to warn the tenants that utilities would be cut off if they stayed. This police officer later returned alone, told the tenants that proper eviction procedures were being used, and advised them to leave. Subsequently, the officer accompanied the landlord when the utilities were disconnected, but the tenants continued to spend some nights in the trailer. On one occasion, three police officers visited the trailer in response to the landlord's call regarding a family disturbance, and one officer asked if the tenants were still looking for a new rental. The District Court dismissed the tenants' § 1983 complaint, finding that the police officers had taken no affirmative action in the eviction, but merely stood by to keep the peace. The tenants argued on appeal that they were denied Fourteenth Amendment rights when the landlords, with police aid, used self-help to evict them without proper notice and a prior judicial hearing. Recounting the various tests employed by the Supreme Court to determine the existence of state action, and finding a similarity between the present case and cases considering police involvement in the repossession of personal property, the court stated that at some point, as police involvement becomes increasingly important, repossession by private individuals assumes the character of state action. The court observed that the eviction had involved more than one incident of police consent to "stand by" in case of

trouble. Rather, the police participation had given the tenants the impression that the landlord acted legally in cutting off the utilities. Furthermore, the court stated that the police officer had actively intervened in recommending that the tenants leave the trailer. The court found the record replete with evidence that the landlords deliberately cloaked themselves with the authority of the state in effecting the repossession. While a single request for police peace-keeping assistance might not make a landlord a "joint actor" with the state for § 1983 purposes, the court concluded, the landlords acted under color of state law where they repeatedly requested the aid of the police to evict the tenants, and where the police intervened at every step.

CUMULATIVE SUPPLEMENT

Cases:

Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Federal Constitution's commands; where such multiple violations are alleged, the courts will not identify as a preliminary matter the claim's "dominant" character, but will examine each constitutional provision in turn; thus, in an action under 42 U.S.C.A. § 1983 by the owner of a trailer home—which action alleges that the Constitution's Fourth Amendment was violated when the home was forcibly removed from a private mobile home park by employees of the park owner, while county sheriff's deputies, aware that the park owner did not have a legal eviction order, watched the removal, informed the trailer home owner that they were there to see that he did not interfere, and refused to accept his complaint for criminal trespass—the owner's Fourth Amendment claim is not properly barred on the theory that the owner's claim is more akin to a challenge against deprivation of property without due process. Soldal v. Cook County, Ill., 506 U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992).

In § 1983 action by tenants against their former landlord and county sheriff for allegedly evicting plaintiffs from their home without lawful process, forcing them to live on street and suffer loss of their children, sheriff was potentially liable in both official and personal capacity, and landlord was liable for acting in concert with sheriff under color of state law. Quinones v Durkis (1986, SD Fla) 638 F Supp 856.

                                        [Top of Section]                                

[END OF SUPPLEMENT]

73 ALR FED 78; When is eviction of tenant by private landlord conducted "under color of state law" for purposes of 42 U.S.C.A. § 1983

§ 9[a] Private party's conspiracy or joint action with state official as placing eviction under color of state law—Held under color of state law

                                                [Cumulative Supplement]                                         The allegations and evidence in the following cases demonstrated or supported a finding that a private landlord had participated in joint action with a state official in attempting to obtain a tenant's eviction, and that the eviction was therefore conducted under color of state law for purposes of 42 U.S.C.A. § 1983 Reasoning that a set of facts might be proven which would demonstrate that a landlord and a process server had conspired, under color of state law, to evict a tenant without due process, the court in Carrasco v Klein (1974, ED NY) 381 F Supp 782, refused to dismiss the tenant's action under 42 U.S.C.A. § 1983 The court found it well established that private persons come within the ambit of § 1983 when they are willful participants in joint activity with the state or its agents. However, the court observed that in this case, the alleged conspiracy was not between a private person and

a state official, such as a policeman, but rather between one private person and another, where only the process server was initially brought within the scope of the § 1983 state action requirement under the public function theory. The court acknowledged that a problem of the remoteness of the state's participation was present under these facts, but found no logical reason to distinguish between a conspiracy with an official state actor, such as a policeman, and a conspiracy with a private party clothed with state authority, such as the process server, when the latter is sufficiently public. The court, therefore, declined to dismiss the case pending a fuller development of the record.**Where a landlord sought and received the intervention of town police to effectuate the allegedly illegal eviction of tenants from a rented trailer, the court in Howerton v Gabica (1983, CA9 Idaho) 708 F2d 380, 73 ALR Fed 70, ruled that the eviction had taken place under color of state law for purposes of 42 U.S.C.A. § 1983 The landlord initially told the tenants to move from the trailer after their rent payment was late, and the tenant threatened to harm the landlord if she returned. An eviction notice was subsequently served with a police officer present. When the tenants continued to remain in the trailer, the landlord returned with a police officer, who was in uniform and on duty, to warn the tenants that utilities would be cut off if they stayed. This police officer later returned alone, told the tenants that proper eviction procedures were being used, and advised them to leave. Subsequently, the officer accompanied the landlord when the utilities were disconnected, but the tenants continued to spend some nights in the trailer. On one occasion, three police officers visited the trailer in response to the landlord's call regarding a family disturbance, and one officer asked if the tenants were still looking for a new rental. The District Court dismissed the tenants' § 1983 complaint, finding that the police officers had taken no affirmative action in the eviction, but merely stood by to keep the peace. The tenants argued on appeal that they were denied Fourteenth Amendment rights when the landlords, with police aid, used self-help to evict them without proper notice and a prior judicial hearing. Recounting the various tests employed by the Supreme Court to determine the existence of state action, and finding a similarity between the present case and cases considering police involvement in the repossession of personal property, the court stated that at some point, as police involvement becomes increasingly important, repossession by private individuals assumes the character of state action. The court observed that the eviction had involved more than one incident of police consent to "stand by" in case of trouble. Rather, the police participation had given the tenants the impression that the landlord acted legally in cutting off the utilities. Furthermore, the court stated that the police officer had actively intervened in recommending that the tenants leave the trailer. The court found the record replete with evidence that the landlords deliberately cloaked themselves with the authority of the state in effecting the repossession. While a single request for police peace-keeping assistance might not make a landlord a "joint actor" with the state for § 1983 purposes, the court concluded, the landlords acted under color of state law where they repeatedly requested the aid of the police to evict the tenants, and where the police intervened at every step.

CUMULATIVE SUPPLEMENT

Cases:

Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Federal Constitution's commands; where such multiple violations are alleged, the courts will not identify as a preliminary matter the claim's "dominant" character, but will examine each constitutional provision in turn; thus, in an action under 42 U.S.C.A. § 1983 by the owner of a trailer home—which action alleges that the Constitution's Fourth Amendment was violated when the home was forcibly removed from a private mobile home park by employees of the park owner, while county sheriff's deputies, aware that the park owner did not have a legal eviction order, watched the removal, informed the trailer home owner that they were there to see that he did not

interfere, and refused to accept his complaint for criminal trespass—the owner's Fourth Amendment claim is not properly barred on the theory that the owner's claim is more akin to a challenge against deprivation of property without due process. Soldal v. Cook County, Ill., 506 U.S. 56, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992).In § 1983 action by tenants against their former landlord and county sheriff for allegedly evicting plaintiffs from their home without lawful process, forcing them to live on street and suffer loss of their children, sheriff was potentially liable in both official and personal capacity, and landlord was liable for acting in concert with sheriff under color of state law. Quinones v Durkis (1986, SD Fla) 638 F Supp 856.

Real estate broker’s salesperson’s evidence of participation in conspiracy, actively participated in the fraud, by marketing and selling a property that the purported seller did not own, by selling a property that the purported seller did not own,

39 amjur pof3d 309 real estate brokers misrepresentation or nondisclosure as to condition or value of realty.

Evid of conspiracy judge hearing a case despite having stock in bank,

127 Wright & Miller: Federal Prac. & Proc. s 1233, Statement of Particular Matters-Conspiracy (2014) HN: 4 (F.2d)

** 12 Construction and Application of "Intracorporate Conspiracy Doctrine" as Applied to Corporation and Its Employees--State Cases, 2 A.L.R.6th 387 (2005)

§   7. View that intracorporate conspiracy doctrine does not apply to corporate employees acting outside scope of employment

                                                [Cumulative Supplement]                                         While the intracorporate conspiracy doctrine by implication does not apply to corporate employees acting outside the scope of their employment, the courts in the following cases explicitly stated or recognized this principle.

Cal. Black v. Bank of America, 30 Cal. App. 4th 1, 35 Cal. Rptr. 2d 725 (1st Dist. 1994)

§   8. View that intracorporate conspiracy doctrine does not apply to corporate employees with independent personal stake in achieving object of conspiracy

                                                [Cumulative Supplement]                                         While the intracorporate conspiracy doctrine by implication does not apply to corporate employees with a personal stake, independent of that of the corporation, in achieving the object of the conspiracy, the courts in the following cases explicitly stated or recognized this principle.

Cal. Black v. Bank of America, 30 Cal. App. 4th 1, 35 Cal. Rptr. 2d 725 (1st Dist. 1994)

§   9. View that corporate officers and directors can conspire through direct participation

The courts in the following cases held or recognized that, unlike subordinate employees, corporate directors and officers who directly order, authorize or participate in the corporation's tortious conduct may be held liable as conspirators for violation of their own duties toward persons injured by the corporate tort. Cal. Doctors' Co. v. Superior Court, 49 Cal. 3d 39, 260 Cal. Rptr. 183, 775 P.2d 508 (1989)

Wyatt v. Union Mortgage Co., 24 Cal. 3d 773, 157 Cal. Rptr. 392, 598 P.2d 45 (1979)

Yoon v. Stern, 2003 WL 22792325 (Cal. App. 2d Dist. 2003) , unpublished/noncitable

PMC, Inc. v. Kadisha, 78 Cal. App. 4th 1368, 93 Cal. Rptr. 2d 663 (2d Dist. 2000) , as modified on denial of reh'g, (Apr. 7, 2000)

Golden v. Anderson, 256 Cal. App. 2d 714, 64 Cal. Rptr. 404 (2d Dist. 1967)

Price v. Hibbs, 225 Cal. App. 2d 209, 37 Cal. Rptr. 270 (5th Dist. 1964)

The court in Doctors' Co. v. Superior Court, 49 Cal. 3d 39, 260 Cal. Rptr. 183, 775 P.2d 508 (1989), held that the liability of corporate directors and officers who directly order, authorize or participate in the corporation's tortious conduct is outside the intracorporate conspiracy doctrine, and such persons may be held liable, as conspirators or otherwise, for violation of their own duties toward persons injured by the corporate tort. The intracorporate conspiracy doctrine, the court explained, precludes only claims against the principal's subordinate employees and against agents retained by the principal to act as independent contractors for conspiring to violate a duty peculiar to the principal.

III. APPLICATION OF INTRACORPORATE CONSPIRACY DOCTRINE TO CORPORATION AND ITS EMPLOYEES UNDER PARTICULAR FACTS

§   10. Where there is no claim of employees' acting outside scope of employment or for personal interest—Conspiracy claim supportable

                                                [Cumulative Supplement]                                         **Applying the intracorporate conspiracy doctrine in an action against a corporation and one or more of its employees, or against multiple employees of the same corporation, in which there was no claim that the corporate employees were acting outside the scope of their employment, or in furtherance of their own personal interests, the courts in the following cases held that, under the circumstances, a finding of a conspiracy by the defendants was supportable where two or more separate corporations were allegedly involved in the conspiracy.

§   11. Where there is no claim of employees' acting outside scope of employment or for personal interest—Conspiracy claim not established

                                                [Cumulative Supplement]                                         Applying the intracorporate conspiracy doctrine in an action against a corporation and one or more of its employees, or against multiple employees of the same corporation, in which there was no claim that the corporate employees were acting outside the scope of their employment, or in furtherance of their own personal interests, the courts in the following cases held that, under the circumstances, a finding of a conspiracy by the defendants was not supportable. See Wise v. Southern Pac. Co., 223 Cal. App. 2d 50, 35 Cal. Rptr. 652 (1st Dist. 1963) (disapproved of on other grounds by, Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 28 Cal. Rptr. 2d 475, 869 P.2d 454 (1994)), an action by a terminated railroad employee against the railroad, the railroad workers' union, and employees of the railroad and the union, in which the court held that, while a conspiracy between the railroad and the union was supportable, the employees could not take part in any conspiracy. The court noted that there was no allegation that the employees were acting in any capacity other than within the course and scope of their employment. Nor was there any allegation, the court continued, expressly stating or from which it could reasonably be inferred that the employees were acting for their individual advantage.

Comment

The disapproval of the Wise case by Applied Equipment was not on the matter of intracorporate conspiracy, but rather on the question whether a party to a contract can be liable for the tort of interference with a contractual relationship.

See also the following cases, in which there was no claim that the defendant corporate employees were acting outside the scope of their employment, or in furtherance of their own personal interests, and in which the courts held that, under the circumstances, the intracorporate conspiracy doctrine precluded the finding of a conspiracy, where— —an insurance adjusting firm, its employee, a law firm, and its employee allegedly conspired with insurance companies to deprive the plaintiff of benefits to which he was entitled under his fire insurance policies. Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566, 108 Cal. Rptr. 480, 510 P.2d 1032 (1973) .

—the owners of a group of businesses sued a bank and certain of its employees for civil conspiracy, fraud, and related claims when the bank failed to renew loans or grant new loans to the companies. Black v. Bank of America, 30 Cal. App. 4th 1, 35 Cal. Rptr. 2d 725 (1st Dist. 1994) .

—a laid-off employee claimed that his former employer, and certain of its officers, conspired to defraud him regarding his layoff. Kerr v. Rose, 216 Cal. App. 3d 1551, 265 Cal. Rptr. 597, 5 I.E.R. Cas. (BNA) 32, 118 Lab. Cas. (CCH) ¶ 56546 (6th Dist. 1990) .

—a bank and its employees allegedly conspired to require the plaintiff to return funds he had received when he cashed two checks that were subsequently dishonored. Lawrence v. Bank of America, 163 Cal. App. 3d 431, 209 Cal. Rptr. 541, 40 U.C.C. Rep. Serv. 201 (1st Dist. 1985) .

—a university and its faculty members allegedly conspired to deprive the plaintiff, a student at the university, of her education when the university's faculty went on strike to protest the Vietnam War. Zumbrun v. University of Southern California, 25 Cal. App. 3d 1, 101 Cal. Rptr. 499, 51 A.L.R.3d 991 (2d Dist. 1972) .

§   12. Where there is claim of employees' acting outside scope of employment or for personal interest—Conspiracy claim supportable

                                                [Cumulative Supplement]                                         Applying the intracorporate conspiracy doctrine in an action against a corporation and one or more of its employees, or against multiple employees of the same corporation, the courts in the following cases held supportable, under the circumstances, the plaintiff's claim that the corporate employees were acting outside the scope of their employment, or in furtherance of their own personal interests, so as to permit a finding of a conspiracy by the defendants.

CUMULATIVE SUPPLEMENT

Cases:

State correctional officers were not acting within scope of their employment when they allegedly forced inmate to fight fellow inmate, and threatened to beat inmate with baton and engage in joint cover-up if inmate did not finish fight with fellow inmate, and thus intracorporate conspiracy doctrine did not preclude inmate's § 1983 conspiracy claim against officers. 42 U.S.C.A. § 1983. Randle v. Alexander, 960 F. Supp. 2d 457 (S.D. N.Y. 2013).

Intra-enterprise doctrine did not bar former city firefighter's claim that her former co-workers and supervisors conspired to subject her to harassment because of her gender and her exercise of her First Amendment free speech rights, where firefighter alleged that she was subjected to verbal abuse, denied opportunity to respond to emergency calls, and terminated, and that alleged sexual harassment by deputy fire chief and taunting from co-worker fell outside scope of their employment. U.S.C.A. Const.Amends. 1, 14; 42 U.S.C.A. § 1985(3). Wyatt v. City of Barre, 885 F. Supp. 2d 682 (D. Vt. 2012).Mortgagors' allegations that two corporate employees used the corporate entity as their alter ego and as a conduit through which they defrauded the mortgagors, who had been facing mortgage foreclosure, were sufficient to meet the requirement, for pleading a claim of civil conspiracy between a corporation and its employees, of alleging that the employees were acting outside the scope of their authority or other than in the normal course of their corporate duties. Eicher v. Mid America Financial Inv. Corp., 275 Neb. 462, 748 N.W.2d 1 (2008).

**Developer's civil conspiracy claim against county council members was not precluded by intracorporate conspiracy doctrine that prevents a conspiracy between persons acting within the scope of their employment, where developer asserted civil conspiracy claim against council members in their individual capacities, rather than their official capacities as council members. Cricket Cove Ventures, LLC v. Gilland, 701 S.E.2d 39 (S.C. Ct. App. 2010).

Black v. Bank of America, 30 Cal.App.4th 1, 6, 35 Cal.Rptr.2d 725 (Cal.App. 1 Dist. Nov 15, 1994)

A corporation is, of course, a legal fiction that cannot act at all except through its employees and agents. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 25, 276 Cal.Rptr. 303, 801 P.2d 1054.) When a corporate employee acts in the course of his or her employment, on behalf of the corporation, there is no entity apart from the employee with whom the employee can conspire. FN3 “ ‘ “[I]t is basic in the law of conspiracy that you must have two persons or entities to have a conspiracy. A corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation....” ’ ” ( Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1564, 265 Cal.Rptr. 597, quoting Shasta Douglas Oil Co. v. Work (1963) 212 Cal.App.2d 618, 624, 28 Cal.Rptr. 190; **729Zumbrun v. University of Southern   California (1972) 25 Cal.App.3d 1, 12–13, 101 Cal.Rptr. 499.) To hold that a subordinate employee of a corporation can be liable for conspiring with the corporate principal would destroy what has heretofore been the settled rule that a corporation cannot conspire with itself.FN4 In the absence of a clear statement from the Supreme Court that this change in the law is intended, we will not so impair the agent's immunity rule.

FN3. **Appellants cannot rely upon the exception to the rule of agent's immunity allowing corporate employees to be held liable for conspiracy with their principal when they act for their own individual advantage and not solely on behalf of the corporation, or act beyond the scope of their authority. (See, e.g., Doctors' Co. v. Superior Court, supra, 49 Cal.3d at p. 47, 260 Cal.Rptr. 183, 775 P.2d 508; Wise v. Southern Pacific Co., supra, 223 Cal.App.2d at p. 72, 35 Cal.Rptr. 652; Pink Supply Corp. v. Hiebert, Inc. (8th Cir.1986) 788 F.2d 1313, 1317; Buschi v. Kirven (4th Cir.1985) 775 F.2d 1240, 1252.) In the verified first amended cross-complaint appellants filed in their previous case (case no. 857395) they alleged the individual defendants committed the assertedly wrongful acts “in the course and scope of their respective employment and agency for the Bank.” They cannot now, in a desperate attempt to state a claim for conspiracy, directly contradict these allegations and assert that the same officers were acting beyond the scope of their authority . ( Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877–878, 6 Cal.Rptr.2d 151 [plaintiff may not avoid demurrer by pleading facts that contradict facts pleaded in earlier actions].)

FN4. The individual defendants in this case were Bank employees who carried out but did not create Bank policies. Liability therefore cannot attach to these defendants under the rule that directors and officers of a corporation may become liable for the corporation's tortious conduct if they “directly ordered, authorized or participated in the tortious conduct.” ( Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 785, 157 Cal.Rptr. 392, 598 P.2d 45.)

Wise v. Southern Pac. Co., 223 Cal.App.2d 50, 72, 35 Cal.Rptr. 652, 49 Lab.Cas. P 51,051 (Cal.App. 1 Dist., Dec 06, 1963)

We hold that a cause of action for conspiracy will lie against the defendant Company.

2. Corporate agents as conspirators.[24] [25] Defendants assert that the defendants Hitke and Smith cannot be joined as conspirators. We think this point is well taken. Agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacities on behalf of the corporation and not as individuals for their individual advantage. ( Bliss v. Southern Pacific Company (1958) 212 Or. 634, 321 P.2d 324, 328–329; May v. Santa Fe Trail Transportation Co., supra, 370 P.2d 390, 395.) This rule derives from the principle that ordinarily corporate agents and employees acting for and on behalf of the corporation cannot be held liable for inducing a breach of the corporation's contract*73 since being in a confidential relationship to the corporation their action in this respect is privileged. The inducement of the breach to be actionable must be both wrongful and unprivileged. ( Imperial Ice Co. v. rossier (1941) 18 Cal.2d 33, 38, 112 P.2d 631; Lawless v. Brotherhood of Painters (1956) 143 Cal.App.2d 474, 478, 300 P.2d 159; May v. Santa Fe Trail Transportation Co., supra; 30 Am.Jur. 82; 26 A.L.R.2d 1270–1271.)

[26] In the instant case, it is alleged in the second count that at all times mentioned defendants Hitke and Smith were ‘employees, agents and representatives' of their respective corporations and ‘were acting within the course and scope of their said employment * * *.’ **There is no allegation that they were acting in any other capacity. **There is no allegation expressly stating or from which it can be reasonably inferred that they were acting for their individual advantage. The allegation that the acts of these defendants were motivated by malice and were intentional would not impose liability. (Imperial Ice Co. v. Rossier, supra.)

We hold that the second count fails to set forth facts sufficient to constitute a cause of action against defendants Hitke and Smith.

**666 3. Causal connection between conspiracy and discharge.[27] Defendants' contention that plaintiff has failed to allege a causal connection between the conspiracy and his discharge must succumb to a fair reading of the allegations of the second count already set forth by us. They allege a conspiracy for the purpose of securing plaintiff's discharge, the performance of certain acts pursuant thereto and finally that the defendant Company ‘in furtherance of said agreement did on March 2, 1960, without cause, wrongfully discharge plaintiff * * *.’ This is a plain and clear statement that the discharge resulted from the conspiracy.

And the court stated at p. 74,

5. Sufficiency of allegations of second count. Defendants' contention that the second count by realleging all but two paragraphs of the first count is ‘subject to all of the insufficiencies' of the first count must fail in view of the conclusions which we have reached as to the sufficiency of the first count.

[29] [30] We therefore turn to the question of the sufficiency of the conspiracy allegations themselves. To state such a cause of action, as already pointed out, the complaint must allege (1) the formation and operation of the conspiracy, (2) the wrongful act or acts done pursuant thereto and (3) the resulting damage. We have heretofore set forth and need not here repeat the allegations of the second count to the effect that prior to January 21, 1960, the defendant Company conspired with its codefendants to bring false charges against plaintiff and to deprive plaintiff of a fair hearing on such charges for the purpose of securing his discharge in violation of the union agreement. This is a sufficient statement of the first element of the cause of action. (See California Auto Court Ass'n v. Cohn, supra, 98 Cal.App.2d 145, 147, 149, 219 P.2d 511; Greenwood v. Mooradian (1955) 137 Cal.App.2d 532, 537–538, 290 P.2d 955.) The second count thereafter alleges that the defendant Association (for reasons already stated we omit reference to defendant Smith and other agents) pursuant to the agreement induced certain persons to give false statements and to appear and testify falsely about plaintiff; and that the defendant Company, pursuant to the agreement, made false charges against plaintiff, knowingly received such false statements and testimony, deprived plaintiff of a fair hearing and finally discharged him without cause. It is clear that these are wrongful acts which work an invasion of *75 plaintiff's right to continue in employment according to the provisions of the collective bargaining agreement. It is also clear that each participant in such acts is responsible as a joint tort feasor **667 whether or not it was a direct actor in respect to each of them. (See Mox, Incorporated v. Woods, supra, 202 Cal. 675, 677–678, 262 P. 302; Greenwood v. Mooradian, supra.) Thus, there is also a sufficient allegation of the second element of the cause of action. No question is raised as to the allegation of the third element of damage.

We conclude that the second count states facts sufficient to constitute a cause of action against defendants Company and Association.