Empathy List Archives

federal@lists.imla.org

A newbie with a question

Michael Meyer

Thu, Dec 10, 2015 12:04 AM

I am new to representing a municipality (although old to the litigation profession). My focus with the city is employment litigation, including employment-related litigation brought pursuant to 42 U.S.C. § 1983. I have a question:
Can a municipality be held liable for conspiring to violate 42 U.S.C. § 1983?
It is black letter law that a municipality cannot be held liable under a theory of vicarious liability and, since one of the results of a conspiracy claim is to impute the actions of co-conspirators to each member of the conspiracy, it would seem logical that you could not hold a municipality liable for conspiring to violate 42 U.S.C. § 1983, otherwise you would be holding the municipality vicariously liable for the acts of co-conspirators. Frankly, it does not seem logical that you could hold a supervisor liable in his individual capacity for conspiring to violate 42 U.S.C. § 1983 for the same reason.
I have not been able, however, to find any authority for the proposition that a municipality cannot be held liable for a conspiracy to violate 42 U.S.C. § 1983. Can anyone point me to the yellow-brick road?
M. Michael Meyer
Assistant City Attorney
City of Corpus Christi
P.O. Box 9277
Corpus Christi, TX 78469-9277
361.826.3362 (Direct)
281.635.5551 (Cell)
361.826.3239 (Fax)
MichaelM4@cctexas.com mailto:MichaelM4@cctexas.com
NOTE: THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address. Thank you.
In compliance with regulations issued by the Internal Revenue Service, we inform you that any federal tax advice contained in this communication including any attachments was not written to be used and may not be used by any person to avoid any penalties under the Internal Revenue Code.

I am new to representing a municipality (although old to the litigation profession). My focus with the city is employment litigation, including employment-related litigation brought pursuant to 42 U.S.C. § 1983. I have a question: Can a municipality be held liable for conspiring to violate 42 U.S.C. § 1983? It is black letter law that a municipality cannot be held liable under a theory of vicarious liability and, since one of the results of a conspiracy claim is to impute the actions of co-conspirators to each member of the conspiracy, it would seem logical that you could not hold a municipality liable for conspiring to violate 42 U.S.C. § 1983, otherwise you would be holding the municipality vicariously liable for the acts of co-conspirators. Frankly, it does not seem logical that you could hold a supervisor liable in his individual capacity for conspiring to violate 42 U.S.C. § 1983 for the same reason. I have not been able, however, to find any authority for the proposition that a municipality cannot be held liable for a conspiracy to violate 42 U.S.C. § 1983. Can anyone point me to the yellow-brick road? M. Michael Meyer Assistant City Attorney City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469-9277 361.826.3362 (Direct) 281.635.5551 (Cell) 361.826.3239 (Fax) MichaelM4@cctexas.com<mailto:MichaelM4@cctexas.com> NOTE: THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address. Thank you. In compliance with regulations issued by the Internal Revenue Service, we inform you that any federal tax advice contained in this communication including any attachments was not written to be used and may not be used by any person to avoid any penalties under the Internal Revenue Code.

Schuette, Jason

Thu, Dec 10, 2015 12:20 AM

The district court concluded that Hilliard had failed to show that the conspiracy involved two or more persons. That conclusion is sound.

It is a long-standing rule in this circuit that 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." In this case, we apply that rule to the School Board.

In Hull v. Cuyahoga Valley Joint Vocational Sch. Dist., the U.S. Court of Appeals for the Sixth Circuit did exactly that. In Hull, the court applied our holding in Nelson to a § 1985(3) claim alleging a similar conspiracy involving the Cuyahoga School Board. The plaintiff in Hull alleged that the Cuyahoga School Superintendent conspired with the executive director of the district and a school administrator. All were employees of the School Board. The court held that, as all were members of the same collective entity, the conspiracy did not involve two or more people. Three district court cases in this Circuit have reached the same conclusion. We do so as well.

We do not overlook the ways in which a school board is unique and distinct from a corporation. A corporation maintains a unified face in the eyes of the law. It is in that vein that we say that a corporation is a person. A school board, however, is a collection of individuals, some fill elected positions, some are salaried workers. Still, that distinction is not dispositive. All are employees of the school board. We follow the reasoning of the other courts on this question and hold that a school board and its employees constitute a single legal entity which is incapable of conspiring with itself for the purposes of § 1985(3).

It might be a different matter where a municipality's policymaking officials conspire with persons or entities not a part of the municipality, but I have successfully used the intracorporate conspiracy doctrine in several Rule 12(b)(6) and summary judgment motions to obtain dismissal of § 1983 and § 1985 conspiracy claims against the City of Dallas and its employees. "Your mileage may vary."
Good luck!
J. G. Schuette
Executive Assistant City Attorney
214.670.1236 (direct)

From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Michael Meyer
Sent: Wednesday, December 09, 2015 6:04 PM
To: 'federal@lists.imla.org'
Subject: [Federal] A newbie with a question

Brother Meyer - Take a look at Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994). Excerpt follows: Hilliard also alleges a conspiracy between Ferguson and the Board to deprive him of his civil rights. To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. In so doing, the plaintiff must show that the conspiracy was motivated by a class-based animus. The district court concluded that Hilliard had failed to show that the conspiracy involved two or more persons. That conclusion is sound. It is a long-standing rule in this circuit that 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." In this case, we apply that rule to the School Board. In Hull v. Cuyahoga Valley Joint Vocational Sch. Dist., the U.S. Court of Appeals for the Sixth Circuit did exactly that. In Hull, the court applied our holding in Nelson to a § 1985(3) claim alleging a similar conspiracy involving the Cuyahoga School Board. The plaintiff in Hull alleged that the Cuyahoga School Superintendent conspired with the executive director of the district and a school administrator. All were employees of the School Board. The court held that, as all were members of the same collective entity, the conspiracy did not involve two or more people. Three district court cases in this Circuit have reached the same conclusion. We do so as well. We do not overlook the ways in which a school board is unique and distinct from a corporation. A corporation maintains a unified face in the eyes of the law. It is in that vein that we say that a corporation is a person. A school board, however, is a collection of individuals, some fill elected positions, some are salaried workers. Still, that distinction is not dispositive. All are employees of the school board. We follow the reasoning of the other courts on this question and hold that a school board and its employees constitute a single legal entity which is incapable of conspiring with itself for the purposes of § 1985(3). It might be a different matter where a municipality's policymaking officials conspire with persons or entities not a part of the municipality, but I have successfully used the intracorporate conspiracy doctrine in several Rule 12(b)(6) and summary judgment motions to obtain dismissal of § 1983 and § 1985 conspiracy claims against the City of Dallas and its employees. "Your mileage may vary." Good luck! J. G. Schuette Executive Assistant City Attorney 214.670.1236 (direct) From: Federal [mailto:federal-bounces@lists.imla.org] On Behalf Of Michael Meyer Sent: Wednesday, December 09, 2015 6:04 PM To: 'federal@lists.imla.org' Subject: [Federal] A newbie with a question I am new to representing a municipality (although old to the litigation profession). My focus with the city is employment litigation, including employment-related litigation brought pursuant to 42 U.S.C. § 1983. I have a question: Can a municipality be held liable for conspiring to violate 42 U.S.C. § 1983? It is black letter law that a municipality cannot be held liable under a theory of vicarious liability and, since one of the results of a conspiracy claim is to impute the actions of co-conspirators to each member of the conspiracy, it would seem logical that you could not hold a municipality liable for conspiring to violate 42 U.S.C. § 1983, otherwise you would be holding the municipality vicariously liable for the acts of co-conspirators. Frankly, it does not seem logical that you could hold a supervisor liable in his individual capacity for conspiring to violate 42 U.S.C. § 1983 for the same reason. I have not been able, however, to find any authority for the proposition that a municipality cannot be held liable for a conspiracy to violate 42 U.S.C. § 1983. Can anyone point me to the yellow-brick road? M. Michael Meyer Assistant City Attorney City of Corpus Christi P.O. Box 9277 Corpus Christi, TX 78469-9277 361.826.3362 (Direct) 281.635.5551 (Cell) 361.826.3239 (Fax) MichaelM4@cctexas.com<mailto:MichaelM4@cctexas.com> NOTE: THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address. Thank you. In compliance with regulations issued by the Internal Revenue Service, we inform you that any federal tax advice contained in this communication including any attachments was not written to be used and may not be used by any person to avoid any penalties under the Internal Revenue Code.