L.L. Nelson Enterprises, Inc., et al v. County of St. Louis, Missouri, et al

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, STEVEN M. COLLOTON and RAYMOND W. GRUENDER. Steven M. Colloton, Authoring Judge (PUBLISHED) [3888154] [10-3467]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-3467
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L.L. Nelson Enterprises, Inc.; Laura L. *
Nelson-Smith,
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Plaintiffs/Appellants,
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v.
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*
County of St. Louis, Missouri,
*
*
Defendant/Appellee,
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*
Curley Hines; Marcus Lipe,
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Defendants,
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Richard Robinson,
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Defendant/Appellee,
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David Rodriguez,
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Defendant,
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Gene Overall; James D. Buckles;
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Laurie Main; Independent Eviction
*
Agency, LLC; James Siebels; Paul Fox, *
*
Defendants/Appellees.
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Appellate Case: 10-3467

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Appeal from the United States
District Court for the
Eastern District of Missouri.

Date Filed: 03/09/2012 Entry ID: 3888154

___________
Submitted: September 22, 2011
Filed: March 9, 2012
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Before RILEY, Chief Judge, COLLOTON, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
L.L. Nelson Enterprises, Inc., doing business as Landlords Moving Service,
Inc., and its principal Laura L. Nelson-Smith (collectively, “Landlords Moving”)
brought civil rights claims under 42 U.S.C. §§ 1983 and 1985 against the County of
St. Louis, several employees of the County, and a competitor firm Independent
Eviction Agency, LLC, and its principal, James Siebels (collectively, “IEA”). The
amended complaint alleged violations of constitutional rights under the First, Fifth,
and Fourteenth Amendments and sought damages and declaratory and injunctive
relief. The district court dismissed the plaintiffs’ amended complaint for failure to
state a claim against all but three defendants, and entered a final judgment pursuant
to Federal Rule of Civil Procedure 54(b).1 Landlords Moving appeals. We reverse
the dismissal of Landlords Moving’s First Amendment retaliation claim against
defendant Laurie Main, affirm the dismissal of all other claims, and remand for
further proceedings.

1

The district court dismissed without prejudice the claims against defendant
David Rodriguez for lack of timely service. The court observed that defendant
Marcus Lipe had appeared through counsel and that defendant Curley Hines was in
default, but concluded that a motion for entry of default against both defendants may
be futile in light of the court’s order dismissing the claims against the other
defendants. On this basis, the court found no just reason to delay entry of final
judgment as to the defendants who moved successfully to dismiss the amended
complaint.
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I.
The amended complaint alleges the following facts. The St. Louis County
Sheriff’s Office has for decades permitted real estate owners to hire private moving
companies like Landlords Moving and IEA to remove their tenants’ personal property
during the execution of eviction orders. For a number of years, deputy sheriffs Laurie
Main, Hines, Lipe, Rodriguez, and Richard Robinson allegedly executed an illegal
kickback scheme in which they funneled eviction business to private moving
companies in exchange for cash payments. Landlords Moving initially participated
in this “illegal payments scheme,” but began to express reluctance in 2003 and then
withdrew from participation by mid-2004.
The scheme’s participants implemented a written schedule in February 2004
for the execution of eviction orders. This schedule singled out Landlords Moving and
limited the days on which it could receive eviction business. Landlords Moving
complained about the schedule to Gene Overall, who was then the sheriff of St. Louis
County, Paul Fox, the County’s director of judicial administration, and others at the
sheriff’s office. After Landlords Moving exchanged a number of written and oral
communications with the sheriff’s office, Main announced to most of the deputy
sheriffs named in the amended complaint that she would put Landlords Moving out
of business.
With the cooperation of both the deputies and the entire sheriff’s office, Main
allegedly implemented procedures and practices that were designed to disadvantage
Landlords Moving. These new practices, it is alleged, eventually shifted a substantial
portion of Landlords Moving’s business to IEA and other competitors. According to
the amended complaint, Fox, Overall, and later Sheriff James Buckles either

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participated in, knew of, or should have known of this conspiracy, yet took no action
to halt it.
In the second half of 2004, Landlords Moving contacted the United States
Attorney’s Office for the Eastern District of Missouri and reported the illegal
kickback scheme and alleged retaliatory practices of the sheriff’s office. Landlords
Moving cooperated with federal prosecutors in the subsequent investigation and
prosecution of various officials, including Hines, Lipe, Robinson, and Rodriguez.
Laura Nelson-Smith also testified for the prosecution in federal court, and all of the
defendants have known for some time of Landlord Moving’s role in the investigation
and prosecutions. The amended complaint alleged that in retaliation, Main and others
in the sheriff’s office “have continued and even increased the extent of their
conspiracy,” taking such measures as forcing Landlords Moving’s clients to “wait
inordinately” for enforcement of their eviction orders.
Landlords Moving filed a four-count amended complaint against each of the
eleven defendants. The first two counts arise under 42 U.S.C. § 1983 and allege the
deprivation of constitutional rights. As relevant here, Count I alleges that the illegal
kickback scheme violated Landlord Moving’s rights under the Due Process Clause,
Equal Protection Clause, and the Takings Clause of the Constitution, while Count II
avers that retaliation against Landlords Moving for protesting the kickback scheme
infringed its rights to freedom of speech and to petition for the redress of grievances
under the First and Fourteenth Amendments. Count III is a claim for damages under
42 U.S.C. § 1985, alleging that the defendants conspired to retaliate against
Landlords Moving because of Laura Nelson-Smith’s testimony in federal court. In
the fourth count, Landlords Moving seeks declaratory and injunctive relief “to define
reasonable commercial and noncommercial public expectations with respect to tasks
to be performed by the Sheriff’s offices in connection with eviction executions,” in
order to “effect a reasonably complete redress of plaintiffs’ injuries.”

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The County, Overall, Buckles, Fox, Main, Robinson, and IEA moved to
dismiss Landlords Moving’s amended complaint. The district court granted the
motions, concluding that the amended complaint did not plausibly allege either the
deprivation of a constitutional right or that the defendants deterred Nelson-Smith
from testifying. The district court entered final judgment as to these defendants
pursuant to Rule 54(b), and Landlords Moving appeals.
II.
We review de novo a district court’s decision to grant a motion to dismiss,
accepting the allegations of the amended complaint as true. See Schmidt v. Des
Moines Pub. Schs., 655 F.3d 811, 816 (8th Cir. 2011). To survive a motion to
dismiss, a complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial
plausibility, in turn, requires that the claim plead facts from which a court may “draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). At the same time, “[s]pecific facts
are not necessary; the statement need only give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (internal quotation omitted); see Swierkiewicz v. Sorema N.A., 534 U.S.
506, 512 (2002).
The essential elements of a constitutional claim under § 1983 are (1) that the
defendant acted under color of state law, and (2) that the alleged wrongful conduct
deprived the plaintiff of a constitutionally protected federal right. Schmidt v. City of
Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). The district court assumed the first
element was satisfied, see Monroe v. Pape, 365 U.S. 167 (1961), but determined that
the amended complaint alleged no constitutional violation. Whether Landlords

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Moving adequately alleged the deprivation of a constitutional right is the principal
disputed question on appeal.
A.
We first consider the several allegations made under Count I of the amended
complaint. Landlords Moving relies in part on the “doctrine of unconstitutional
conditions” to describe its claim under Count I. This doctrine, as a general rule,
provides that although a State may have the power to deny a privilege altogether, it
may not condition the grant of such a privilege on a private party’s surrender of a
constitutional right. Decisions along this line date to Frost & Frost Trucking Co. v.
Railroad Commission, 271 U.S. 583 (1926), where the Supreme Court held that a
State could not condition a private carrier’s use of highways on issuance of a
certificate and submission to regulatory control of the State, because such regulation
violated the due process rights of the private carrier under the Lochner-era
jurisprudence then prevailing. Id. at 593-94. More recently, the Supreme Court
applied the doctrine in the context of the Takings Clause, explaining that “the
government may not require a person to give up a constitutional right—here the right
to receive just compensation when property is taken for public use—in exchange for
a discretionary benefit conferred by the government where the benefit has little or no
relationship to the property.” Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).
Landlords Moving’s favored example is Blackburn v. Snow, 771 F.2d 556 (1st Cir.
1985), where the court held that a State could not condition a citizen’s privilege to
visit her brother at a county jail on submission to an unreasonable strip search that
infringed upon the visitor’s rights under the Fourth Amendment. Id. at 568.
Courts and commentators have wrestled with the parameters of the
unconstitutional conditions doctrine, see generally Kathleen M. Sullivan,
Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989), and there is no

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precedent that directly addresses a scenario like this one. Landlords Moving suggests
that the closest analogue is Roma Construction Co. v. aRusso, 96 F.3d 566 (1st Cir.
1996). The district court in that case allowed that “[p]erhaps a bribery demand by
municipal officials in order to facilitate zoning, permits, and the like, deprives a
citizen of constitutional due process rights,” but ruled that once the citizen voluntarily
paid the bribe, he waived any future right to sue under § 1983. 906 F. Supp. 78, 84
(D.R.I. 1995). The court of appeals reversed, concluding that a reasonable jury could
infer that the plaintiffs were “innocent victims of a criminal enterprise,” because their
payments were made pursuant to “coercive extortion” and did not constitute
“voluntary payment of bribes.” 96 F.3d at 574, 576. The court remanded for further
proceedings without discussing what specific constitutional right the municipal
officials might have violated.
Landlords Moving asserts summarily that a bribery demand by public officials
results in a constitutional due process violation when the bribe is paid, because the
payment is “contrary to law.” It also claims that the demand for bribery payments
amounted to a taking of its property in violation of the Takings Clause of the Fifth
Amendment, as incorporated through the Fourteenth. Whatever the merits of a
possible due process claim by an innocent victim of extortion, cf. Hudson v. Palmer,
468 U.S. 517, 533 (1984), or a Takings Clause claim based on an obligation imposed
by the State to pay money, cf. W. Va. CWP Fund v. Stacy, No. 11-1020, 2011 WL
6062116, at *6 (4th Cir. Dec. 21, 2011), we do not think Landlords Moving can
assume the mantra of the “innocent victim” described in Roma Construction for the
period during which Landlords Moving was paying bribes. The amended complaint
alleges that county officials referred business only to those moving companies that
made “illegal cash payments” and were “willing and able” to satisfy the demands for
“unlawful payments.” Am. Compl. ¶¶ 20, 24 (emphases added).

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Allegations in a complaint are binding admissions, Jackson v. Marion Cnty.,
66 F.3d 151, 153 (7th Cir. 1995), and a party who “willing[ly]” makes payments to
the State cannot mount a successful claim based on the Due Process Clause or the
Takings Clause. When a person voluntarily surrenders liberty or property, the State
has not deprived the person of a constitutionally-protected interest. Zinermon v.
Burch, 494 U.S. 113, 117 n.3 (1990) (“If only those patients who are competent to
consent to admission are allowed to sign themselves in as ‘voluntary’ patients, then
they would not be deprived of any liberty interest at all.”); Lee v. Pine Bluff Sch.
Dist., 472 F.3d 1026, 1030 (8th Cir. 2007). Similarly, a voluntary transfer of money
to the State in exchange for referrals of business does not amount to a taking by the
State. See Yee v. City of Escondido, 503 U.S. 519, 527 (1992) (stating that “the
Takings Clause requires compensation if the government authorizes a compelled
physical invasion of property”) (emphasis added); Meriden Trust & Safe Deposit Co.
v. FDIC, 62 F.3d 449, 455 (2d Cir. 1995); McCarthy v. City of Cleveland, 626 F.3d
280, 287 (6th Cir. 2010) (McKeague, J., concurring). There is also authority holding
that a party cannot obtain redress under § 1983 for damages caused by its own illegal
acts in pari delicto with another, see Dudley v. Stoneman, 653 F.2d 125, 126 (4th Cir.
1981) (per curiam), but we need not address how that defense applies in a § 1983
action, because the claims as pleaded in Count I simply fail on the merits. Cf. Pinter
v. Dahl, 486 U.S. 622, 633-35 (1988) (describing the standard for determining when
the in pari delicto defense applies to a private action under any of the federal
securities laws).
We further conclude that Landlords Moving’s amended complaint does not
state a claim that the making of illegal cash payments in response to demands of
county officials constituted a violation of the Equal Protection Clause. According to
the amended complaint, when Landlords Moving made illegal cash payments in
exchange for the referral of business, it was treated the same as all other private
moving companies. As the amended complaint alleges no differential treatment of

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similarly situated persons during the period when Landlords Moving made unlawful
payments, it fails to state an equal protection claim. See Koscielski v. City of
Minneapolis, 435 F.3d 898, 901 (8th Cir. 2006).
B.
Landlords Moving next appeals the dismissal of its First Amendment claim
under Count II of the amended complaint. Landlords Moving contends that the
defendants violated the company’s rights under the First Amendment to petition for
redress of grievances and to freedom of speech by retaliating against Landlords
Moving for complaints that it made to the sheriff and the director of judicial
administration. We conclude that Landlords Moving adequately pleaded a First
Amendment claim against defendant Main, and that the district court’s order of
dismissal should be reversed in part.
The amended complaint alleged that in 2003 and the first half of 2004,
Landlords Moving “demonstrated reluctance” to continue its participation in the
illegal payments scheme. In February and March 2004, it is alleged, the sheriff’s
office implemented a schedule for the execution of eviction orders that limited the
days on which eviction orders for clients of Landlords Moving could be executed.
Landlords Moving complained to Sheriff Overall and Director of Judicial
Administration Fox, questioned the motivation for the schedule, and asserted that the
schedule discriminated against Landlords Moving without justification.
Landlords Moving asserts that after a number of communications to the
sheriff’s office, Main announced to most of the other deputy sheriffs named in the
amended complaint that “she was going to put Landlords Moving out of business,”
and that she implemented two particular procedures that were designed to
disadvantage Landlords Moving. The first was “the maintenance of a deliberately

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and invidiously discriminatory list of available private moving companies” that
placed Landlords Moving at the bottom and IEA at the top. The amended complaint
alleges that when real property owners with eviction orders asked Main to refer them
to a private moving company that could assist with the eviction, she read the names
on her referral list from top to bottom, “intending to enable and to encourage” the
property owner to choose IEA or any private mover other than Landlords Moving.
The second practice was to forewarn those tenants who resided in property owned by
clients of Landlords Moving that the tenants were subject to eviction, and to
encourage them to vacate the premises immediately before the date of eviction. The
alleged purpose of this practice was to disadvantage Landlords Moving’s business.
The amended complaint asserts that these procedures, “in combination with all other
discriminatory and retaliatory practices and procedures,” shifted a substantial portion
of Landlords Moving’s longtime clientele to IEA or other movers, and inhibited
substantially the growth of Landlords Moving’s business.
To establish a § 1983 claim for retaliation in violation of the First Amendment,
a plaintiff must allege (1) that it engaged in a protected activity, (2) that the
defendants responded with adverse action that would “chill a person of ordinary
firmness” from continuing in the activity, and (3) that “the adverse action was
motivated at least in part by the exercise of the protected activity.” Revels v. Vincenz,
382 F.3d 870, 876 (8th Cir. 2004). We think that Landlords Moving pleaded these
elements adequately to survive a motion to dismiss on its claim against Main.
Landlords Moving alleged that it engaged in protected activity by petitioning
the sheriff and director of judicial administration, and by expressing its dissatisfaction
with the schedule imposed by the sheriff’s office. The defendants counter that
Landlords Moving’s complaints concerned only its private interests and did not
involve a matter of “public concern,” such that the complaints were not protected
activity. When the government takes adverse action against a public employee, an

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independent contractor, or another actor with whom the government has a comparable
pre-existing commercial relationship, the First Amendment is implicated only when
the speech or petition that motivated the retaliation involves matters of public
concern. See Connick v. Myers, 461 U.S. 138, 142 (1983); Bd. of Cnty. Comm’rs v.
Umbehr, 518 U.S. 668, 678 (1996); O’Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712, 721-22 (1996). Otherwise, “a federal court is not the appropriate forum
in which to review the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee’s behavior,” Connick, 461 U.S. at 147, or a
comparable decision made with respect to a contractor. Umbehr, 518 U.S. at 677-78.
The defendants argue that the same standard should apply to Landlords Moving.
In considering whether the “public concern test” applies to a retaliation claim,
this court has distinguished between the government’s role as employer or contractor
and the government’s role as sovereign. See Heritage Constructors, Inc. v. City of
Greenwood, 545 F.3d 599, 602-03 (8th Cir. 2008). Where the government has an
employment relationship or a similar contractual relationship with a complainant,
then the complainant’s speech is protected only when it addresses a matter of public
concern. See Smith v. Cleburne Cnty. Hosp., 870 F.2d 1375, 1381 (8th Cir. 1989).
But where the complainant’s relationship with the government is not analogous to
that of employee-employer, and the government acts as sovereign rather than as an
employer or contractor in taking the alleged retaliatory action, then the complainant’s
First Amendment claim is not limited by the public concern test. See Heritage, 545
F.3d at 602; see also Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 586-88 (6th
Cir. 2008).
The amended complaint supports a plausible inference that Landlords Moving
was not a public employee or contractor and did not have an analogous relationship
that would call for limiting protection under the First Amendment to speech on
matters of public concern. The amended complaint alleges that the County did not

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employ personnel to remove property from buildings subject to eviction orders, but
rather permitted property owners “to hire their own private moving contractors” to
assist in executing eviction orders. Count II alleges, in part, that the County
deliberately generated “scheduling conflicts” to interfere with Landlords Moving’s
ability to serve its private clients. At the pleadings stage, therefore, we conclude that
Landlords Moving’s complaints to the sheriff and director of judicial administration
were protected activity. See Blackburn v. City of Marshall, 42 F.3d 925, 932-35 (5th
Cir. 1995) (refusing to apply the “public concern” requirement to a towing operator
who alleged that the city retaliated against his complaints about city bidding
procedures by revoking his police radio frequency privileges, thereby thwarting his
participation in a towing rotation system). We need not address at this juncture
whether Landlords Moving’s complaints may have involved both its private interests
and a matter of public concern, assuming the latter were required. See Belk v. City
of Eldon, 228 F.3d 872, 879-80 (8th Cir. 2000).
The district court thought Landlords Moving did not plead adverse action
sufficient to chill a person of ordinary firmness, but we respectfully disagree. The
amended complaint alleges that Main’s actions, in retaliation for Landlords Moving’s
complaints to Overall and Fox, helped to shift a “substantial portion” of Landlords
Moving’s business to other movers, and to “inhibit substantially” the growth of
Landlords Moving’s business, and caused “substantial” economic injury. This court
has said that while a certain level of “embarrassment, humiliation and emotional
distress” would not chill a person of ordinary firmness, Naucke v. City of Park Hills,
284 F.3d 923, 928 (8th Cir. 2002), even the selective issuance of parking tickets to
a complaining citizen could support a finding of unlawful retaliation, due to the
“concrete consequences” of such misdemeanor charges. Garcia v. City of Trenton,
348 F.3d 726, 729 (8th Cir. 2003). We do not think it would “trivialize the First
Amendment,” Naucke, 284 F.3d at 928, to hold that a substantial threat to one’s
business is enough to deter a person of ordinary firmness from speaking or petitioning

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the government. Landlords Moving’s allegations are thus sufficient to survive the
pleadings stage on this element.2
As for the final element of a First Amendment retaliation claim, Landlords
Moving adequately alleges that Main’s adverse actions against the company were
motivated by Landlords Moving’s complaints to Overall and Fox about the new
schedule. The amended complaint alleges that “after a number of written and oral
communications regarding [the new eviction schedule] from plaintiffs and their legal
counsel to the Sheriff’s office, Laurie Main announced to most of the [deputy sheriffs
named as defendants] that she was going to put Landlords Moving out of business.”
The amended complaint further asserts that “[w]ith the cooperation thereafter of the
deputies and the entire Sheriff’s office, Main went on openly to implement particular
procedures or practices deliberately and, from an objective point of view within the
office, obviously designed to disadvantage Landlords Moving severely.” Having
alleged a chronology to support its circumstantial claim of retaliatory action,
Landlords Moving concludes that Main adopted the discriminatory measures “in
retaliation specifically against the Landlords Moving complaints about and criticism
of the Imposed Schedule.” At the pleadings stage, these allegations support a
plausible inference that Main knew of Landlords Moving’s complaints and acted with
retaliatory motive. We therefore conclude that Landlords Moving has stated a claim
against Main for violation of its First Amendment rights. Whether the allegations can
be proved, of course, is a matter for further proceedings.

2

The district court also thought the retaliation claim failed because the alleged
retaliation took place before Landlords Moving’s cooperation with authorities. This
may or may not be true with respect to Landlords Moving’s cooperation with the
United States Attorney’s Office, but the amended complaint alleges retaliation for
Landlords Moving’s complaints to the sheriff and director of judicial administration,
which preceded the alleged retaliatory acts.
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We do not believe, however, that the amended complaint adequately alleges a
First Amendment claim against the other defendants. Deputy Sheriff Robinson is not
mentioned by name in Count II, and the general references to other deputies are
insufficient to charge him with the alleged constitutional violations. The amended
complaint alleges only that Main announced to other deputies that she was going to
put Landlords Moving out of business, that she “directed” other staff members to
follow one disputed procedure, that she “took steps to confirm” that other deputies
followed the second procedure, and that she acted with “the cooperation” of “the
deputies.” The amended complaint does not allege that Robinson was one of the
deputies to whom Main made her announcement, alleging only that “most” deputies
named in the amended complaint heard the statement. There is no allegation that
Robinson ever read a list of private moving companies to a property owner, or that
he selectively encouraged occupants to vacate premises when Landlords Moving was
hired to remove remaining property. Nor is there an allegation that Robinson acted
with retaliatory motive in conducting any such activity. The district court properly
dismissed the claims against Robinson.
Supervisors like Overall, Buckles, and Fox cannot be held vicariously liable
under § 1983 for the actions of a subordinate. See Iqbal, 129 S. Ct. at 1948. To state
a claim, the plaintiff must plead that the supervising official, through his own
individual actions, has violated the Constitution. Id. Where, as here, the alleged
constitutional violation requires proof of an impermissible motive, the amended
complaint must allege adequately that the defendant acted with such impermissible
purpose, not merely that he knew of a subordinate’s motive. Id.
The amended complaint in this case does not adequately allege that Overall,
Buckles, or Fox took adverse action against Landlords Moving with retaliatory
motive. Landlords Moving alleges that each of the three supervisors “either
participated himself in the conspiracy and retaliation against [Landlords Moving],

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knew of the conspiracy and retaliation but failed to take action to halt it, or should
have known of the conspiracy and retaliation but deliberately or willfully failed to
discover it and halt it.” Am. Compl. ¶ 49. Like the complaint in Iqbal, which alleged
that supervisory officials “knew of, condoned, and willfully and maliciously agreed
to” subject the plaintiff to harsh conditions for an illegitimate reason, these
asseverations against Overall, Buckles, and Fox are conclusory, and they are not
entitled to a presumption of truth. 129 S. Ct. at 1951. The amended complaint asserts
that Main took her actions “openly,” and that they were “obviously designed to
disadvantage Landlords Moving,” but this probably does not suffice to allege even
that the actions were known to the particular supervisory officials named as
defendants, see Wilson v. City of N. Little Rock, 801 F.2d 316, 323 (8th Cir. 1986),
and it assuredly does not plead adequately that the supervisors acted with
impermissible purpose as required by Iqbal. The amended complaint does allege that
Fox “was informed on many occasions throughout 2004” about “the irregularities
within the Sheriff’s office,” and then deliberately failed to take corrective action.
Am. Compl. ¶ 53. But even assuming the alleged retaliation is among the
“irregularities,” this assertion is insufficient to allege that Fox acted with a retaliatory
motive. We therefore conclude that the district court properly dismissed the claims
against Overall, Buckles, and Fox.
The amended complaint also fails to state a claim against the County. A
municipality cannot be held liable under § 1983 solely because it employs a
tortfeasor. A municipality can be liable only if a municipal “policy or custom” caused
a plaintiff to be deprived of a federal right. L.A. Cnty. v. Humphries, 131 S. Ct. 447,
450 (2010); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Landlords
Moving contends that the “entrenched bribery scheme” run from the sheriff’s office
constituted a “custom or usage” sufficient to establish municipal liability.

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As we have concluded that the district court properly dismissed Count I of the
amended complaint, we deal here only with the question whether the County can be
held liable for the alleged retaliatory actions taken by Deputy Main after Landlords
Moving complained to the sheriff and director of judicial administration about the
schedule implemented in February and March 2004. The amended complaint does
not allege that Main acted pursuant to municipal policy or custom in retaliating
against Landlords Moving. It asserts that after Landlords Moving complained to
Overall and Fox, Main announced that she was going to put Landlords Moving out
of business, that she “devised and implemented” new procedures and practices, that
she directed other staff members to follow procedures she instituted, and that she took
steps to ensure that other deputies carried out the new procedures. Count II of the
amended complaint does not allege that the County had a widespread custom of
retaliating against those who complained to the sheriff or director of judicial
administration. The district court thus properly dismissed the claims against the
County.
Finally, the amended complaint fails to allege adequately that IEA participated
in the retaliation. Because IEA is a private actor, to prove a § 1983 claim against it,
Landlords Moving must establish that IEA reached a mutual understanding with
public officials that it would participate in retaliating against Landlords Moving. See
Dossett v. First State Bank, 399 F.3d 940, 951 (8th Cir. 2005). With respect to the
First Amendment retaliation claim, the pleadings allege only that IEA was placed “on
the top” of the discriminatory mover referral list, that Main encouraged property
owners to select IEA for executing evictions, and that IEA benefitted from these
practices. It is true that Count II of the amended complaint incorporates allegations
made in Count I, but the conspiracy alleged in Count I differs materially from the
conspiracy outlined in Count II. The amended complaint asserts in Count I that IEA
conspired with the other defendants to employ “various manipulatory devices within
the Sheriff’s office, including but not limited to manipulation of a deputies work

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schedule that deliberately disadvantaged Landlords Moving.” Am. Compl. ¶ 26.
This alleged conspiracy began in 2003 and was motivated by Landlords Moving’s
“demonstrated reluctance” to continue paying bribes and “eventual withdrawal” from
participation in the scheme. Id. ¶ 25. Count II, by contrast, alleges that the
defendants retaliated against Landlords Moving at a later date, in 2004, because of
complaints that Landlords Moving made to Overall and Fox in 2004 about the work
schedule described in Count I. Count II contains no allegation that IEA engaged in
retaliatory conduct based on the complaints to Overall and Fox, let alone that IEA
reached a meeting of the minds with Main to conspire against Landlords Moving by
retaliating for these complaints. The incorporation by reference of allegations in
Count I that IEA conspired with others in 2003 to manipulate the work schedule does
not suffice to plead that IEA participated in the alleged retaliation in 2004. We
therefore conclude that the claim against IEA was properly dismissed.
C.
Count III of Landlords Moving’s amended complaint asserts a claim under 42
U.S.C. § 1985 based on alleged intimidation of witnesses. The claim arises from
Laura Nelson-Smith’s role in aiding the federal investigation and prosecution of
deputy sheriffs who participated in the kickback scheme. Landlords Moving alleges
that “in retaliation against the plaintiffs for having aided the discovery and
prosecution of the illegal scheme and the scheme’s principals and for having testified
in federal court against them,” those principals “have continued and even increased
the extent of their conspiracy and campaign with all the defendants to injure
Landlords Moving.” Am. Compl. ¶ 60. On appeal, Landlords Moving clarifies that
its claim is grounded in § 1985(2).

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Section 1985(2) provides, in relevant part,
If two or more persons in any State or Territory conspire to deter, by
force, intimidation, or threat, any party or witness in any court of the
United States from attending such court, or from testifying to any matter
pending therein, freely, fully, and truthfully, or to injure such party or
witness in his person or property on account of his having so attended
or testified . . . the party so injured or deprived may have an action for
the recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
42 U.S.C. § 1985(2).3
By its terms, the statute requires a conspiracy, but “[t]his court has held that a
corporation and its agents are a single person in the eyes of the law, and a corporation
cannot conspire with itself” to violate 42 U.S.C. § 1985. Cross v. Gen. Motors Corp.,
721 F.2d 1152, 1156 (8th Cir. 1983). Under this intracorporate conspiracy doctrine,
a local government entity cannot conspire with itself through its agents acting within
the scope of their employment. Id.; Richmond v. Bd. of Regents of Univ. of Minn.,
957 F.2d 595, 598 (8th Cir. 1992); cf. McAndrew v. Lockheed Martin Corp., 206 F.3d
1031, 1038 (11th Cir. 2000) (en banc) (“We have long recognized an exception to the
applicability of the intracorporate conspiracy doctrine for intracorporate criminal
conspiracies arising under 18 U.S.C. § 371 of the federal criminal code.”). The
referral of moving companies to property owners seeking the execution of evictions
was within the scope of employment for deputies and staff members in the sheriff’s
3

The district court dismissed this claim on the ground that “Plaintiffs do not
contend they were deterred from testifying,” but “rather, they contend that they [were]
retaliated against for having cooperated with the authorities.” The statute, however,
does forbid conspiracies to injure a witness “in his person or property on account of
his having so attended or testified.” 42 U.S.C. § 1985(2); see Haddle v. Garrison,
525 U.S. 121, 125 (1998).
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office, even though the amended complaint alleges improprieties in the execution of
these duties. See Cross, 721 F.2d at 1157 n.7. Therefore, to plead a plausible claim
under § 1985, Landlords Moving must allege that the private-party defendants, IEA,
participated in the alleged conspiracy.
The only possible direct reference to IEA in Count III is an allegation that Main
and other employees of the sheriff’s office “increased the extent of their conspiracy
and campaign with all the defendants to injure Landlords Moving by acting in concert
to shift clientele from Landlords Moving to Independent Eviction and other movers.”
Am. Compl. ¶ 60 (emphasis added). The amended complaint, however, alleges no
action by IEA to join or to further an alleged conspiracy. The pleading states merely
that IEA and other movers gained additional business as clients or potential clients
of Landlords Moving shifted their business. These statements are insufficient to
plead IEA’s involvement in a conspiracy. Count III does incorporate Count I,
including the allegation that IEA participated in a conspiracy to use “manipulatory
devices” that disadvantaged Landlords Moving in 2003, but these allegations do not
support a plausible inference that IEA participated in a different conspiracy to
retaliate for Nelson’s later participation in the federal investigation and prosecution.
Because the remaining alleged co-conspirators were all employees of the County
acting within the scope of their employment, Landlords Moving’s § 1985 claim was
properly dismissed.
D.
Count IV of the amended complaint seeks declaratory and injunctive relief.
The district court, having resolved all remaining claims against Landlords Moving,
dismissed this claim on the ground that the Declaratory Judgment Act does not
provide an independent basis for jurisdiction. Because we reverse the dismissal of
Landlords Moving’s First Amendment retaliation claim against Main, we also reverse

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dismissal of the claim for declaratory and injunctive relief against Main, and remand
that claim for further consideration.
*

*

*

For the foregoing reasons, we reverse the dismissal of Landlords Moving’s
claim against defendant Main for alleged violations of Landlords Moving’s rights
under the First Amendment, and we reverse the dismissal of Landlords Moving’s
claims for declaratory and injunctive relief with respect to that claim. We affirm the
dismissal of all other claims and remand for further proceedings.
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