UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-11141
_____________________
MARK BRYANT; WILLIE D. SMITH; ROBERT HILL,
Plaintiffs-Appellants,
versus
TEXAS UTILITIES SERVICES, INC., ET AL.,
Defendants,
TEXAS UTILITIES SERVICES, INC.; TEXAS ENERGY
INDUSTRIES, INC.; TEXAS UTILITIES MINING
COMPANY; TEXAS UTILITIES COMPANY; ENSEARCH CORP.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:99-CV-3-T)
_________________________________________________________________
September 11, 2000
Before WOOD*, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:**
The Rule 12(b)(6) dismissal, as to Appellees, of this action
is the subject of this FED. R. CIV. P. 54(b) appeal. We AFFIRM.
*
Senior United States Circuit Judge for the Seventh Circuit,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Appellants were arrested in January 1997 by a Texas game
warden, defendant Robinson (not one of the Appellees), while
hunting on land owned by a relative of appellant Bryant but leased
to appellee Texas Utilities Services, Inc. (TU) for lignite mining.
According to the complaint: Robinson told Appellants that TU
“asked [him] to patrol and keep you all out”, and he was going to
issue them a citation; when Appellants continued to assert their
right to be on the property, however, Robinson seized their weapons
and ordered them to follow him to jail; at the jail, when an
unknown corporate representative insisted Appellants be arrested
and prosecuted, Robinson told Bryant “he had no alternative but to”
comply, stating Appellees “did not want African-Americans on the
... property”; and, subsequently, a jury exonerated Appellants of
criminal charges. (Emphasis added.)
II.
We review a Rule 12(b)(6) dismissal de novo, in the light most
favorable to Appellants, with dismissal being appropriate “only if
... no relief could be granted under any set of facts that could be
proven consistent with the allegations” in the complaint.
Barrientos v. Reliance Standard Life Ins. Co., 911 F.2d 1115, 1116
(5th Cir. 1990), cert. denied, 498 U.S. 1072 (1991) (quotation
marks and citation omitted; emphasis added). Factual, but not
conclusory, allegations must be accepted as true. E.g., Fernandez-
2
Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993).
Appellants contend: the district court erred in dismissing
their federal claims, presented under 42 U.S.C. §§ 1983, 1985(3),
and 1986, and their state claims for intentional infliction of
emotional distress, false arrest, false imprisonment, assault,
malicious prosecution, negligence, gross negligence, and invasion
of privacy. Bryant v. Texas Utils. Servs., Inc., No. 3:99-CV-0003-
T (N.D. Tex. 8 July 1999) (unpublished). They maintain they
sufficiently alleged, for Rule 12(b)(6) purposes, facts
demonstrating a conspiracy, between Appellees and Robinson, to
deprive them of their civil rights: inter alia, Robinson’s
statement about Appellees “not want[ing] African-Americans on the
... property”, and Appellees’ “control” of Appellants’ prosecution.
(Emphasis added.)
As part of our review, we reject Appellants’ contention,
bordering on being frivolous, that the district court “misstated”
allegations in the complaint. In any event, that would not affect
our de novo review.
A.
Based on such review, we agree with the district court that
Appellees’ alleged activities do not rise to the level of a
conspiracy, sufficient to state a claim under §§ 1983, 1985 or
1986. See Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir. 1988)
(“private party does not act under color of state law when []he
3
merely elicits but does not join in an exercise of official state
authority”) (quotation marks and citation omitted; emphasis added);
see also Mississippi Women’s Med. Clinic v. McMillan, 866 F.2d 788,
795 (5th Cir. 1989) (to prevail on § 1986 claim, one must first
prevail under § 1985).
To succeed on these federal claims, Appellants would have to
show: “a sufficiently close connection between the state and the
challenged conduct for the [private] actor to be treated as an
agent of the state”, Sims v. Jefferson Downs Racing Ass’n, 778 F.2d
1068, 1076 (5th Cir. 1985); and “that the state ... acted according
to a preconceived plan [with] ... the private actor, [and] not on
the basis of [its] own investigation”. Bartholomew v. Lee, 889
F.2d 62, 63 (5th Cir. 1989) (emphasis added).
Appellants’ allegations fall far short of stating the
requisite elements. The complaint alleges Appellants were arrested
after Robinson: discovered them on the property; conducted his own
investigation, and determined, even if mistakenly, that they were
trespassing; and gave Appellants the opportunity to accept a
citation and leave. Regarding Appellees’ seeking Appellants’
arrest and prosecution, Appellants alleged the “state’s attorney”
told them Appellees were concerned that accepting Appellants’ right
to hunt on the land “would adversely impact [Appellees’] ability to
restrict other landowners and their invitees from hunting on other
[similarly leased] property”.
4
In the light of these specific allegations, Appellants’ “mere
characterization of [Appellees’] conduct as conspiratorial or
unlawful” fails to “set out allegations upon which relief can be
granted”. Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985)
(internal quotation marks and citation omitted; emphasis added),
cert. denied, 479 U.S. 826 (1986).
B.
Pursuant to the above discussion, and essentially for the
reasons stated by the district court, we conclude that Appellants
have likewise failed to allege sufficient facts to support their
state claims.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
5