United Steelworkers of America v. Phelps Dodge Corp.

• Decision Date: 18 January 1989
• Docket Number: No. 86-2811,86-2811
• Citation: 865 F.2d 1539
• Parties: 130 L.R.R.M. (BNA) 2353, 57 USLW 2467, 110 Lab.Cas. P 56,017 UNITED STEELWORKERS OF AMERICA; et al., Plaintiffs-Appellants, v. PHELPS DODGE CORPORATION, a New York corporation; et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1539

865 F.2d 1539

130 L.R.R.M. (BNA) 2353, 57 USLW 2467,

110 Lab.Cas. P 56,017

UNITED STEELWORKERS OF AMERICA; et al., Plaintiffs-Appellants, v. PHELPS DODGE CORPORATION, a New York corporation; et al.,

Defendants- Appellees.

No. 86-2811.

United States Court of Appeals, Ninth Circuit.

Argued En Banc and Submitted Sept. 20, 1988.

Decided Jan. 18, 1989.

Bruce R. Lerner, Bredhoff & Kaiser, Washington, D.C., for plaintiffs-appellants.

James G. Speer, Evans, Kitchel & Jenckes, P.C., Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before GOODWIN, Chief Judge, WALLACE, TANG, SCHROEDER, FLETCHER, NORRIS, REINHARDT, BEEZER, THOMPSON and O'SCANNLAIN, and TROTT, Circuit Judges.

WALLACE, Circuit Judge:

Following a bitter strike, unions representing employees of a Phelps Dodge Corporation facility (Phelps Dodge) and certain individuals (collectively the Steelworkers) sued Phelps Dodge, law enforcement officials and others for conspiracy to violate the civil rights of the Steelworkers. After dismissing some defendants, the district court granted summary judgment for Phelps Dodge, and judgment was entered pursuant to Fed.R.Civ.P. 54(b). The Steelworkers appealed, and a panel of this court affirmed. The appeal was subsequently taken en banc.

The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1343, and we have jurisdiction under 28 U.S.C. Sec. 1291. We reverse the judgment of the district court and remand the action for further proceedings. The opinion of the three-judge panel, reported at 833 F.2d 804 (9th Cir.1987), is withdrawn.

I

The background of this appeal was succinctly stated in the panel opinion:

Phelps Dodge owns and operates a copper mine and milling plant in Ajo, a few miles south of Tucson. In 1983, the unions representing those employees went on strike. By all accounts the strike was bitter, dividing the town and resulting in violence by both strikers and non-strikers. Huge demonstrations and violent confrontations met the company's attempt to replace the strikers. In this explosive situation both Pima County Sheriff's Department Officers, and Arizona Public Safety Officers were called to Ajo.

During the strike, several strikers were arrested and charged with felonies. Bail was set at $15,000 for each. When they could not post bail they were jailed in nearby Tucson. Other strikers were arrested or cited and charged with misdemeanors.

The Steelworkers sued Phelps Dodge, Pima County, the Sheriff and individual Deputies, the Arizona Department of Public Safety and individual officers, individual attorneys of the County Attorney's Office, and the Ajo Justice of the Peace for conspiracy to deprive the strikers and their supporters of their constitutional rights in violation of 42 U.S.C. Sec. 1983. They alleged discriminatory enforcement of the law, arrests without probable cause, and excessive bail.

The State Department of Public Safety and its officers, the Justice of the Peace, and the attorneys were dismissed. The district court then granted summary judgment and costs for Phelps Dodge. The Steelworkers appealed, contending that sufficient evidence of a conspiracy was presented to require a jury trial.

United Steelworkers of America v. Phelps Dodge Corp., 833 F.2d 804, 805 (9th Cir.1987).

We review the entry of summary judgment independently. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We are governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Id. Under that standard, summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, the crucial question before us is whether the evidence presented by the Steelworkers, together with permissible inferences drawn from that evidence, is sufficient to establish a "genuine issue as to any material fact."

II

The Steelworkers contend that a genuine issue exists as to whether Phelps Dodge was part of a conspiracy to deprive the strikers of their civil rights in violation of 42 U.S.C. Sec. 1983. Actions may be brought pursuant to 42 U.S.C. Sec. 1983 to redress constitutional violations under color of state law. Private parties act under color of state law if they willfully participate in joint action with state officials to deprive others of constitutional rights. Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970) (Adickes ); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966); Fonda v. Gray, 707 F.2d 435, 437 (9th Cir.1983) (Fonda ). Private parties involved in such a conspiracy may be liable under section 1983. Adickes, 398 U.S. at 152, 90 S.Ct. at 1605.

To prove a conspiracy between the state and private parties under section 1983, the Steelworkers must show "an agreement or 'meeting of the minds' to violate constitutional rights." Fonda, 707 F.2d at 438; see Adickes, 398 U.S. at 158, 90 S.Ct. at 1609. 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. Fonda, 707 F.2d at 438. Evidence that police failed to exercise independent judgment will support an inference of conspiracy with a private party. See Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 435-36 (7th Cir.1986) (police agreement to arrest anyone designated by shopkeeper constitutes conspiracy), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352-53 (7th Cir.1985) (same).

Whether the Steelworkers have proven the existence of a conspiracy to deprive them of their civil rights is not before us. We assume for purposes of this appeal that such a conspiracy did exist and did violate their civil rights. We have before us only the narrow issue of whether the Steelworkers have alleged enough evidence that Phelps Dodge was in fact a participant in this conspiracy to defeat a motion for summary judgment. We first discuss the standard that the Steelworkers must satisfy to defeat a summary judgment motion. We then consider whether the Steelworkers have satisfied this standard.

A.

The Steelworkers rely primarily on Adickes. The Court there concluded that unless the alleged conspirators foreclosed the possibility of a tacit agreement from which a conspiracy could be inferred, they were not entitled to summary judgment. 398 U.S. at 157, 90 S.Ct. at 1608. Adickes involved a white schoolteacher who was refused service in a public restaurant while in the company of several of her black students. As she left the restaurant, she was arrested for vagrancy by local police. Adickes brought a section 1983 claim against the restaurant, alleging that the refusal to serve her and her subsequent arrest were products of a conspiracy between a private individual (Kress) and a governmental entity (local police). The district court granted summary judgment against Adickes, ruling that she "failed to allege any facts from which a conspiracy might be inferred." Adickes v. S.H. Kress & Co., 252 F.Supp. 140, 144 (S.D.N.Y.1966). The court of appeals affirmed. Adickes v. S.H. Kress & Co., 409 F.2d 121, 126-27 (2d Cir.1968).

The Supreme Court reversed, ruling that the alleged conspirators had failed to negate inferences that could be drawn from the presence of a policeman inside the restaurant while Adickes was awaiting service. Although the store manager's deposition claimed that he had not seen or communicated with a policeman, there were no affidavits from two other employees present in the store at the time. Thus, Kress "did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while [Adickes] was awaiting service, and that this policeman reached an understanding with some Kress employee that [Adickes] not be served." Adickes, 398 U.S. at 157, 90 S.Ct. at 1608. The Court held that there was circumstantial evidence of a conspiracy, and the "unexplained gaps" in the record were held against Kress because, as the moving party, it had the initial burden to show affirmative evidence of the nonexistence of a material fact in dispute. Id.

If the Supreme Court had given no further guidance, we would decide this appeal based on whether Phelps Dodge had foreclosed the possibility of the existence of facts from which an inference of conspiracy could be drawn. Phelps Dodge would have the burden of showing the absence of a genuine issue as to any material fact, and any unexplained gaps in the record would be held against it. Id. But the Supreme Court has given additional guidance in two subsequent decisions: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (Liberty Lobby ), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Celotex ).

In Liberty Lobby, the Court held that when a defendant moves for summary judgment, the trial court must determine from the record whether "a fair-minded jury could return a verdict for the plaintiff on the evidence presented." 477 U.S. at 252, 106 S.Ct. at 2512. The possibility that the plaintiff may discredit the defendant's testimony at trial is not enough for the plaintiff to defeat a properly presented motion, "the plaintiff need only present [affirmative] evidence from which a jury might return a verdict in his favor." Id. at 257, 106 S.Ct. at 2514. If from the evidence presented a jury could "reasonably find either that the plaintiff proved his case or that he did not," id. at 254, 106 S.Ct. at 2513 (emphasis in original), summary judgment must be...