United Steelworkers v. Phelps Dodge Corp. ( 1987 )

EUGENE A. WRIGHT, Circuit Judge:

This case presents the sole question whether sufficient evidence was presented to defeat a motion for summary judgment. Following a bitter strike, the unions representing Phelps Dodge Employees in Ajo, Arizona sued the company, law enforcement officials, and others for conspiring to violate the civil rights of the strikers. The district court granted summary judgment for Phelps Dodge, and the unions appealed. We affirm.

BACKGROUND

Phelps Dodge owns and operates a copper mine and milling plant in Ajo, approximately 80 miles west 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 Sheriffs Department Officers, and Arizona Public Safety Officers were called into 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. § 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.

ANALYSIS

THE SUMMARY JUDGMENT STANDARD

This court reviews the grant of summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 630; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The question of material fact does not have to be resolved conclusively to entitle the nonmoving party to proceed to trial. However, that party must produce sufficient evidence supporting the alleged factual dispute so that a jury is required to resolve the issue. Id. The trial judge “must view the evidence presented through the prism of the substantive evidentiary burden.” Id. 106 S.Ct. at 2513. Considering that burden, the nonmoving party must come forward with specific facts from which a reasonable jury could find in his favor. Id. at 2514; T.W. Electrical, 809 F.2d at 631.

The Steelworkers charged Phelps Dodge with violating the strikers’ civil rights under color of state law. To prevail, the union was required to prove the existence of a conspiracy, as private persons act under color of state law only when they conspire with or wilfully participate with state officials to deprive others of constitutional rights. Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984); Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984).

Proof of a conspiracy requires a showing of agreement or meeting of the minds between the private persons and government agents. All must, at least, share common objectives or purpose. Fonda v. Gray, 707 F.2d 435, 438 (9th Cir.1983). To indicate a dispute of material fact in the context of a civil rights claim, there must be some evidence of control by the private party over the actions of the state officials. See Arnold v. International Business Machines, 637 F.2d 1350, 1356-57 (9th Cir.1981). See also Mann v. City of Tucson, Dep’t of Police, 782 F.2d 790, 793 (9th Cir.1986).

In response to the summary judgment motion, the Steelworkers presented evidence of relationships between Phelps Dodge and the Justice of the Peace, the county attorney, and several sheriffs deputies. They noted that many of those persons lived in or moved into company housing, that many had relatives working for Phelps Dodge, before and/or during the strike, that interest-free installment sales were made to some deputies, and that a credit account for the sheriffs department was established during the strike.

The unions contended that there was concerted activity between the company and law enforcement officers. Citing Phelps Dodge security records and Sheriffs Department logs, they alleged shared radio channels, daily meetings between deputies and security guards, and discussion of decisions regarding treatment of picketers.

Finally, they produced depositions of several persons indicating that Phelps Dodge was not satisfied with the response of the police to the strikers. According to the depositions, the company consistently asked the police to adopt a more aggressive posture and to begin arresting those strikers who were most actively involved in the violent activity. There was evidence that after an especially violent and explosive confrontation at the gates had forced closure of the Ajo facilities, the company demanded that the sheriff respond forcefully. It asked that those involved be arrested, and it requested that bail be set high enough to keep the strikers off the streets.

The unions assert that this is circumstantial evidence of a conspiracy between the company and the law enforcement officials requiring a trial. Phelps Dodge maintains, and we agree, that its responses to the strike were those of an innocent, aggrieved party looking for justice and for protection by the police. We hold that only speculation and conjecture could support a finding of a conspiracy.

In a small town, such as Ajo, it would be unlikely that police and company employees would not be related. Because Phelps Dodge was the major landowner and employer of the area, doubtless many in every occupation lived in company-owned housing, traded at the company store, and had worked for the company in some capacity. These facts evidence the realities of small town life. They do not fulfill the unions’ burden of presenting evidence of a conspiracy. A jury could only speculate that the evidence of ties between the police and the company indicated improper leverage by the company over police, attorneys, and judicial officers.

When faced with a force of strikers determined to create confrontations and to interfere with the rights of employees to report peacefully to work, the company asked for whatever relief it could obtain from law enforcement personnel. Not satisfied with what seemed ineffectual measures, and injured economically, the company urged the police to increase their level of protection. Realizing the concern of the company, the sheriff notified it in advance of actions that could cause serious repercussions. No evidence was presented from which a jury could infer that the company and police jointly planned and implemented efforts to control the strikers.¹

Evidence that the company insisted that the Sheriff act to stop the violence, the blockading of the company, and the breaking of the law does not indicate control over police actions necessary to indicate a dispute of material fact sufficient to meet the summary judgment motion.

In their arguments before the district court in opposition to a motion to dismiss claims against the Sheriffs Department officers, the unions made several representations and admissions. They contended that the policies of the county and the decisions of county authorities were responsible for the treatment of the strikers, the arrests, and the high bail. The evidence supports these representations. There is no evidence that would connect actions of the police with some further direction by Phelps Dodge. The unions have not met their evidentiary burden on the issue of conspiracy. Summary judgment was appropriate.

AFFIRMED.

1 . The dissent argues that summary judgment is improper because a jury could infer the existence of a conspiracy from "contextual facts” such as the "structural relationship” between the company and the town, and the "evidence of close cooperation between the company and law enforcement officials.” The dissent concedes that the record is devoid of evidence directly tying the company to the pattern of discriminatory law enforcement. It maintains, however, that "the patterns are themselves evidence of conspiracy to deny plaintiffs their civil rights."

What the dissent overlooks is the requirement that a nonmoving party, if it is to survive a motion for summary judgment, produce "specific facts” supporting its theory to go along with contextual evidence. T. W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 631 & n. 3 (9th Cir.1987). In the context of a claim of conspiracy to violate the nonmoving party’s civil rights, that requirement entails the production of direct evidence that Phelps Dodge exercised control of power over law enforcement officials, and that Phelps directed those officials to violate the steelworkers’ civil rights. Arnold v. International Business Machines, 637 F.2d at 1356. In this case, no such specific facts were presented.