# Paul Moore v. City of Paducah John Penrod, Mayor Joe Viterisi, Commissioner Robert Coleman, Commissioner Joe Flynn, Commissioner, Robert E. Green

> Court of Appeals for the Sixth Circuit · January 9, 1990 · 890 F.2d 831

URL: https://www.frixlaw.com/law-library/cases/9479733

## Case

- **Full name:** Paul MOORE, Plaintiff-Appellant, v. CITY OF PADUCAH; John Penrod, Mayor; Joe Viterisi, Commissioner; Robert Coleman, Commissioner; Joe Flynn, Commissioner, Defendants, Robert E. Green, Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 9, 1990
- **Citations:** 890 F.2d 831
- **Precedential status:** Published
- **Opinion:** Concurrence by Wellford
- **Judges:** Krupansky, Wellford, Celebrezze
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479733

## How later opinions describe it (automated extraction)

- holding that individuals who conspire with a state actor to deprive individuals of their federally-protected rights may be found to have acted under color of state law for purposes of § 1983 liability
- holding that individuals who conspire with state actor to deprive individuals of their federally-protected rights may be found to have acted under color of state law for purposes of § 1983 liability
- holding that persons who conspire with state actors to deprive individuals of federally-protected rights may be found to have acted under color of state law for § 1983 liability purposes

## Opinion text

WELLFORD, Circuit Judge,
concurring:
As pointed out by my colleague, Judge Celebrezze, under the facts of this case the only conspiracy damages for which defendant Green, a private citizen, might be held liable to Moore under 42 U.S.C. § 1983 was the deprivation of “an opportunity to be heard before he is deprived of a property interest” under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 , 105 S.Ct. 1487, 1493 , 84 L.Ed.2d 494 (1985). 1 This is the remaining aspect of Moore’s claim because he has already recovered in state court on essentially the same cause of action from the others engaged in the alleged conspiracy with Green “all loss of wages and other employment benefits.” (His basic salary, to be sure, was not reduced when he was transferred). Moore cannot recover twice for the same damages and for economic value of relief already received, such as his reinstatement to his former position. See City of Paducah v. Moore, 662 S.W.2d 491 (Ky.App.1984).
*836 Under § 1983, of course, Moore may be entitled to attorney’s fees and costs. Thus, his claim against Green, although limited because of his prior recovery, is more than a de minimis one. A plaintiff alleging a civil conspiracy under § 1983 is not required to prove direct evidence of the conspiratorial agreement. The conspiracy may be shown by circumstantial evidence. McCabe’s Furniture, Inc. v. La-Z-Boy Chair Co., 798 F.2d 323, 328 (8th Cir.1986), cert. denied, — U.S.-, 108 S.Ct. 1728 , 100 L.Ed.2d 193 (1988); Hampton v. Han-rahan, 600 F.2d 600 , 621 (7th Cir.), rev’d in part on other grounds, 446 U.S. 754 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 (1979). The district court in its opinion also recognized this.
There is, of course, a difference between a threat or protest made by a private citizen to a public authority affecting the rights of an employee and a conspiracy between the protesting private citizen and the authority or municipality which may act motivated, at least in part, by the threat or protest. See Stachura v. Trusz-kowski, 763 F.2d 211 (6th Cir.1985).
Although I believe it is a close question in this case, I concur in the result reached because I can find no direct evidence of any conspiracy nor any reasonable basis for an inference that Green was involved in one. The Commonwealth of Kentucky assumed jurisdiction of the project in question on January 16, 1981, and Moore conceded that after that he “had no more responsibility, liability or jurisdiction on the job.” (emphasis added). Moore was not transferred until May of 1981. No reasonable inference could be drawn, especially in light of the testimony of defendants, uncontradict-ed in most respects, that Green had any reason, after January, to want to cause the transfer of one who had no responsibility over and jurisdiction over the job in controversy.
I therefore concur in the affirmance.
. There is a question as to whether Loudermill should be applied retroactively to the circumstances here. Whether there was a clearly established constitutional right to a hearing from the City in 1981 is uncertain. See Stachura v. Truszkowski, 763 F.2d 211 (6th Cir.1985), for an example of such retroactive application without discussion. The evidence is that Green, a private citizen, was not aware of Moore’s constitutional right to a pre-transfer hearing as later set out in Loudermill . The city attorney was also not aware of any such right.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479733. Public record. Not legal advice.