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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.,

(5th Cir. 1990), cert. denied,

(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,

(5th Cir. 1993).

Appellants contend: the district court erred in dismissing

their federal claims, presented under

, 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,

(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,

,

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,

(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,

(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,

(5th Cir. 1985)

(internal quotation marks and citation omitted; emphasis added),

cert. denied,

(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.

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