3d Cir. Model Jury Instr. (Civil) 4.4.3

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Last updated March 2026

Co., 398 U.S. 144, 152 (1970); United States v. Price, 383 U.S. 787, 794 (1966)); see also Abbott 1

v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998). “[A]n otherwise private person acts ‘under color 2

of’ state law when engaged in a conspiracy with state officials to deprive another of federal rights.” 3

Tower v. Glover, 467 U.S. 914, 920 (1984) (citing Dennis , 449 U.S. at 27 -28); see also Adickes, 4

398 U.S. at 152 (“ Although this is a lawsuit against a private party, not the State or one of its 5

officials, . . . petitioner will have made out a violation of her Fourteenth Amendment rights and 6

will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of 7

employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss 8

Adickes service in The Kress store . . . .”).59 The existence of a conspiracy can be proved through 9

circumstantial evidence. See, e.g., Adickes , 398 U.S. at 158 (“ If a policeman were present, we 10

think it would be open to a jury, in light of the sequence that followed, to infer from the 11

circumstances that the policeman and a Kress employee had a 'meeting of the minds' and thus 12

reached an understanding that petitioner should be refused service.”).60 13

14

The Third Circuit has suggested that the plaintiff must establish the elements of a civil 15

conspiracy in order to use the existence of the conspiracy to demonstrate state action. See Melo v. 16

Hafer, 912 F.2d 628, 638 n.11 (3d Cir. 1990) (addressing plaintiff ’s action-under-color-of-state-17

law argument and “assum[ing], without deciding, that the complaint alleges the prerequisites of a 18

59 See also Cruz, 727 F.2d at 81 (“[A] store and its employees cannot be held liable under

§ 1983 unless: (1) the police have a pre -arranged plan with the store; and (2) under the plan, the

police will arrest anyone identified as a shoplifter by the store without independently evaluating

the presence of probable cause.”); Max v. Republican Committee of Lancaster County , 587 F.3d

198, 203 (3d Cir. 2009) (“Even if we accept the premise that poll -workers are state actors while

guarding the integrity of an election, the defendants here ... are not the poll -watchers. Defendants

here are private parties.... At most, defendants used the poll-workers to obtain information. This is

not the same as conspiring to violate Max's First Amendment rights.”).

60 In Startzell v. City of Philadelphia , 533 F.3d 183 (3d Cir. 2008), the Court of Appeals

upheld the grant of summary judgment dismissing conspiracy claims under 42 U.S.C. §§ 1983 and

1985 because the plaintiffs failed to show the required “meeting of the minds.” See Startzell, 533

F.3d at 205 (“Philly Pride and the City ‘took diametrically opposed positions’ regarding how to

deal with Appellants' presence at OutFest.... The City rejected Philly Pride's requests to exclude

Appellants from attending OutFest; moreover, the police forced the Pink Angels to allow

Appellants to enter OutFest under threat of arrest. It was also the vendors' complaints, not requests

by Philly Pride, that led the police officers to order Appellants to move toward OutFest's

perimeter.”). See also Great Western Mining & Mineral Co. v. Fox Rothschild LLP , 615 F.3d

159, 179 (3d Cir. 2010) (holding that plaintiff’s proposed amended complaint failed to plead “any

facts that plausibly suggest a meeting of the minds” between the defendants and state-court judges

who allegedly hoped for future employment with one of the defendants).