Opinion
No. 3-03-CV-1209-BD (R).
December 27, 2004
MEMORANDUM OPINION AND ORDER
This case is before the court on separate motions for summary judgment filed by Defendants Anthony J. Principi, Fionan O'Griofa and Aamir Hussain, collectively referred to as the "federal defendants," Defendant Sherry Hill, and Defendant Kenneth Wayne Mullen. For the reasons stated herein, the motions are granted.
I.
This is a federal civil rights action brought by Plaintiff Eric Gant, appearing pro se and in forma pauperis, against various federal employees, a Texas state judge, and a private attorney. The gravamen of plaintiff's complaint is that the Department of Veterans Affairs and two of its doctors, Fionan O'Griofa and Aamir Hussain, misdiagnosed him with paranoia and schizophrenia without giving him prior notice or an opportunity to be heard. (Plf. Orig. Compl. at 2-3, ¶¶ 2-3). Plaintiff further alleges that Judge Sherry Hill and Kenneth Wayne Mullen, his court-appointed lawyer, publically disclosed that plaintiff suffered from a mental illness during the course of a state criminal proceeding. ( Id. at 4, ¶ 9). Although the criminal charges were eventually dismissed, plaintiff takes issue with a notation in court documents that "IP doesn't want to prosecute/defendant mentally ill." ( Id. at 4-5, ¶ 9; see also Hill App. at 48, 50). According to plaintiff, the stigma of being diagnosed with paranoia and schizophrenia has resulted in "irreparable harm to [his] reputation, honor, dignity and integrity thereby constituting a deprivation of liberty interest that the 1st and 14th Amendment due process clause protects." (Plf. Orig. Compl. at 5-6, ¶ 13 9, ¶ 24). By this suit, plaintiff seeks $14 million in damages and equitable relief, including the expungement of his criminal record and all erroneous VA medical documentation. ( Id. at 11).
Plaintiff was charged with criminal trespass, a Class B misdemeanor, when he refused to leave a 24-Hour Fitness establishment in Arlington, Texas after being ordered off the premises.
Defendants now move for summary judgment as to all claims and causes of action. The issues have been briefed by the parties and the motions are ripe for determination.
The United States of America, acting on behalf of the federal defendants, previously filed a motion to substitute the United States as the sole defendant in this action on the ground that all claims alleged by plaintiff in his complaint arise under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, et seq. The court granted the motion, but only "[t]o the extent plaintiff asserts non-constitutional claims against the federal defendants for torts committed while acting in the scope of their employment[.]" ORDER, 10/1/04 at 2, citing Galvin v. Occupational Safety Health Administration, 860 F.2d 181, 183 (5th Cir. 1988). After reviewing plaintiff's complaint, interrogatory answers and summary judgment response, it now is apparent that he intends to sue the federal defendants for "violations of civil rights . . . and other claims based on the Constitution." ( See Plf. MSJ Resp. at 15). Consequently, the FTCA does not apply.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).
A summary judgment movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). The verified complaint and sworn interrogatory answers of a pro se litigant can be considered as summary judgment evidence to the extent such pleadings comport with the requirements of Fed.R.Civ.P. 56(e). See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993).
Rule 56(e) provides, in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
FED.R.CIV.P. 56(e).
A.
In count one of his complaint, plaintiff alleges that the federal defendants violated his right to procedural due process by diagnosing him with paranoia and schizophrenia without giving him notice or an opportunity to be heard. Plaintiff, who is African-American, contends that the stigma associated with such a diagnosis reinforces an existing stigma imposed by virtue of his race and has caused him mental anguish, severe embarrassment, humiliation, shame, and loss of economic opportunity. ( See Plf. Orig. Compl. at 5-7, ¶¶ 10-14, 19).
1.
The court initially observes that plaintiff has sued the federal defendants for civil rights violations under 42 U.S.C. § 1983. Under this statute:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983.
By its terms, section 1983 provides a cause of action to anyone deprived of a federally protected right under color of state law. District of Columbia v. Carter, 409 U.S. 418, 424-25, 93 S.Ct. 602, 606, 34 L.Ed.2d 613 (1973). It does not apply to actions taken by federal agencies or employees. Zernial v. United States, 714 F.2d 431, 435 (5th Cir. 1983). Because all the federal defendants in this case were operating under federal authority, plaintiff is not entitled to relief under 42 U.S.C. § 1983. However, constitutional violations by federal officials are actionable under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971). See Melear v. Spears, 862 F.2d 1177, 1182 n. 5 (5th Cir. 1989). The court therefore will consider this claim under Bivens. See Trevino v. United States, 2001 WL 880373 at *3 (N.D. Tex. Jul. 24, 2001) (Kaplan, M.J.) (construing section 1983 claim against federal employees under Bivens).
2.
A person may bring a Bivens action against a federal employee acting in his individual capacity for the violation of a constitutional right. Bivens, 91 S.Ct. at 2005; see also Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999). Absent a waiver of sovereign immunity, however, a person may not sue the federal government or a federal officer in his official capacity. See id; Price v. United States, 69 F.3d 46, 49 (5th Cir. 1995), cert. denied, 117 S.Ct. 295 (1996). The existence of a right of action under Bivens does not constitute a waiver of sovereign immunity. Dean v. Gladney, 621 F.2d 1331, 1335 (5th Cir. 1980), cert. denied, 101 S.Ct. 1521 (1981); see also Duncan v. Goedeke and Cleasey, 837 F.Supp. 846, 849 (S.D. Tex. 1993). Consequently, plaintiff's Bivens claim against Anthony J. Principi, in his capacity as Secretary of the Department of Veterans Affairs, must be dismissed for lack of subject matter jurisdiction.
To the extent plaintiff attempts to sue Principi in his individual capacity, he has failed to adduce any evidence that this defendant was personally involved in the alleged deprivation of any constitutional right. ( See Fed. Def. App. at 46, Quest. No. 3). Instead, plaintiff alleges that Principi was responsible for the actions of his employees and "cultural indifference due to lack of an enforcement of policy and statutory regulations[.]" ( Id.). A supervisory official, such as Principi, cannot be sued for civil rights violations under a theory of respondeat superior. See Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998).
3.
In order to maintain a Bivens claim against Fionan O'Griofa and Aamir Hussain, the VA doctors who allegedly misdiagnosed plaintiff with paranoia and schizophrenia, plaintiff must establish the existence of a constitutionally recognized property or liberty interest. See Broadway v. Block, 694 F.2d 979, 985 (5th Cir. 1982). Two kinds of privacy interests exist under the Fourteenth Amendment and its concept of personal liberty: "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-77, 51 L.Ed.2d 64 (1977) (footnotes omitted). Here, there is no evidence that O'Griofa and Hussain improperly disclosed any confidential medical information to the other defendants or to any third-party. To the contrary, the summary judgment record conclusively establishes that none of the federal defendants released plaintiff's medical records to "any of the private defendants or to any person other than in the ordinary course of VA business or with [their] attorney in this litigation." ( See Fed. Def. App. at 2, ¶ 7 6, ¶ 7). Nor does plaintiff claim that he was subjected to unwanted medical treatment. Cf. Lojuk v. Quandt, 706 F.2d 1456, 1465 (7th Cir. 1983), cert. denied, 106 S.Ct. 822 (1986) (suggesting that VA patient has constitutionally protected liberty interest in avoiding unwanted electroshock therapy). Instead, plaintiff takes issue with the lack of opportunity to challenge his diagnosis of paranoia and schizophrenia. ( See Plf. Orig. Compl. at 6, ¶ 15). Such a claim does not implicate a constitutionally protected property or liberty interest and is not actionable under Bivens.4.
Plaintiff also sues defendants under 42 U.S.C. § 1985 for conspiring with one another to label him as mentally ill during the state criminal proceeding. Section 1985 provides a cause of action to any person injured as a result of a private conspiracy to interfere with certain civil rights. See Holdiness v. Stroud, 808 F.2d 417, 424 (5th Cir. 1987). In order to prove a private conspiracy, a plaintiff must show class-based discriminatory animus and interference with a right that is protected against private as well as official encroachment. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268, 113 S.Ct. 753, 758, 122 L.Ed.2d 34 (1993). Plaintiff alleges that the federal defendants failed to provide him with an opportunity to contest his diagnosis and that the other defendants disseminated false information about his mental condition. Even if plaintiff could show that defendants interfered with a right of constitutional dimension, there is no evidence of class-based discriminatory animus. As a result, plaintiff's conspiracy claim fails as a matter of law.5.
Nor can plaintiff maintain a cause of action under 42 U.S.C. § 1981. That statute provides, in pertinent part:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . . For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification and termination of contracts, and enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.42 U.S.C. § 1981(a) (b). A race discrimination claim brought under section 1981 is governed by the same burden-shifting paradigm applicable to Title VII cases. See Harrington v. Harris, 118 F.3d 359, 367 (5th Cir.), cert. denied, 118 S.Ct. 603 (1997). Thus, in order to survive summary judgment, plaintiff must adduce some evidence that defendants discriminated against him on the basis of race.
Plaintiff fails to allege, much less prove, that any defendant discriminated against him because he is African-American. In his complaint, plaintiff merely suggests that the stigma of being falsely diagnosed with a mental illness adds to the oppression he has suffered as a member of a racial minority. ( See Plf. Compl. at 6-7, ¶¶ 14 25). The court is unable to infer race discrimination based on this fact alone. Without more, plaintiff cannot establish his claim under 42 U.S.C. § 1981. See Reedom v. Scott, 2004 WL 1402518 at *2 (N.D. Tex. Jun. 21, 2004) (Kaplan, M.J.), rec. adopted, 2004 WL 1620662 (N.D. Tex. Jul. 16, 2004).
B.
Finally, plaintiff sues Judge Sherry Hill and Kenneth Wayne Mullen for disclosing the nature of his alleged mental illness in court documents. To the extent plaintiff seeks money damages against these defendants under the federal civil rights statutes, his claim is without merit. As a state judge, Hill has absolute immunity for actions taken within the scope of her jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 359-60, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331 (1978); Graves v. Stricklin, 2003 WL 22718443 at *2 (N.D. Tex. Nov. 17, 2003) (Kaplan, M.J.), rec. adopted, 2003 WL 22862690 (N.D. Tex. Dec. 2, 2003). Mullen, a private attorney, is not a "state actor" within the meaning of 42 U.S.C. § 1983. See Polk Co. v. Dodson, 454 U.S. 312, 324-25, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981); Graves, 2003 WL 22718443 at *2. Moreover, plaintiff asserted nearly identical claims against Mullen in a prior state court action. Those claims were dismissed with prejudice. Gant v. 24 Hour Fitness World Wide, Inc., et al., No. 17-191255-02 (17th Dist. Ct., Jan. 9, 2004), appeal dism'd, 2004 WL 912600 (Tex.App.-Fort Worth, Apr. 29, 2004). Consequently, plaintiff is barred from suing Mullen under the same or similar theories in federal court. See Ellis v. Amex Life Insurance Co., 211 F.3d 935, 937 (5th Cir. 2000) (res judicata, or claim preclusion, bars subsequent litigation between the same parties when a prior action involving the same claim or cause of action reached final judgment on the merits in a court of competent jurisdiction).
CONCLUSION
There are no genuine issues of material fact and defendants are entitled to judgment as a matter of law. Accordingly, the motions for summary judgment filed by Defendants Anthony J. Principi, Fionan O'Griofa, and Aamir Hussain, Defendant Sherry Hill, and Defendant Kenneth Wayne Mullen are granted. By separate order this date, the court will dismiss this action with prejudice.
Plaintiff also sued Carey Geesfneght, a state prosecutor, who never was served with process. Like judges, state prosecutors are immune from suit for actions taken within the scope of their authority. See Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 993, 47 L.Ed.2d 128 (1976); Gaddy v. Lowe, 2003 WL 22938922 at *1 (N.D. Tex. Nov. 26, 2003) (Kaplan, M.J.). The court therefore will sua sponte dismiss all claims against Geesfneght.
SO ORDERED.