Opinion
No. 3:96-CV-580-L.
September 8, 2000.
MEMORANDUM OPINION AND ORDER
Before the court are Motion for Summary Judgment of Friedman, Rich and Reese, filed September 8, 1999; Defendant Dennis J. Eichelbaum's Second Motion for Summary Judgment, filed September 8, 1999; Defendant Dennis J. Eichelbaum's Supplemental Motion for Summary Judgment, filed January 10, 2000; Defendants' Lawrence J. Friedman, Alan B. Rich, and David Reese's Supplemental Motion for Summary Judgment, filed January 10, 2000; and Defendant Keever's Supplemental Motion for Summary Judgment, filed January 10, 2000. The court, after considering the briefs, responses, replies, summary judgment record, and applicable law regarding these motions, grants the motions of all Defendants.
I. Procedural and Factual Background
On August 24, 1999, the court issued a memorandum opinion and order in which it held that Plaintiffs, with respect to their retaliatory First Amendment claim of denial of access to the courts, had not alleged the violation of an actual constitutional right or established that any constitutional right was clearly established in July 1995, and granted summary judgment for Defendant Keever. The court framed the claim raised by Plaintiffs as follows:
In light of Plaintiffs' complaint, the issue presented to the court is whether the filing of an allegedly retaliatory counterclaim seeking a declaratory judgment in state court on a matter already pending before that court is a violation of the First Amendment right of access to the courts.
The court denied qualified immunity for Defendants Eichelbaum, Friedman, Rich, and Reese (the "attorney defendants"). The court further stated that nothing in its order suggested that these Defendants would not be entitled to summary judgment on the merits and set a deadline of September 8, 1999 for the filing of summary judgment. The attorney defendants filed second motions for summary judgment within this deadline.
Plaintiff Venable filed a motion to vacate the court's ruling of August 24, 1999, on October 15, 1999, which was superseded by his amended motion to vacate, filed on October 28, 1999. Venable in essence contended that the court did not address or understand the issue of retaliation. Although the court disagreed with Venable's position and denied his motion to vacate, the court, out of its desire to view the issue of retaliation in the light most favorable to Venable, allowed the parties to file supplemental pleadings to address the merits of the retaliation issue. All parties have filed supplemental pleadings, and all issues have been fully briefed.
The facts underlying Plaintiffs' action are set forth in the court's Memorandum Opinion and Order of August 24, 1999, which is adopted and incorporated as if set forth herein verbatim. The parties may refer to that opinion for a recitation of the facts, as they will not be repeated in this opinion unless restatement is necessary to explain the court's analysis of the issue presented. The court will include only such additional facts as are necessary for its analysis.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celolex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Company, 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id., see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
A. Summary Judgment Regarding Qualified Immunity
In its Memorandum Opinion and Order of August 24, 1999, the court granted Defendant Keever's Motion for Summary Judgment on the basis of qualified immunity. In doing so, the court applied the doctrine of qualified immunity pursuant to applicable Supreme Court and Fifth Circuit precedent. The court concluded that Plaintiffs did not allege or establish that their ability to file suit was delayed or blocked altogether and therefore did not allege the violation of a constitutional right at all. Alternatively, the court concluded that if Plaintiffs alleged the violation of a constitutional right, it was not clearly established in July of 1995. See Court's Opinion at pp. 7-11.
In light of Plaintiff Venable's contention that the court did not address or understand the issue, the court, after further research and reading the authorities cited by the parties, is convinced that it properly framed and analyzed Plaintiffs' alleged First Amendment claim as pleaded. The court believes that the issue as framed necessarily included any claim of retaliation and that its prior ruling is dispositive of any retaliation issue raised, given the context in which Plaintiffs pleaded their case. The court is convinced that the correct legal standard was applied, will not alter its earlier decision regarding Defendant Keever's entitlement to summary judgment, and adopts and incorporates its prior decision as if repeated herein verbatim.
The Fifth Circuit has held that the right of access to the courts is a "facilitative right" designed to allow an individual to institute legal action without official resistance, blocks, or delay to filing the suit. Foster v. City of Lake Jackson, 28 F.3d 425, 430 (5th Cir. 1994); Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). In other words, the right of access to the courts is restricted to a facilitative right to bring a suit without official impediment. Foster v. City of Lake Jackson, 28 F.3d at 430; Hale v. Townley, 45 F.3d at 920. Such right simply did not, in July 1995, encompass an allegedly retaliatory and frivolous counterclaim filed in state court. Moreover, as the record amply illustrates that Plaintiffs have filed this and other lawsuits against the Dallas Independent School District ("DISD") and District officials, their ability to institute suits simply has not been delayed or blocked altogether. As Plaintiffs' right to file suit was not in any way blocked or delayed by official action, no First Amendment right is implicated. The court in no way intimates that the filing of an allegedly retaliation counterclaim in state court is proper; however, the remedy or sanction to be imposed for an improper or frivolous claim or pleading must be addressed and decided by the appropriate state court.
Plaintiffs cite no Supreme Court or Fifth Circuit authority which put Defendant Keever on notice that the filing of an allegedly retaliation counterclaim in state court would violate the First Amendment. In other words, Plaintiffs have cited no authority to the court from the Supreme Court or Fifth Circuit that would have made it apparent to Keever that filing a state counterclaim in retaliation for the exercise of activity protected under the First Amendment would violate federal law. In Harrison v. Springdale Water Sewer Comm., 780 F.2d 1422, 1426-28 (8th Cir. 1986), the court held that a plaintiff had sufficiently stated a § 1983 cause of action for infringement of the constitutional right of access to the courts by the defendants' filing of a retaliation counterclaim against the plaintiff in a separate state lawsuit. Harrison, of course, is from the Eighth Circuit, and is not the law of this circuit. The Fifth Circuit had an opportunity to adopt the holding of Harrison but expressly declined to approve or disapprove it. See Crowder v. Sinyard, 884 F.2d 804, 812-13, n. 9 (5th Cir. 1989), cert. denied, 496 U.S. 924 (1990).
Plaintiffs contend that in Lamar v. Steele, 693 F.2d 559 (5th Cir. 1982), cert. denied, 464 U.S. 82 1 (1983), the Fifth Circuit previously considered the issue of retaliation in a First Amendment context with respect to denial of access to the courts. Plaintiff Venable's reliance on Lamar is misplaced, as Lamar is inapposite to this case. Lamar was a prisoner case in which it was established that the plaintiff was assaulted and threatened with death because of his involvement in filing lawsuits or assisting other inmates in filing lawsuits against prison officials. Given the pattern of flagrant conduct and intimidation by a prison official, the Fifth Circuit held that Lamar had proved a deprivation of his right of access. Plaintiffs in this action, however, complain only of an allegedly retaliation counterclaim for exercising their First Amendment right of access to the courts. Plaintiffs have not alleged or shown, as did the plaintiff in Lamar, that there was any official impediment on the part of DISD in retaliation for the exercise a right protected by the First Amendment. The Fifth Circuit simply has not recognized a constitutional right as pleaded by Plaintiffs.
B. Summary Judgment regarding the Merits
1. No Existence of a Constitutional Right
In any § 1983 lawsuit, the initial inquiry by the court is whether a plaintiff "has been deprived of a right `secured by the Constitution and laws.'" Baker v. McCollan, 443 U.S. 137, 140 (1979). The court has ruled that Plaintiffs have not, as pleaded or through summary judgment evidence, alleged or established the violation of a right secured by the First Amendment. Accordingly, since no violation has been alleged or established, Defendants Keever, Friedman, Reese, Rich and Eichelbaum are entitled to summary judgment on the merits regarding Plaintiffs retaliation First Amendment claim of denial of access to the courts. Plaintiff Finlan, in his response, contends that Defendant Keever's Supplemental Motion for Summary Judgment only addresses claims made by Plaintiff Venable. This contention is rendered moot because the court has concluded that no constitutional right or claim had been alleged or established in its initial ruling in August 1999. The court's substantive ruling was that no constitutional right existed as pleaded by Plaintiffs. The "clearly established right" language in the court's ruling was used in conjunction with the court's alternative holding. The court reaffirms its earlier ruling.
2. Insufficient Evidence to Raise a Genuine Issue of Material Fact regarding Retaliation
Even if the court were to conclude that Plaintiffs properly stated a claim for retaliation under the First Amendment, they have failed to raise a genuine issue of material fact. What appears to be the main focus of Plaintiffs' position is a resolution passed by the Board on June 22, 1995 ("Resolution"). The Resolution provides as follows:
In the opinion of the Board of Education, the litigation between Don Venable, Richard Finlan, Ed Grant, and the Dallas Independent School district, its employees, officials, and agents, which has over the last five (5) years involved multiple lawsuits, should no longer be permitted to expend such significant amounts of General Counsel's time from more pressing legal matters in representing the District. It is the opinion of the Board that Larry Friedman and Associates should be designated lead counsel in all such litigation.
The Board of Education believes that it is appropriate to instruct its General Counsel, Dennis J. Eichelbaum, along with such other attorneys as its General Counsel may designate, to file such pleadings and lawsuits as necessary to resolve all matters between Don Venable, Richard Finlan, Ed Grant, and the Dallas Independent School District, its employees, officials, and agents.
After consultation with the Board President and General Superintendent, through and with the consent of the District's General Counsel, designated counsel shall file these motions at a time believed to be appropriate.
The language contained in the Resolution and other evidence addressed by Plaintiffs are simply insufficient to raise a genuine issue of material fact regarding Plaintiffs' First Amendment claim of retaliation. The Resolution makes clear that Plaintiffs had been involved in litigation with DISD for a number of years on various matters, and this is amply supported by the record. That an opponent is aggressive (or even overly aggressive) in responding to litigation by the filing of an allegedly frivolous counterclaim is insufficient to establish the existence of a retaliation First Amendment claim. This is particularly important in light of the litigious history between Plaintiffs and DISD. Plaintiffs reference litigation with DISD since 1992; however, they offer no competent summary judgment evidence that the filing of the one counterclaim made the basis of this action was in retaliation for having engaged in activity protected by the First Amendment. For example, a substantial part of Plaintiffs' evidence turns on what transpired at DISD Board meetings in 1992 and 1993, some two or three years before the Resolution was passed and counterclaim filed. This simply is too slender a reed to raise a genuine issue of material fact that the Keever counterclaim was a retaliation act by Defendants for Plaintiffs' exercise of a First Amendment right. The court does not believe that Plaintiffs can meet their summary judgment burden by relying on the history of their contentious litigation with DISD and its officials and establish that the filing of this one counterclaim was in retaliation for the exercise of protected activity under the First Amendment. In other words, Plaintiffs have focused on the history of their legal fights with DISD, rather than the filing of the particular counterclaim which is the determinative act in this action.
3. Failure of Plaintiffs to Allege and Establish the Necessary Elements to Prevail on a First Amendment Claim.
Alternatively, Plaintiffs' First Amendment retaliation claim is foreclosed because they have failed to allege a constitutional claim and establish each element of the underlying tort claim — malicious prosecution. See Johnson v. Louisiana Dep't of Agriculture, 18 F.3d 318, 320 (5th Cir. 1994); Colson v. Grohman, 174 F.3d 498, 513 n. 8 (5th Cit. 1999). Plaintiffs, in particular Venable, contend that these two cases are inapplicable because this is not a malicious prosecution case. In Johnson and this case, the allegations are that there was an abuse or misuse of the legal system to accomplish a retaliation purpose. For example, Plaintiff Venable contends that Defendants Keever, Finlan, Rice, and Eichelbaum abused his First Amendment right of unfettered access to the legal system by retaliation or abusively frivolous litigation. Plaintiff Finlan contends that Defendants Keever, Friedman, Rich, and Eichelbaum entered a conspiracy "to drive [him] from the courthouse" and to punish him for making inquiries about Keever's campaign finances and to put an end to his numerous requests for information from DISD and the filing of lawsuits against DISD. Both claim that this was retaliation in violation of the First Amendment. The court thus finds that Plaintiffs' First Amendment claim, to the extent asserted, is more closely analogous to those raised by the plaintiffs in Johnson and Colson.
Plaintiff Venable describes the Johnson decision as being "poorly written" and one that "lends itself to being misapplied." Regardless of Plaintiff Venable's personal opinion concerning Johnson, the court believes that it provides the proper analytical framework for the resolution of this issue. The court notes that Plaintiffs do not cite any cases from the Supreme Court or the Fifth Circuit that are more on point than Johnson.
Assuming that Plaintiffs have alleged the deprivation of a First Amendment right, they must also establish all of the elements of the state law tort of malicious prosecution. Under Texas law, the elements of malicious prosecution of a civil claim are: (1) the institution of or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceedings; (5) termination of the proceeding in plaintiffs favor; and (6) special damages. Texas Beef Cattle Co. v. Green, 921 S.W. 203, 207 (Tex. 1996). The court determines that Plaintiffs have not established that they suffered special damages. The mere filing of a lawsuit (counterclaim in this instance) is insufficient to establish the special injury requirement. Id. at 208-09. In addition to the filing of a suit, there "must be some physical interference with a party's person or property in the form of an arrest, attachment, injunction, or sequestration." Id. at 209. Plaintiff Finlan states that the damage suits by DISD "made it impossible to borrow for investment" and that such suits "foreclosed a continuance of [his] home building career. He further states that he had to "abandon all political reform suits as a direct and proximate result of the legal assault" authorized by DISD. Finlan Affidavit at 2-3. Plaintiff Venable states he ceased "filing any additional pro bono publico actions" and ceased "attempting to use the court system as an instrument of political reform" because of the heavy burden placed on him to defend numerous lawsuits and counterclaims. He also states that, because of extensive preparation and attendance at court appearances, he was "unable to pursue a meaningful career," and that his "ability to make a living has been severely curtailed." He avers that his financial losses from curtailment of professional income and career advancement are in excess of $100,000. Venable also states that the lawsuits by DISD have "severely hampered" his ability to control his diabetes, which was diagnosed in August 1995, and that he suffered from repeated and increased bouts of depression after the first DISD lawsuit was filed against him in October, 1992. Venable Affidavit at b, c. The type of damages set forth by Plaintiffs simply does not meet the special injury requirement as required. Since Plaintiffs have not made the necessary showing of a special injury, their First Amendment claim necessarily fails.
4. Conspiracy Claim
Plaintiffs, in particular Finlan, through various pleadings, loosely make references to a conspiracy by Defendants to drive them from the courthouse by the filing of legal action against them. Liability may be imposed under § 1983 based upon a conspiracy; however, a conspiracy claim is not actionable unless there is an actual violation of § 1983. Kerr v. Lyford, 171 F.3d at 340-41; Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). A conspiracy by itself is not actionable under § 1983. Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990). The court has ruled that Plaintiffs have not established the violation of an actual constitutional right. Since there is no constitutional violation, there is no derivative conspiracy claim. Accordingly, there is no genuine issue of material fact regarding any claim of conspiracy, and all Defendants are entitled to judgment as a matter of law regarding this claim.
IV. Miscellaneous
Before the court are the following objections to summary judgment evidence:
1. Plaintiff Venable's Response and Objection to Defendant Dennis J. Eichelbaum'5 Second Motion for Summary Judgment, filed September 27, 1999;
2. Defendant Dennis J. Eichelbaum's Objections to the Evidence of Plaintiff Don Venable Submitted in Support of Venable's Response to Second Motion for Summary Judgment of Eichelbaum, filed October 8, 1999;
3. Objections to the Evidence of Finlan Submitted in Support of Finlan's Response to Eichelbaum, Friedman and Rich's Motion for Summary Judgment, filed October 8, 1999;
4. Objections to the Evidence of Venable Submitted in Support of Venable's Responses to Motion for Summary Judgment of Friedman, Rich and Reese, filed October 8, 1999; and
5. Defendant Dennis J. Eichelbaum's Objections to the Evidence of Plaintiff Richard Finlan Submitted in Support of Finlan's Response to Eichelbaum, Friedman and Rich's Second Motion for Summary Judgment, filed October 8, 1999.
The court has only considered summary judgment evidence which meets the appropriate legal standard under Fed.R.Civ.P. 56. Statements or "evidence" which merely express subjective beliefs, conjectures, opinions, conclusions, arguments, or assumptions without an evidentiary basis have been totally disregarded by the court. Likewise, inadmissible hearsay and irrelevant evidence were not considered by the court. Finally, any evidence which has not been properly authenticated or verified as required was excluded from consideration. In sum, the court disregarded "evidence" submitted by any party which was not competent summary judgment evidence. Accordingly, the objections lodged by all parties are overruled as moot.
Finally, the court did not address certain arguments or issues raised by the parties. If an argument or issue was not addressed by the court, the court did not believe the matter to be necessary in ruling on the motions for summary judgment.
V. Conclusion
For the reasons previously stated, there is no genuine issue of material fact regarding the claims raised by Plaintiffs Venable and Finlan, and all Defendants are entitled to judgment as a matter of law. Accordingly, the motions for summary judgment of all Defendants as set forth in the introductory paragraph of this opinion are granted. All claims of Plaintiffs are dismissed with prejudice. Judgment will be issued by separate document.
It is so ordered this 8th day of September, 2000.