Opinion
No. 3-03-CV-1750-D.
February 25, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Barbara Owens has filed a motion for summary judgment in this pro se prisoner civil rights action brought under 42 U.S.C. §§ 1983 1985. For the reasons stated herein, the motion should be granted.
I.
Plaintiff Norman Wade Yoes, an inmate in the TDCJ-ID, claims to have knowledge of a methamphetamine distribution ring comprised of various small business owners and private security guards based in Duncanville, Texas. Because of his involvement in the drug ring and his role as an informant against members of the Aryan Brotherhood, two attempts have been made on his life. Plaintiff believes that Barbara Owens, an assistant manager at a 7-11 store in Arlington, Texas, is somehow involved in the plot to kill him. By this suit, plaintiff seeks $25,000 in compensatory damages and an opportunity to speak with federal prosecutors so criminal charges can be filed against the responsible parties.
Plaintiff also sued Mike Ayres, Robbie Waree, Gilbert Smith, Catherine Krans, and Taylor Young. ( See Plf. Am. Compl. at 3, ¶ IV). However, none of those defendants were served with process by the July 16, 2004 deadline established by the court.
Owens now moves for summary judgment as to all claims and causes of action. The issues have been briefed by the parties and the motion is ripe for determination.
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). However, conclusory statements, hearsay, and testimony based on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
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).
III.
Although his pro se complaint is less than a model of clarity, it appears that plaintiff attempts to sue Owens for civil rights violations under 42 U.S.C. §§ 1983 1985. Owens moves for summary judgment on three grounds: (1) plaintiff has failed to allege the violation of a federal constitutional or statutory right; (2) she was not acting "under color of state law;" and (3) there is no evidence of a civil rights conspiracy motivated by class-based animus. The court will consider these arguments in turn.
A.
The gravamen of plaintiff's complaint is that Owens conspired with other private citizens and law enforcement officers to kill him. Assuming arguendo that such conduct violates a federal constitutional or statutory right, plaintiff cannot maintain a cause of action under 42 U.S.C. § 1983 unless the defendant acted "under color of state law." See West v. Atkins, 487 U.S. 42, 48-49, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988).
Plaintiff does not reference any provision of the United States Constitution allegedly violated by Owens and her co-conspirators. To the extent this claim is predicated on a violation of 18 U.S.C. § 241, a criminal statute prohibiting two or more persons from conspiring "to injure, oppress, threaten, or intimidate any person in any State," that statute does not create a specific "right, privilege, or immunity." See Haffke v. U.S. Attorney General, 2002 WL 122521 at *2 (N.D. Tex. Jan. 11, 2002) (Kaplan, J.), citing Hanna v. Home Insurance Co., 281 F.2d 298, 303 (5th Cir. 1960), cert. denied, 81 S.Ct. 751 (1961) (section 241 is criminal in nature and provides no civil remedies). Consequently, plaintiff cannot base his section 1983 claim on a violation of that statute. See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989).
Plaintiff tacitly concedes that Owens is not a state actor. Nevertheless, he contends that she is liable under section 1983 as "a willful participant in joint activity with the state or its agents[.]" (Plf. MSJ Resp. at 2). The Supreme Court has recognized that:
Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.Adickes v. S.H. Kress Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605-06, 26 L.Ed.2d 142 (1970), quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). To establish "joint activity," plaintiff must present evidence that Owens acted in concert with a state actor and that some overt act was done in furtherance of the conspiracy which resulted in the deprivation of a constitutional right. See Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.), cert. denied, 115 S.Ct. 189 (1994).
In an attempt to create a fact issue for trial, plaintiff alleges that Owens bragged "many times" to unidentified persons that she has agents "on the take." (Plf. MSJ Resp. at 2). Among her reputed contacts are four Tarrant County jailers, Arlington Police Detective Tom Lenoir, and Fort Worth Police Officer Brad Johnson. Although the precise nature of their relationship is difficult to decipher, plaintiff apparently believes that Owens conspired with these officers to kill him because he acted as an informant to the federal government against the Aryan Brotherhood. Plaintiff maintains that Owens and Lenoir were present in Arcadia Park when an attempt was made on his life. He also accuses Owens of powdering "speed" at her Arlington residence and engaging in other unspecified corrupt and illegal activities with local law enforcement officers. ( See id. at 2-5). For her part, Owens denies participating in a conspiracy to kill plaintiff. (Def. MSJ App. at 37, ¶¶ 1-3). She claims no knowledge of any incident at Arcadia Park or a "meth ring" based in Duncanville, Texas. ( Id. at 38, ¶¶ 8, 13). Owens states that she does not associate with members of the Aryan Brotherhood and does not know any narcotics agents, security guards, or police officers who worked at the Tarrant County jail. ( Id. at 37-38, ¶¶ 7, 15-17).
The court initially observes that the conclusory allegations contained in plaintiff's rambling, eight-page summary judgment response do not suggest, much less prove, an agreement between Owens and one or more state actors to deprive him of a constitutional right. "While [plaintiff] need not produce direct evidence of a meeting of the minds, [he] must come forward with specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective." Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996). Stated differently, in order to survive summary judgment, the evidence presented by plaintiff must reasonably lead to the inference that Owens and one or more state agents positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan. Id.; see also Abercrombie v. City of Catoosa, Okl., 896 F.2d 1228, 1230-31 (10th Cir. 1990); Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). Here, plaintiff has shown only that Owens may know some jailers and police officers who had reason to kill him. There is no evidence of any agreement between Owens and these state actors to commit murder. Nor does plaintiff allege any overt acts in furtherance of the conspiracy. Without such evidence, plaintiff cannot demonstrate that Owens was a willful participant in joint activity with the state.
Moreover, even if the outlandish allegations made by plaintiff were sufficient to create a fact issue for trial, his unsworn response and the unauthenticated hearsay documents attached thereto are not competent summary judgment evidence. See King, 31 F.3d at 346 (refusing to permit pro se litigant to rely on unverified pleading and unauthenticated documents to defeat summary judgment); Hicks v. Brysch, 989 F.Supp. 797, 807 (W.D. Tex. 1997) (same). The only verified pleading filed by plaintiff in this case is his amended complaint dated August 16, 2003. No facts alleged in that complaint establish a conspiracy between Owens and state agents to kill plaintiff. Consequently, Owens is entitled to summary judgment on this ground.
Plaintiff's amended complaint and 26-page attachment contain only conclusory allegations of a conspiracy. Illustrative are statements such as "Barbara [Owens] does have officers in the police field on her pay roll" and "Barbara Owens, in fact, has officer in Tarrant County Jail that works with this ring." ( See Plf. Am. Compl., Attch. E at 1, 5).
B.
Plaintiff also sues under 42 U.S.C. § 1985. This statute 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). Even if plaintiff could show that Owens 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. See Gant v. Principi, 2004 WL 2988549 at *3 (N.D. Tex. Dec. 27, 2004) (Kaplan, J.).
Section 1985 also creates a cause of action for: (1) a conspiracy to prevent a public official from performing his duty; and (2) a conspiracy to obstruct justice or intimidate a party, witness, or juror. Holdiness, 808 F.2d at 424. These types of conspiracies are not implicated by plaintiff's complaint.
RECOMMENDATION
Defendant's motion for summary judgment should be granted in its entirety. All claims against Barbara Owens should be dismissed with prejudice. The claims against all other defendants should be dismissed without prejudice for failure to effect service of process in a timely manner. See FED. R. CIV. P. 4(m).