Opinion
3:01-CV-0861-R
August 18, 2001
MEMORANDUM OPINION AND ORDER
On May 7, 2001, Plaintiff, Loretta Anderson, filed suit as a pro se litigant against the City of Dallas and eight individuals pursuant to 42 U.S.C. § 2000e (Title VII); 42 U.S.C. § 1981, 1983, and 1985; 42 U.S.C. § 12101 et seq. (the ADA); and Texas common law. Now before this court are motions to dismiss by Defendants Madoka Armstrong and Dr. Melvyn Berke, filed on August 9, 2001. For the reasons stated below, Dr. Berke's Motion to Dismiss is GRANTED and all claims against him are DISMISSED WITH PREJUDICE. Madoka Armstrong's Motion to Dismiss is GRANTED IN PART and DENIED IN PART and all claims against her arising under 42 U.S.C. § 1985 are DISMISSED WITH PREJUDICE.
Background
Plaintiff's claims stem from the termination, and the events leading to the termination, of Plaintiff's employment with the City of Dallas. Plaintiff's claims against Defendants Armstrong and Berke arise from the City's decision to place the Plaintiff on Administrative Leave so that she could undergo an assessment for fitness of duty, including a psychological examination. The psychological examination was to be conducted by the Holiner Psychiatric Group, where Madoka Armstrong is a Psychiatric Mental Health Nurse Practitioner. The Holiner Psychiatric Group retained Dr. Melvyn Berke, a clinical psychologist, to administer and interpret an MMPI-2 evaluation of the Plaintiff.
Plaintiff refused to voluntarily submit to a psychological examination, and thus she was ordered to attend the evaluation with Dr. Berke by Bruce Meeks, Assistant Director of Communication and Information Services for the City of Dallas. At the evaluation, Dr. Berke asked the Plaintiff to sign a medical release form so that the results of the evaluation could be provided to the Holiner Psychiatric Group, to be included in its comprehensive evaluation of the Plaintiff. The Plaintiff initially refused to sign the release, and when she eventually signed it, she added the notation, "see attached order." The order attached was the above-referenced order from Bruce Meeks.
Dr. Berke then began to interview the Plaintiff. Dr. Berke claims that before he completed the interview, the Plaintiff demanded that he give her the results of his evaluation. Dr. Berke explained that he had to complete the interview and interpret the results before he could make any findings. According to the Defendants, the Plaintiff then called the City of Dallas and she and Dr. Berke spoke with City officials, discussing the fact that she would not complete the interview, as well as the fact that by adding "see attached order," to her medical release form, she had rendered the release useless. After speaking with City representatives, the parties were unable to agree on how to next proceed, so the Plaintiff ended the interview.
On June 1, 2000, Defendant Armstrong, who had been present during the Plaintiff's evaluation, wrote a letter to the City of Dallas containing the following statements:
Although she [the Plaintiff] did agree to sign a release of information from our offices to the City of Dallas, she stated that she would not change the "added" designation of "order attached" from the release to Melvin Berke, Ph.D. She verbalized awareness that Dr. Berke would not release the psychological testing requested by this office for a complete Fitness for Duty Evaluation with this designation. She verbalized awareness that she knew that we would not be able to include this finding in our evaluation without the information for Dr. Berke's office. Ms. Anderson repeatedly stated, "I am under order from the City of Dallas. This is under duress."
(Plf.'s Ex. A.) On June 27, 2000, the City of Dallas terminated Plaintiff's employment. The Plaintiff appealed her termination and was granted an administrative hearing. At this hearing, Dr. Berke testified that he informed the Holiner Psychiatric Group that he did not have a valid release of information form for the Plaintiff and thus he would be unable to send the Group, or anyone else, the results of his evaluation. In addition, Dr. Berke testified that the Plaintiff refused to sign the release form, but that she later signed an "altered release" in which she added "something to the affect [ sic] `I am under duress' or `I have been ordered by a party.'" (Plf.'s Ex. D.) Dr. Berke added that although he did not recall exactly what the Plaintiff said, she was basically stating that she wasn't going to sign the release under her own volition and as a result, Dr. Berke believed the release was invalid.
Discussion
I 12(b)(6) Standard of Review
"A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Piraino v. United States Postal Service, 69 F. Supp.2d 889, 894 (E.D. Tex. 1999) (quoting, Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Because of this high standard, "[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Kaiser Aluminum Chem Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citation omitted). In ruling on a 12(b)(6) motion the district court must accept the truth of the plaintiff's allegations or rely upon only those matters outside of the pleadings with respect to which there is no genuine issue of fact. See Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1249 (5th Cir. 1985). Moreover, the allegations set forth in the complaint should be construed liberally in favor of the plaintiff. See Kaiser Aluminum Chem Sales, Inc., 677 F.2d at 1050 (citing, e.g., Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)). When the plaintiff is pro se, pleadings should be held to less stringent standards than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
II Motions to Dismiss the Plaintiff's Defamation Claims
Plaintiff's Original Complaint was not clear regarding which statements by Defendants Berke and Armstrong were allegedly defamatory, and whether the specific theory of defamation was slander or libel. However, Plaintiff's Response to the Defendants' Motions reveals that her claim against Defendant Berke is based on slander, while her claim against Defendant Armstrong is based on libel. Moreover, Plaintiff's Response, and the exhibits attached, reveal that it is the testimony given by Defendant Berke at the Plaintiff's Administrative Hearing, and the letter written to the City of Dallas by Defendant Armstrong, on which she bases her claims. Because the Plaintiff is pro se, this court will consider the information contained in her Response in evaluating these motions.
A Dr. Berke's Testimony
In order to state a cause of action for slander, the Plaintiff must allege: 1) a false; 2) oral defamatory statement; 3) published to a third person without legal justification or excuse; 4) with reference in the statement to the Plaintiff; 5) that causes harm. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995);Reeves v. Western Co. of North America, 867 S.W.2d 385, 393 (Tex.App.-San Antonio 1993, writ denied). An oral statement is defamatory if it tends to harm the reputation of another as to lower her in the estimation of the community, or tends to expose her to public hatred, contempt or ridicule. See Hardwick v. Houston Lighting Power Co., 881 S.W.2d 195, 197 (Tex.App. — Corpus Christi 1994). In addition, the defamatory statement must be a false statement of fact, it cannot be an opinion. See A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 79 (Tex.App. — Forth Worth 1982).
Even the most liberal construction of the Plaintiff's allegations fails to support a claim of slander against Dr. Berke for his testimony at the Plaintiff's Administrative Hearing. First, there is no allegation that the testimony is false, either in her Complaint or in her Response. Moreover, Plaintiff's own recitation of the facts demonstrates that the testimony was, in fact, an accurate description of the events that transpired. Lastly, and most important, under Texas law, statements made during judicial or quasi-judicial proceedings may not serve as the basis for a defamation claim. See Putter v. Anderson, 601 S.W.2d 73, 76-77 (Tex.App.-Dallas 1980) (holding that the Internal Affairs Division of the police department of the City of Dallas is a quasi-judicial body); see also Odeneal v. Wofford, 668 S.W.2d 819, 820 (Tex.App.-Dallas 1984);Regan v. Guardian Life Ins. Co., 166 S.W.2d 909, 912 (Tex. 1942). Therefore, Plaintiff's defamation claim against Defendant Berke must be dismissed.
B Madoka Armstrong's Letter
Libel is "defamation that is expressed in written or other graphic form" that tends to do one or more of the following: 1) blacken the memory of the dead; 2) injure a living person's reputation and expose the person to public hatred, contempt, ridicule, or financial ruin; 3) impeach any person's honesty, integrity, virtue, or 4) public a person's natural defects so as to expose that person to public hatred, ridicule, or financial ruin. Tex. Civ. Prac. Rem. Code § 73.001. Defendant Armstrong argues that the statements made in her letter are not defamatory as a matter of law and that they "clearly do not have any defamatory meaning." (Def.'s Rep. p. 4.) However, the Defendant does not expand beyond this conclusory statement, and an examination of the letter itself demonstrates that it is possible for these statements to have had a defamatory meaning to letter's recipients.
The letter in question states, "She (the Plaintiff) verbalized awareness that Dr. Berke would not release the psychological testing requested by this office for a complete Fitness for Duty Evaluation with this designation. She verbalized awareness that she knew that we would not be able to include this finding in our evaluation without the information for Dr. Berke's office." (Plf.'s Ex. A.) This statement could easily be interpreted to mean that the Plaintiff was purposefully undermining a process that she had been ordered to engage in by her employers, an interpretation that could have resulted in harm to the Plaintiff's reputation. Thus, Defendant Armstrong has failed to demonstrate that her letter is not defamatory as a matter of law.
Additionally, the Plaintiff has alleged that Defendant Armstrong's letter is false. Although there are statements in the letter which are in accord with the Plaintiff's account of her psychological evaluation, the statements regarding what the Plaintiff "verbalized" are not supported by the Plaintiff's own account. Therefore, there is a possibility that the Plaintiff could prove that these statements are false. Defendant Armstrong's Motion to Dismiss the defamation claim must therefore be denied.
II Motions to Dismiss the Section 1985 Claims
Plaintiff has also filed claims against both Defendant Armstrong and Defendant Berke under sections 1985(2) and 1985(3) in connection with their participation in her psychological evaluation and their statements regarding her actions during the evaluation. Section 1985 creates a cause of action for conspiracies to deprive a person of his or her civil rights. 42 U.S.C. § 1985. Section 1985(2) addresses conspiracies to interfere with proceedings in federal court, while section 1985(3) addresses conspiracies to deprive a person of the equal protection of the law, or equal privileges and immunities under the law, when such conspiracies are motivated by racial animus. See Deubert v. Gulf Federal Savings Bank, 820 F.2d 754, 757 (5th Cir. 1987) (citing, Daigle v. Gulf States Utilities Co., Local 2286, 794 F.2d 974, 978-79 (5th Cir. 1986); Eitel v. Holland, 787 F.2d 995, 1000 (5th Cir. 1986); Rayborn v. Mississippi State Board of Dental Examiners, 776 F.2d 530, 532 (5th Cir. 1985)). Plaintiff's specific conspiracy theory is that Defendants Berke and Armstrong conspired with the other named defendants to deprive her of her employment with the City of Dallas in retaliation for the Plaintiff's history of filing federal lawsuits against the City.
A Plaintiff's Section 1985(2) Claims
Both Defendants argue that Plaintiff's claims under section 1985(2) should be dismissed because the Plaintiff failed to allege a sufficient nexus between the purported conspiracy and a federal court proceeding. The federal court nexus under section 1985(2) requires an assertion that the Plaintiff was injured on account of having attended or testified in federal court. See Deubert, 820 F.2d at 758 (citing,Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 348 (5th Cir.) (en banc), cert. denied, 454 U.S. 1110, 102 S.Ct. 687, 70 L.Ed.2d 651 (1981)). Neither the Plaintiff's Complaint, nor the supplemental material provided in her Response includes an allegation that the alleged retaliation had any connection to her attendance or testimony in federal court. Therefore, the 1985(2) claims must be dismissed.
B Plaintiff's Section 1985(3) Claims
Both Defendants argue that Plaintiff's claims under section 1985(3) should be dismissed as well because the Plaintiff has failed to allege that the purported conspiracy was motivated by racial animus. "[I]t is well-established in this circuit that the only conspiracies actionable under section 1985(3) are those motivated by racial animus."Deubert, 820 F.2d at 758 (citing, Daigle, 794 F.2d at 978-79; Eitel v. Holland, 787 F.2d 995, 1000 (5th Cir. 1986); Rayborn v. Mississippi State Board of Dental Examiners, 776 F.2d 530, 532 (5th Cir. 1985)). While a liberal reading of the Plaintiff's Complaint could encompass allegations of race-based animus on the part of the City of Dallas in its participation in the alleged conspiracy, there are no allegations whatsoever, either in the Complaint or the Plaintiff's Response, that either Defendant Armstrong or Defendant Berke acted with race-based animus in their role in the alleged conspiracy. Therefore, the 1985(3) claims must be dismissed.
Plaintiff's Complaint states, "Defendant City of Dallas routinely forced Blacks as a class to take fitness for duty exams and forced them to sign medical releases involuntarily with threats of being fired." (Plf's. Orig. Com. p. 16).
C Civil Conspiracy Claims
The Defendants' Motions also address the absence of evidence in support of a claim of civil conspiracy under Texas common law. The Defendants raised this issue in the event that this court interprets the Plaintiff's claims under section 1985 to encompass a cause of action for civil conspiracy. Although the Plaintiff's Response includes a section explaining why she believes sufficient evidence exists to support a civil conspiracy claim, there is no indication in the Complaint that the Plaintiff intended to rely on this separate legal theory. Although this is a pro se complaint, this court cannot expand its reading to such an extent as to assume the existence of claims that were simply not pled. Therefore, this court will not address the issue of civil conspiracy.
III Defendant Armstrong's 12(b)(5) Motion to Dismiss
Both Defendants have also filed motions pursuant to Federal Rule of Civil Procedure 12(b)(5) for improper service of process. Because this court has granted Defendant Berke's Motion to Dismiss for failure to state a claim, it need only address Defendant Armstrong's Motion to Dismiss for improper service of process.
While the Plaintiff may not have proof that she complied with the precise requirements for service of process, her status as a pro se Plaintiff permits this court to afford more leeway than that which might normally be granted. See Haines, 404 U.S. at 520. Both parties agree that the Defendant received a copy of the summons and complaint via certified mail, return receipt requested, and by filing this Motion, the Defendant demonstrates that she clearly has notice of the claims against her. While the Plaintiff may not be able to prove that she complied with the service requirements, the Defendant is unable to disprove that fact. Therefore, this court will assume that this pro se plaintiff effected a proper service of process. Defendant Armstrong's Motion to Dismiss pursuant to Rule 12(b)(5) is denied.
Conclusion
For foregoing reasons, Dr. Berke's Motion to Dismiss is GRANTED and all claims against him are DISMISSED WITH PREJUDICE. Madoka Armstrong's Motion to Dismiss is GRANTED IN PART and DENIED IN PART and all claims against her arising under 42 U.S.C. § 1985 are DISMISSED WITH PREJUDICE.
It is so ORDERED.