Carlton v. Fearneyhough

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2008
No. 08-10028 Charles R. Fulbruge III
Summary Calendar Clerk
ALLEN CARLTON, JR
Plaintiff - Appellant
v.
DONALD STEELE, JR;
FAMILY DOLLAR STORES OF TEXAS LP
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
No. 4:05-cv-711
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Allen Carlton, Jr., appeals the district court’s grant of summary judgment
in favor of Donald Steele, Jr., and Family Dollar Stores of Texas, LP (“Family
Dollar”) on his claims for defamation and civil conspiracy under Texas law.
Finding no error, we affirm.
I. Facts and Procedural Background
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-10028
On November 3, 2004, Carlton arrived in the parking lot of the Family
Dollar store in Fort Worth, Texas, to meet a friend. On this same day a number
of individuals had assembled in the parking lot to protest the manner in which
Steele, the store manager, handled an alleged shoplifting incident one week
earlier. While waiting, Carlton remained in close proximity to the protestors
and struck up a conversation with one of them.
Inside the store, customers complained to Steele that the protestors had
become very loud and were engaging in harassing and threatening behavior. In
response to these complaints, Steele called the police to report a “disturbance”
and stated that “a black male . . . wearing a cream or white jacket [and] a knit
pullover cap” was one of the persons responsible for the customers’ complaints.
Although Steele did not identify Carlton by name, the description that he gave
matched that of Carlton.
Police officers responded to Steele’s call and consulted with Steele before
confronting the protestors. At this time, Steele reiterated customer complaints
about verbal harassment they experienced while attempting to enter the store.
The officers then confronted the protestors. Carlton was still standing with
them in the parking lot. After a brief conversation, the officers determined that
Carlton was the subject of an outstanding warrant and arrested him.
Carlton subsequently filed suit against the police officers, Steele and
Family Dollar, alleging violations of the Fourth and Eighth Amendments,
malicious prosecution, intentional infliction of emotional distress, negligence,
defamation, and civil conspiracy. The district court dismissed the claims against
the officers. This court affirmed. Carlton v. Fearneyhough, No. 07-10676, 2008
WL 686595 (5th Cir. Mar. 12, 2008) (unpublished).
In this appeal, Carlton challenges the district court’s judgment in favor of
the remaining defendants, Steele and Family Dollar.
II. Discussion
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No. 08-10028
We review a grant of summary judgment de novo, applying the same
standard as the district court. Greenwell v. State Farm Mut. Auto Ins. Co., 486
F.3d 840, 841 (5th Cir. 2007). Summary judgment may be granted only if there
exists no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). We view the record in the light most
favorable to the non-moving party and draw all justifiable inferences in the non-
movant’s favor as well. TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d
754, 759 (5th Cir. 2002).
Carlton argues that Steele defamed him by reporting to the police that he
was intimidating and threatening customers of Family Dollar. Under Texas law,
“[a] statement is defamatory if the words tend to injure a person’s reputation,
exposing the person to public hatred, contempt, ridicule, or financial injury.”
Austin v. Inet Technologies, Inc., 118 S.W.3d 491, 496 (Tex. App. 2003) (citing
Tex. Civ. Prac. & Rem. Code § 73.001). Carlton’s claim is one for slander
because it stems from alleged oral statements made by Steele. Id. “Slander is
a defamatory statement orally communicated or published to a third person
without legal excuse.” Burch v. Coca-Cola Co., 119 F.3d 305, 323 (5th Cir. 1997).
As Steele’s employer, Family Dollar may be held vicariously liable for any
slanderous statements made by Steele. Hooper v. Pitney Bowes, Inc., 895 S.W.2d
773, 777 (Tex. App. 1995).
Steele and Family Dollar respond that Steele’s statements are entitled to
a “qualified privilege” from liability because they were made to law enforcement
officials in the course of reporting a public disturbance in which he honestly
believed Carlton was involved.1 See Campbell v. City of San Antonio, 43 F.3d
973, 980 (5th Cir. 1995). Under Texas law, a speaker may be entitled to a
1
Alternatively, Steele and Family Dollar argue that Steele’s statements to the police
was not defamatory because they were true. Because we decide that Steele’s statements are
entitled to qualified immunity under Texas law, we do not reach this alternative argument.
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qualified privilege for “the communication of alleged wrongful acts to an official
authorized to protect the public from such acts” so long as the communication
was made “with proper motives and without actual malice.” Id. “The
communication is privileged unless made with the knowledge that . . . [i]t was
false or with reckless disregard for whether it was false.” Id. (quotation marks
omitted; alterations in original). This privilege is driven by the public policy
consideration that individuals must be able “to communicate with peace officers
the alleged wrongful acts of others without fear of civil action for honest
mistakes.” Id. (quoting Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ. App.
1977)).
We agree with the district court’s conclusion that Steele’s statements fall
within the range of communications contemplated under this qualified privilege.
Therefore, the burden was on Carlton to show that the privilege was lost “by
proving that the publication was made with malice or a want of good faith.”
Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex. App. 1984). Carlton
argues that Steele acted without good faith because: (1) Steele “has no witnesses
but himself” to support the assertion that Carlton was harassing customers in
the Family Dollar parking lot and (2) Steele lied when he told police that Carlton
was “mad at him” due to the shoplifting incident.2 As we discuss below, neither
of these arguments creates a fact issue regarding Steele’s good faith in relaying
customer reports of Carlton’s harassing behavior to the police officers.
First, Steele’s affidavit is competent summary judgment evidence. Fed.
R. Civ. P. 56(e)(1). We will not discount Steele’s account of what customers
relayed to him regarding Carlton’s actions and what motivated him to contact
the police on November 3, 2004, simply because he has not produced a
2
Because Carlton pursues this appeal pro se, we apply less stringent standards in
interpreting his arguments than we would in the case of a counseled party. Grant v. Cuellar,
59 F.3d 523, 524 (5th Cir. 1995).
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No. 08-10028
corroborating witness. Carlton must point to specific facts that would show a
genuine issue for trial. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). Simply asserting that Steele should produce additional
witnesses to support his arguments, even though competent evidence is already
present in the record, is not sufficient to carry this burden.
To the extent Carlton argues that the testimony of “interested witnesses”
should be met with some skepticism at the summary judgment stage, we agree.
However, “a motion for summary judgment cannot be defeated solely by
conclusional allegations that a witness lacks credibility.” Thomas v. Great Atl.
and Pac. Tea Co., Inc., 233 F.3d 326, 331 (5th Cir. 2001). Carlton argues that
Steele could not truthfully assert that Carlton was “mad at him” (which Steele
did when talking with police officers) while simultaneously maintaining that he
did not know Carlton and had never met him before the day of the parking lot
protest (which Steele states in his affidavit). Carlton reasons that one of these
statements must be a lie. Therefore, Carlton argues, because Steele was lying
about whether he knew Carlton, the court must “assume [Steele] would have the
propensity to tell another lie,” namely that Carlton was harassing customers.
Carlton’s argument breaks down upon an examination of the record.
There is no inherent conflict in Steele’s statements. An unknown individual in
the parking lot of the Family Dollar could give indications of being mad at Steele
simply based on customer complaints regarding Carlton’s behavior and Carlton’s
proximity to the protestors. Carlton concedes the protesters were angry at
Steele. Malice or a lack of good faith does not arise from these two statements,
which are not inherently contradictory. Even were we to accept Carlton’s
argument that he has exposed an inconsistency in Steele’s statements, which we
do not, it is the type of minor testimonial inconsistency that cannot defeat
summary judgment in light of the fact that Carlton has produced no evidence
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contradicting Steele’s version of the events. See O’Neal v. Cazes, 257 F. App’x
710, 714-15 (5th Cir. 2007) (unpublished) (citing Thomas, 233 F.3d at 331).
The record indicates that Steele relayed customer reports of harassing
behavior to law enforcement officials so that those officials could protect
members of the public from further harassment. The law presumes good faith
in this instance, Salazar, 682 S.W.2d at 630, and Carlton has not pointed to
record evidence that would overcome that presumption. For these reasons,
Carlton’s defamation claim was properly denied. Because Carlton cannot prevail
on his underlying tort claim against Steele and Family Dollar, his claim for civil
conspiracy necessarily fails. Meadows v. Hartford Life Ins., 492 F.3d 634, 640
(5th Cir. 2007); Tilton v. Marshall, 925 S.W.2d 672, 680-81 (Tex. 1996).
The judgment is AFFIRMED.
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