Carpenter v. King

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES H. CARPENTER, JR., )
)
Plaintiff, )
)
v. ) Civ. Action No. 10-1069 (ABJ)
)
COLBERT I. KING et al., )
)
Defendants. )
___________________________________ )
MEMORANDUM OPINION
In this civil action brought pro se, plaintiff sues Colbert I. King, columnist for The
Washington Post (“the Post”), for defamation. In addition, plaintiff purports to sue the
newspaper’s editor, senior editor, and owner, but he has listed them only as John Does I, II, and
III. Defendants King and the Post move jointly to dismiss the complaint under Rules 8(a) and
12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has filed a “contra-motion,”
accompanied by his declaration. Upon consideration of the parties’ submissions, the court will
grant defendants’ motion to dismiss under Rule 12(b)(6).
I. BACKGROUND
Plaintiff is a prisoner confined at the Federal Correctional Complex in Coleman, Florida.
His complaint arises out of three columns written by King concerning the death of a 29-year-old
District of Columbia native named Keith Barnes, who was murdered by other inmates from D.C.
while incarcerated in a federal prison. According to King’s May 23, 2009, article, which was
attached as Exhibit A to plaintiff’s complaint, Barnes was serving a sentence for second-degree
murder and conspiracy to commit armed robbery. He had entered a plea of guilty to those
1
charges and testified against his three co-defendants, one of whom was James Carpenter, the
plaintiff in this action.
King’s first column on the subject, published on May 21, 2005 (“A Witness Pays the
Price in Prison,” Exhibit C to the complaint), recounts the fact that Barnes was killed in a federal
penitentiary in Beaumont, Texas, and that he had long feared that his life would be in danger if
he was housed with other inmates from the District. The column reports on letters written to the
U.S. Bureau of Prisons on Barnes’s behalf by the Hon. Eleanor Holmes Norton, the
Congresswoman from D.C., and it tracked the history of where Barnes had been incarcerated and
how prison officials responded to the Congresswoman’s inquiries. The article does not mention
the plaintiff, and plaintiff does not allege that he was defamed by anything it said.
The second column, “Death Sentence, D.C. Style,” dated May 28, 2005 (Exhibit B to
plaintiff’s complaint), provides more detail that King attributes to three sources: a named Justice
Department official who had been the Assistant United States Attorney who prosecuted the case,
an unnamed homicide detective who was familiar with the case, and a spokesman for the Barnes
family. The article describes the robbery and murder of Israel “Dog” Jones and the roles played
by the various participants, and it includes what the former prosecutor had to say about Barnes’s
acceptance of responsibility and his decision to testify against his co-conspirators.
The column states that four men, including Barnes and the plaintiff, went to Jones’s
apartment to rob him, but they found the apartment empty when they got there. Plaintiff James
“Rat” Carpenter was identified in the column as the individual who “ordered two of the men to
go find Jones.” Once Jones was brought back to the apartment, King reports that Carpenter
“took him into the bedroom, brandished a gun, and asked him for the money.” Barnes was
frightened by the threats and was leaving the building when Jones was shot. King wrote that
Barnes “agreed to cooperate with the government in the prosecution of others, including
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Carpenter, who was allegedly responsible for other shootings in the city,” and added:
Carpenter, while in the D.C. jail awaiting trial for the Jones murder, was also
charged, on Sept. 24, 1997, with the April 7 stabbing death of another inmate, 19
year-old Quan Levonte Harris, also awaiting trial on a murder charge. Carpenter
pleaded self-defense and was later acquitted.
Exhibit B to Plaintiff’s Complaint at 2.
In the May 28, 2005, column, King recounts his conversation with the prosecutor, Peter
Zeidenberg, who was struck by Barnes’s remorse and decision to do the right thing. Zeidenberg
explained that the decision to testify “took courage because Barnes had received notes from
Carpenter threatening him and his family.” Id. at 2.
The third column, “Our Prison System vs. the Terrorists,” was published approximately
four years later, on May 23, 2009. It concerned a plan then under discussion to house detainees
from the military facility in Guantanamo Bay in federal penitentiaries. (Exhibit A to Plaintiff’s
complaint.) King was commenting on statements made by FBI Director Robert Mueller that
detainees could radicalize other prisoners and pose a danger to national security, and he repeated
the story of Kevin Barnes to illustrate his point that “[t]here’s precedent for dangerous inmates
getting their way in prison.” The column noted, “[a]ccording to court papers, Carpenter wrote
several letters to Barnes telling him he would be killed if he continued to cooperate.” King also
reports: “Last month, a Beaumont federal jury found Joseph Ebron of the District guilty of
restraining Barnes while another inmate, Marwin Moseley, also of the District, stabbed Barnes
106 times.” King notes that Barnes, his family, and a Member of Congress had placed federal
prison authorities on notice of the risk Barnes faced from other D.C. inmates. He concludes, “If
federal prison officials can be outfoxed by D.C. inmates, are they up to Al-Qaeda?”
Plaintiff brings this action in response to what he contends is the defamatory nature of the
three columns, particularly the last. His complaint alleges, “[o]n May 23, 2009, King “wrote a
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resummation of articles . . . concerning a D.C. native named Keith Barnes who was stabbed to
death in a federal prison[.]” Compl. ¶ 4. He alleges that King “named plaintiff as James ‘Rat’
Carpenter as finally carrying out the death threats” to Barnes. Id. Complaining that the
columns were “slanted to make plaintiff more dangerous than all international terrorist, and
above being controlled by the Federal Bureau of Prisons, the FBI, and any other law
enforcement,” id. ¶ 10, plaintiff filed the instant action on June 25, 2010. He claims that the
“false” statements jeopardize his efforts “to prove in a court of law that he is an innocent man
under the law [because] the judges of the court system read the Washington Post.” Id. Plaintiff
seeks a total of $4 million in compensatory and punitive damages from King and $2 million in
punitive damages from each John Doe defendant. Id. at 6.
II. DISCUSSION
1. Legal Standard
Defendants argue that the complaint should be dismissed under Rule 12(b)(6) for failure
to state a claim because plaintiff has neither pled the basic elements of libel nor shown that the
challenged statements are actionable. 1 “To survive a [Rule 12(b)((6)] motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face . . . . A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (internal
quotation marks and citations omitted); see Bell Atlantic Corp. v. Twombly, 555 U.S. 544, 555
1
Plaintiff casts his “Causes of Action” as “violations of the First and Fourteenth Amendments,
the laws of the United States and the District of Columbia.” Compl. at 5. As private actors,
defendants cannot be held liable for constitutional violations. See 42 U.S.C. § 1983 (authorizing
cause of action against individuals who violate constitutional rights while acting “under color of
any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia . . . .”). Hence, the only cognizable claim is for libel.
4
(2007) (a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level . . . .”) (citations omitted).
In considering a motion to dismiss for failure to state a claim, a court generally “must
accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551
U.S. 89, 94, (2007), and “grant plaintiff[] the benefit of all inferences that can be derived from
the facts alleged.” Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
However, the court need not accept a plaintiff's legal conclusions or the inferences he draws if
those inferences are unsupported by the alleged facts. Id. “Nor must the court accept legal
conclusions cast as factual allegations.” Id.; see Warren v. District of Columbia, 353 F.3d 36,
39-40 (D.C. Cir. 2004) (differentiating unacceptable conclusions of law from acceptable
conclusions of fact). And while “[a] pro se complaint . . . must be held to less stringent standards
than formal pleadings drafted by lawyers . . . even a pro se complaint must plead factual matter
that permits the court to infer more than the mere possibility of misconduct.” Ning Ye v. Holder,
644 F. Supp. 2d 112, 116 (D.D.C. 2009) (internal quotations and citations omitted).
In ruling on a Rule 12(b)(6) motion to dismiss, the court “may consider only the facts
alleged in the complaint, any documents either attached to or incorporated in the complaint[,]
and matters of which . . . judicial notice” may be taken. EEOC v. St. Francis Xavier Parochial
School, 117 F.3d 621, 624 (D.C. Cir. 1997).
2. The elements of defamation
To state a defamation claim, plaintiff must allege:
(1) that the defendant made a false and defamatory statement concerning the
plaintiff; (2) that the defendant published the statement without privilege to a
third party; (3) that the defendant's fault in publishing the statement amounted
to at least negligence; and (4) either that the statement was actionable as a
matter of law irrespective of special harm or that its publication caused the
plaintiff special harm.
5
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 858 (D.C. Cir. 2006) (quoting Beeton v.
District of Columbia, 779 A.2d 918, 923 (D.C. 2001)).
Falsity and defamatory meaning “are distinct elements of . . . defamation and are
considered separately.” White v. Frat. Order of Police, 909 F.2d 512, 520 (D.C. Cir. 1990).
“The burden of proving falsity rests squarely on the plaintiff, [who] must demonstrate either that
the statement is factual and untrue, or an opinion based implicitly on facts that are untrue.” Lane
v. Random House, 985 F. Supp. 141, 150 (D.D.C. 1995). It is an “absolute defense” to a
defamation claim if the statements are “substantially true.” Ning Ye, 644 F. Supp. 2d at 117.
Under District of Columbia law, “[a] statement is defamatory if it tends to injure []
plaintiff in his trade, profession, or community standing . . . by making him appear [to a
reasonable reader as] odious, infamous, or ridiculous.” Id. at 118 (internal quotation marks and
citations omitted) (first alteration in original); see White, 909 F.2d at 518 (“The usual test applied
to determine the meaning of a defamatory utterance is whether it was reasonably understood by
the recipient of the communication to have been intended in the defamatory sense.”) (quoting F.
Harper, et al., The Law of Torts § 5.4 (1986)) (emphasis omitted). 2 However, the alleged
2
Under judicially created doctrine, a plaintiff may be deemed “libel-proof” as a matter of law
when his “reputation is so diminished at the time of publication of the allegedly defamatory
material that only nominal damages at most could be awarded because the person’s reputation
was not capable of sustaining further harm . . . .” Lamb v. Rizzo, 391 F.3d 1133, 1137 (10th Cir.
2004) (citing, inter alia, Logan v. District of Columbia, 447 F. Supp. 1328, 1332 (D.D.C. 1978)).
The doctrine has also been applied where “true statements in a particular publication” have so
badly damaged a plaintiff’s reputation “that minor false accusations within the same publication
cannot result in further meaningful injury.” Guccione v. Hustler Magazine, Inc., 800 F.2d 298,
303 (2d Cir. 1986). This doctrine “is most often applied to plaintiffs with criminal convictions,”
Stern v. Cosby, 645 F. Supp. 2d 258, 270 (S.D.N.Y. 2009) (citation omitted), and with extensive
criminal histories. See Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 639 (2d Cir. 1975)
(“habitual criminal” with multiple convictions); Ray v. Time, Inc., 452 F. Supp. 618, 622 (W.D.
Tenn. 1976) (“convicted habitual criminal”); Wynberg v. Nat’l Enquirer, Inc., 564 F. Supp. 924,
928 (C.D. Cal. 1982) (“Criminal convictions with attendant publicity may make an individual
libel proof”) (citations omitted); but see Mattheis v. Hoyt, 136 F. Supp. 119, 124 (W.D. Mich.
1955) (“It is obvious that the publication of the article in question four years after plaintiff's
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defamatory statement is not considered in isolation but rather must be examined in the context in
which it appeared. See Moldea v. New York Times Co., 22 F.3d 310, 313-15 (D.C. Cir. 1994)
(Moldea II); Ning Ye, 644 F. Supp. 2d at 118-19.
Furthermore, merely alleging that a statement was defamatory is not enough. The
plaintiff must allege that the defendant “at least was negligent,” Vereen v. Clayborne, 623 A. 2d
1190, 1195 (D.C. 1993) (citing Phillips v. E vening Star Newspaper Co., 424 A. 2d 78, 80 (D.C.
1980)), because, as the Supreme Court has held, the First Amendment requires that states, while
“defin[ing] for themselves the appropriate standard of liability,” cannot “impose liability without
fault” in defamation cases. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). In actions for
actual damages, the District of Columbia applies a negligence standard: the plaintiff must allege
“a failure to observe an ordinary degree of care in ascertaining the truth of an assertion before
publishing it to others, i.e., a failure to make a reasonable investigation as to truth.” Kendrick v.
Fox Television, 659 A. 2d 814, 822 (D.C. 1995) (citations and internal quotation marks
omitted). 3
The Supreme Court has stated, “[a]t the heart of the First Amendment is the recognition
of the fundamental importance of the free flow of ideas and opinions on matters of public interest
conviction of the brutal murder of a young girl, even though it might have been in part untrue as
to his admission of guilt, certainly did not affect or damage his reputation, unless possibly among
his criminal associates in prison.”). Given Barnes’s reported testimony about plaintiff’s lead role
in the heinous crime (Compl. Ex. A) -- which plaintiff has not alleged to be false -- and
plaintiff’s resulting first-degree murder conviction and sentence of 50 years to life, it is highly
doubtful that plaintiff’s reputation could sustain any further harm from the alleged defamatory
statements published at least three years after his conviction. See Compl. Ex. A (indicating that
plaintiff was in BOP’s custody by February 2002).
3
Here, since the plaintiff also seeks punitive damages based on statements related to a matter of
public concern, his standard may be even higher: the courts have suggested that he must allege
the existence of actual malice. See Ayala v. Washington, 679 A. 2d 1057, 1063 n.3 (D.C. 1996).
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and concern.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988). And the courts in the
District of Columbia have been vigilant in upholding those principles.
If the First Amendment's guarantees of freedom of speech and of the press are to
ensure that these rights are meaningful not simply on paper, but also in the
practical context of their exercise, then a newspaper Op-Ed column discussing a
subject of public interest must surely be accorded a high level of protection, lest
the expression of critical opinions be chilled. This is so because “[t]he reasonable
reader who peruses [a] column on the editorial or Op-Ed page is fully aware that
the statements found there are not “hard” news like those printed on the front page
or elsewhere in the news sections of the newspaper. Readers expect that
columnists will make strong statements, sometimes phrased in a polemical
manner that would hardly be considered balanced or fair elsewhere in the
newspaper . . . .
Guilford Transp. Industries, Inc. v. Wilner, 760 A.2d 580, 582-83 (D.C. 2000) (quoting Ollman
v. Evans 750 F.2d 970, 986 (1984) (en banc) (plurality opinion), cert. denied, 471 U.S. 1127(1985)). Notwithstanding the high level of protection accorded to opinion pieces, “there is no
wholesale exemption from liability in defamation for statements of ‘opinion’.” Moldea II, 22
F.3d at 313 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)). Such statements “can
be actionable if they imply a provably false fact, or rely upon stated facts that are provably
false.” Id. Thus, this court must look closely at the challenged articles and not rule simply on
the ground that it is opinion pieces that are at issue.
3. Analysis
Plaintiff challenges statements contained in the second and third articles that King wrote
about the death of Keith Barnes. While the clear focus of both articles is what King describes as
a failure by the United States Bureau of Prisons, plaintiff contends that they were “false and
demeaning” as to him. Compl. at 1. As the Supreme Court explained in Iqbal, “a court
considering a motion to dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth.” 129 S. Ct. at 1950.
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“Where there are well pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to any entitlement to relief.” Id. Proceeding in that
fashion, the Court will dispense with further consideration of the conclusory introductory section
of the complaint.
While they are highly conclusory as well, the court will address seriatim the allegations
denoted as “Facts” in paragraphs 4 -11 of the complaint.
• In paragraphs 4 through 7, plaintiff takes issue with the May 23, 2009, column. In
paragraph 4, he alleges that the article named him “as finally carrying out the death
threats to Keith Barnes that the District of Columbia Court papers found plaintiff had
made,” and he states that “[t]here are no such court papers.” But the May 23, 2009 article
– which was attached to the complaint and therefore can be considered in ruling on the
instant motion -- specifically names two other people, and not the plaintiff, as the
individuals who carried out the murder of Keith Barnes. See Exhibit A to Compl. While
the article does state, “[a]ccording to court papers, Carpenter wrote several letters to
Barnes telling him he would be killed if he continued to cooperate,” and the court is
bound at this juncture to accept as true Carpenter’s allegation that “there are no such
court papers,” this alone does not suffice to state a claim for defamation. In opposing the
instant motion, plaintiff states under penalty of perjury that he did not threaten “Keith
Barnes[’] family or Keith Barnes [] [t]hat he would be killed if testifying [sic].” Pl.’s
Contra-Motion to the Def.’s Mot. to Dismiss [Dkt. # 12-1], Declaration By James H.
Carpenter, Jr., Under the Penalty of Perjury and With a Sound Mind (“Pl.’s Decl.”) ¶ 2.
However, King makes it clear in the columns that are appended to the complaint that in
reporting on the subject, he was relying, at least in part, on the prosecutor, who
specifically told him “Barnes had received notes from Carpenter threatening him and his
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family,” Exhibit B to Compl. The prosecutor told King that he had filed multiple
pleadings with the court on Barnes’s behalf detailing Barnes’s cooperation and the risks
that he faced, and King was also aware of a pending civil lawsuit about the matter. Id.Plaintiff has failed to allege that King was negligent or malicious in relying upon sources
with knowledge when he made reference to the court papers. So, as to this allegation, the
complaint lacks the necessary element of fault.
• Paragraph 5 of the complaint alleges that the “May 23, 2009 article placed plaintiff on the
same footing as the radical Gitmo Prisoners who are alleged terrorist.” This conclusory
allegation does not warrant further analysis, and in any event, the allegation does not
accurately characterize the May 23, 2009, column. In essence, King asked: if the U.S.
Bureau of Prisons was not even able to manage D.C. inmates, how could it be depended
upon to handle terrorists? 4 King’s point was not that plaintiff could or should be
compared to terrorists, but rather that the Bureau’s ability to oversee prisoners in general
was woefully deficient. But even if King had actually offered an opinion likening the
plaintiff to a dangerous terrorist, such a statement would not be actionable since it would
not be a statement of fact capable of being proved or rebutted. See Guilford, 760 A. 2d at
597 (quoting Washington v. Smith, 80 F. 3d 555, 556 (D.C. Cir. 1996)) (“A statement of
opinion is actionable only if it has an explicit or implicit factual foundation and is
therefore objectively verifiable”); id. at 596-7 (statements characterized as “rhetorical
hyperbole are not actionable in defamation because they cannot reasonably be interpreted
as stating actual facts about an individual.”) (citation and internal quotation marks
omitted).
4
As plaintiff himself notes in paragraph 7, “[t]he May 23, 2009 article questioned if the FBI
dealing with the plaintiff was up to dealing with Moslem Al-Qaeda.”
10
• Sandwiched between two paragraphs that concern what King wrote in the May 23, 2009,
article, paragraph 6 alleges: “That plaintiff had connections to reach into any U.S.
Penitentiary and call for a murder on 24-hour notice.” Assuming that plaintiff is alleging
that King made a statement to that effect in the May 23, 2009 article, the exhibits
attached to the complaint reflect that King did not do so. Nor did he explicitly write that
Carpenter had called for the murder. On May 23, 2009, King wrote: “D.C. inmates easily
tracked Barnes’s movements in the federal prison system. They alerted inmates when he
was headed to Florida. They sent word he was on the way to Beaumont, Tex. Within 24
hours of his arrival, D.C. inmates made him pay with his life.” Exhibit A to Compl. at 2
(emphasis added). Thus, the column does not specify whether D.C. inmates turned
against Barnes generally in light of his status as a cooperator or whether they were urged
to do so by the plaintiff. 5
• Paragraph 7 simply summarizes the May 23 article in a conclusory way, so under Iqbal, it
is “not entitled to the assumption of truth.” 129 S. Ct. at 1950. Furthermore, it does not
complain of a factual statement that could be verified or shown to be “provably false.”
See Guilford, 760 A. 2d at 596.
• Paragraph 8 does not identify any defamatory statements but simply alleges that King’s
articles were approved by the editors and owner of the Post.
5
It is true that a different column -- the May 29, 2005 article -- includes a quotation attributed to
the unnamed homicide detective concerning plaintiff’s ability to “get word through the prison
system” about Barnes, but plaintiff does not make any allegations about this particular statement
in his complaint. Absent allegations that the statement was false, and that it was negligently (and
in the case of plaintiff’s claims for punitive damages, maliciously) repeated by King, who was
relying upon information provided to him (and to the court) by knowledgeable law enforcement
personnel, it would not give rise to an action for defamation.
11
• In paragraph 9 of his complaint, plaintiff alleges that in the column published on May 28,
2005, King “wrote that [he] had killed a prisoner in jail, and was responsible for other
shootings in Washington, D.C. [and] claimed plaintiff was found innocent due to self-
defense, but the factual jury verdict was an acquittal.” This allegation paraphrases the
columns incorrectly and conflates two separate statements, neither of which is actionable.
First, King wrote that the witness against plaintiff, Keith Barnes, “owned up to his
involvement in the crime” and agreed “to cooperate with the government in the
prosecution of the others, including Carpenter, who was allegedly responsible for other
shootings in the city.” Exhibit B to Compl. (emphasis added). King then noted
parenthetically that plaintiff, “while in the D.C. jail awaiting trial for the Jones murder,
was also charged . . . with the April 7 stabbing death of another inmate . . . also awaiting
trial on a murder charge.” King added: “Carpenter pleaded self-defense and was later
acquitted.” Id. at 2 (emphasis added). Plaintiff admits that he was in fact charged with
murder as reported by King, but he states that he “did not plead self-defense, and the jury
found me not guilty.” Pl.’s Decl. ¶ 3. Even if King mischaracterized the specific nature
of the defense plaintiff advanced at his trial, the column is substantially true: it fairly
reports both that plaintiff was charged with, and acquitted of, the April 7 murder. See
Benic v. Reuters Amer., Inc., 357 F. Supp. 2d 216, 224 (D.D.C. 2004) (“A defendant can
defend against a plaintiff's defamation claim by demonstrating that the ‘gist’ of the
statement is true or that the statement is substantially true, as it would be understood by
its intended audience.”) (citing Moss v. Stockard, 580 A.2d 1011, 1023 (D.C. 1990)).
• In paragraph 10, plaintiff alleges generally that the three articles portray him as
dangerous: “more dangerous than all international terrorist, and above being controlled
by the Federal Bureau of Prisons, the FBI, and any other law enforcement.” He
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characterizes this portrayal as “false.” This allegation is too conclusory to defeat a
motion to dismiss for failure to state a claim on which relief can be granted, and based
upon the court’s review of King’s pieces, it is not a fair summarization. Even if this
allegation did accurately reflect King’s opinion, it does not identify the sort of factually
based statements that are actionable. See Moldea, 22 F. 3d at 316-17; Guilford, 760 A.
2d. at 599.
• In paragraph 11, plaintiff alleges that the articles are “false as to having any connection to
the death of Keith Barnes, having any control over D.C. prisoners, or that plaintiff is
factually guilty of the offense that he is in prison upon.” He complains that “[t]hese
articles have likely had some incorrect influence on the D.C. judiciary and right into the
D.C. Court of Appeals as an ongoing matter at the time of filing this complaint.” King’s
writings about the conviction for which plaintiff is now serving a sentence do not give
rise to a cognizable claim for defamation since the law is clear that news reports on
official court proceedings are privileged. See Oparaugo v. Watts, 884 A.2d 63, 81 (D.C.
2005) (citing Phillips v. Evening Star Newspaper Co., 424 A. 2d 78, 88 (D.C. 1980)).
Moreover, as indicated in note 2 above, the suggestion that the publication of the facts
underlying an earlier criminal conviction harmed plaintiff’s reputation does not state a
claim for relief that is plausible on its face. Furthermore, the Court notes that paragraph
11 is highly conclusory, and, it does not specify any actionable statements within the
articles to support this action. To the extent that plaintiff bases his claim on what he
believes to be the facts implied by King’s opinion, plaintiff fails to allege that King did
not exercise the proper level of care prior to publication, and in fact, the record reflects
that King interviewed and relied upon credible, knowledgeable sources of information.
Absent the necessary allegations of fault, plaintiff’s defamation claims are insufficient on
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their face.
• Finally, paragraph 12 of the complaint is both a conclusory and an inaccurate
characterization of the three articles. Plaintiff complains that they go “far beyond that
facts of the death of Keith Barnes, even attacking his sentencing judge as the government
and police see his sentence – as if plaintiff controlled the judge. All which is false and
demeaning.” Even assuming the articles did attack the sentencing judge – and the court
concludes that as a whole, they do not -- such an attack would not be defamatory as to the
plaintiff. Moreover, there is simply nothing in any of the articles suggesting that plaintiff
had any “control” over the sentencing court, so he was not defamed by any such
statement.
From the review above, the court determines that the complaint is not sufficient to raise a
plausible claim that the defendants made false and defamatory – and non-privileged -- statements
concerning the plaintiff. More important, the plaintiff has failed completely to allege any facts
that would supply the necessary element of fault.
CONCLUSION
For the foregoing reasons, and in reliance upon the parties’ submissions, the court
concludes that plaintiff has failed to establish the elements of his defamation claim. Therefore,
the court will grant defendants’ motion to dismiss for failure to state a claim upon which relief
can be granted. A separate, final order accompanies this Memorandum Opinion.
____________s/___________
AMY BERMAN JACKSON
DATE: June 17, 2011 United States District Judge
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