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concluding that under Texas state law the Rule 202 proceeding in dispute did not constitute a civil action and dismissing claim for malicious prosecution based on it
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Civil Action No. 3:00cv1864-AH.
August 8, 2001.
MEMORANDUM OPINION AND ORDER
Pursuant to the written consents of the parties to proceed before a United States Magistrate Judge, and the District Court's Order of Transfer in accordance with 28 U.S.C. § 636(c) filed on October 23, 2000, came on this day to be considered Defendants' Motion for Summary Judgment filed on June 18, 2001, and Plaintiffs' Response filed on July 18, 2001, and Defendants' Reply thereto, filed on August 2, 2001, and the court finds and orders as follows:
Statement of the Case: This is a civil rights action brought pursuant to 28 U.S.C. § 1331, federal question jurisdiction, and 28 U.S.C. § 1367, supplemental jurisdiction. Plaintiff Edgar Linzy ("Linzy") is the parent of a former student of Defendant Cedar Hill Independent School District (the "District"). Defendant Dr. James Rueter ("Rueter") was the Superintendent of the District at the time Linzy's child was enrolled as a student in the District. Defendants Fran Ruben, Judy Shaw, Pam Frost, David Smoot and Al Trostman were members of the District's Board of Trustees ("Board Members") at the time that Linzy's child was a student.
Factual Background: Linzy asserts that a number of problems arose during his son's attendance at the District's schools (Amended Complaint at 3). He attempted to bring those problems to the District's attention, even complaining to its Board of Trustees, but allegedly received no help for his son ( Id.). He alleges that while trying to get help for his son, he "completely by chance found that illegal practices were going on at the District" including falsification and submission of false and misleading documents ( Id.). Linzy tried to bring this to the District's attention, but was ignored. He believed that he could not seek redress from the Defendants since Dr. Rueter was allegedly involved in the illegal activities, so he began to write letters to members of Congress and to several Texas state agencies regarding the purported illegal activities. ( Id.)
According to Linzy, the Defendants learned of his complaints in March 1999 and started a "series of retaliatory, malicious, and illegal actions" against him. In April 1999, they "illegally and for their own personal gain", renegotiated Dr. Rueter's contract as superintendent to pay for his personal attorney's fees (even if not related to District business) ( Id.) He alleges the Board Members collectively approved spending taxpayer dollars for a private lawsuit by Dr. Rueter. After this approval and Rueter's new contract took effect, Dr. Rueter filed an "exploratory lawsuit" alleging slander against Plaintiff and his wife ( Id. at 3-4). As a result of this "lawsuit", Linzy was deposed in an attempt to pry out any documentation he might have of illegal activities (Id. at 4).
Defendants assert that they believed that some of the letters Linzy was sending to various public officials contained defamatory statements about the District, Dr. Rueter and the Board members. Thus, on June 21, 1999, the Board Members passed a resolution authorizing payment of legal fees for a petition to investigate claims pursuant to Texas Rule of Civil Procedure 202 with respect to Plaintiff and his wife. The petition, filed on behalf of Dr. Rueter, requested a state court order authorizing the depositions of Plaintiff and his wife in order to investigate the potential for a defamation suit against Plaintiff and his wife based on numerous statements they had made to third parties. This petition is what Linzy denominates as the "exploratory lawsuit" or the "lawsuit" brought against him by the Defendants. Prior to authorizing the payment of legal fees, the Board Members were aware of Plaintiff's prior history of writing defamatory statements to third parties about the District, Dr. Rueter and the Defendants. The petition was granted by the 116th Judicial District Court of Dallas County, Texas on June 28, 1999. The depositions took place on July 20 and 21, 1999, pursuant to the court's order. ( See Defendant's Appendix ("Def. App."), Exhs. 1 and 2).
On August 2, 2000, Plaintiff filed his original complaint in state court, alleging violations of his First Amendment rights to free speech by the District, and state law claims of malicious prosecution and intentional infliction of emotional distress against the individually named defendants. The District removed the case to federal court on August 25, 2000, based on federal question jurisdiction. Plaintiff filed his First Amended Original Complaint in this court on September 26, 2000. Defendants' motion for summary judgment and Plaintiff's response thereto followed.
Plaintiff asserts that if the District is not liable under immunity principles, then the individual defendants are liable because they acted outside their scope of authority in authorizing the petition to investigate. Alternatively, if the Defendants were acting within their scope of authority and thus immune from suit under state law, then the District violated his First Amendment rights.
Standard of Review: Summary judgment is proper when pleadings and the evidence on file, along with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. PROC. 56(c). The party moving for summary judgment bears the burden of producing evidence to establish that there is no genuine issue of material fact with regard to an essential element of the nonmovant's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). Once the movant produces such evidence, the burden shifts to the nonmovant to produce evidence establishing each of the challenged elements of his case for which he will have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). In responding, the nonmovant must set forth specific facts which demonstrate that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). Otherwise, summary judgment in favor of the movant is appropriate. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.), cert denied, 506 U.S. 825, 113 S.Ct. 82 (1992).
Plaintiff's claims against the Cedar Hill Independent School District: The District asserts it is entitled to summary judgment because Plaintiff's allegations do not involve a violation of his First Amendment rights and he has suffered no adverse impact. First, Linzy claims that the District violated his First Amendment rights to free speech by paying for the legal fees for the Rule 202 petition. Linzy asserts that the action taken by the Board — as final policy-making authority for the District — was a policy which caused the curtailment of his free speech. Even if he were able to prove that the Board's action was a "policy", he cannot show that it resulted in an actual deprivation of his constitutional right to free speech, i.e., the "policy" or action of filing the Petition "chilled" or intimidated his speech. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793 (1991) (plaintiff must show that government action violated a constitutionally protected right); Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992) (". . . the success of an attempt to deprive an individual of constitutional rights is critical to whether those rights have been violated.") (citing Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir. 1989) ("To show a First Amendment violation in this context [plaintiff] must alleged that his speech was in fact chilled or intimidated."); Dooley v. Reiss, 736 F.2d 1392, 1394-95 (9th Cir.) (where government officials conspired unsuccessfully to prevent plaintiff from exercising First Amendment right, there was no redressable constitutional violation because of the absence of an actual constitutional deprivation), cert. denied, 469 U.S. 1038, 105 S.Ct. 518 (1984); Spear v. Town of West Hartford, 954 F.2d 63,67 (2d Cir. 1992) (editor who alleged that RICO lawsuit by town chilled his First Amendment right to free speech did not state claim under Section 1983 because he failed to allege chilling effect with sufficient particularity)).
The summary judgment evidence demonstrates that throughout the process attendant to the petition to investigate, Plaintiff's speech was not curtailed. When asked what the District had done to keep him from writing any letter he wanted to write, the only action Linzy could identify was the filing of the petition to investigate claims. See Def. App. at 36-37 (Linzy Deposition ("Dep.")). When asked directly what the District had done to prohibit or limit his First Amendment free speech rights, Linzy admitted, "I don't know exactly." Def. App. at 37-39 (Linzy Dep.). In fact, when given an opportunity, Plaintiff could not think of any speech he would like to make but has not. Def App. at 39 (Linzy Dep.). He continued to write letters to various government officials and communicate with the media about his allegations of wrongdoing by Dr. Rueter. Def. App. at 10 (Rueter Aff.); 50 (Linzy Dep.). Since his Rule 202 deposition, taken in the Summer of 1999, Linzy has authored and sent at least one lengthy document to the United States Justice Department, complaining about the District. See Def. App. at 50-51 (Linzy Dep.). Plaintiff cannot show that his speech was curtailed as a result of the Rule 202 proceeding.
See pp. 6-7, infra.
Linzy also asserts that the Defendants' action in filing the petition was taken in retaliation for his exercise of his First Amendment rights. In order to establish a viable claim of First Amendment retaliation, Plaintiff must prove that: (1) the District was acting under state law; (2) Linzy's activities were protected by the First Amendment; and (3) that Linzy's First Amendment activities were a substantial or motivating factor for the action taken. Rolf v. City of San Antonio, 77 F.3d 823, 827 (5th Cir. 1996).
As noted above, a non-movant has the burden of producing evidence on each element of his claim on which he has the burden of proof by setting forth specific facts demonstrating the existence of genuine issues of fact. With reference to Linzy's retaliation claim against the District, he is required to produce some evidence from which a fact finder could conclude that the Board's motivation in authorizing the Rule 202 petition to be filed was in retaliation against Plaintiff for having exercised his right of expression under the First Amendment. No competent evidence showing an unlawful motivation on the part of the District's board has been presented and therefore the District's motion for summary judgment on Plaintiff's retaliation claim will be granted as well.
Plaintiff's claims against Defendants sued in their individual capacities: Pursuant to this court's supplemental jurisdiction, Plaintiff also seeks to recover damages against James Rueter and the members of the District's Board of Trustees in their individual capacities. Specifically Plaintiff seeks damages on his state law claims of malicious prosecution and of intentional infliction of emotional distress.
The individual Defendants have moved for summary judgment on the basis that Plaintiff cannot establish the existence of genuine issues of fact on each element of his state law claims and alternatively that each is immune from a suit for damages under Texas state law.
In order to prove an action for malicious prosecution, a Plaintiff must establish the following elements: (1) the institution or continuation of civil proceedings against a 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 proceeding; (5) termination of the proceeding in the plaintiff's favor; and (6) special damages. Texas Beef Cattle Co. v. Green, 921 S.w.2d 203, 207 (Tex. 1996). A party seeking to recover on a malicious prosecution claim must strictly adhere to the elements of the cause of action. Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 566 (Tex.App.-Dallas, 2000, no writ) (citing to Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288, 291 (Tex. 1994) (underlying criminal case).
Plaintiff's reliance on Texas Beef Cattle Co. and Luce in opposing Defendant's motion is misplaced. Under the facts related in each opinion, the malicious prosecution defendants had previously filed suits for conversion and monetary damages, respectively, against the malicious prosecution plaintiffs. No suit was ever filed against Linzy.
In his complaint, Plaintiff repeatedly refers to the petition to investigate claims filed by Dr. Rueter pursuant to TEX. R. CIV. P. 202 as a "lawsuit" and as an "exploratory lawsuit." In assessing the legal sufficiency of Linzy's state law claims against the individual defendants, it is appropriate to review the nature of a Rule 202 proceeding.
Texas Rule of Civil Procedure 202 provides that a "person may petition the court for an order authorizing the taking of a deposition on oral examination or written questions . . . (b) toinvestigate a potential claim or suit." TEX. R. Civ. P. 202.1(b) (emphasis added). The petition, among other requirements, must state that the petitioner seeks to investigate a potential claim by or against the petitioner, provide information about the persons to be deposed, the substance of the testimony expected to be elicited, the reasons for desiring to obtain the testimony, and a request for an order authorizing the taking of the deposition. TEX. R. CIV. P. 202.2. The court must order that the requested deposition must be taken, but only if it finds that "the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden of expense of the procedure." TEX. R. CIV. P. 202.4(a)(2). Two federal district courts, considering Rule 202 proceedings in the context of removal, have concluded that the proceedings are not "civil actions." Mayfield-George v. Texas Rehabilitation Commission, 197 F.R.D. 280, 283 (N.D.Tex. 2000) (concluding a Rule 202 petition is not a "civil action" for removal purposes because it asserts no claim or cause of action upon which relief can be granted); McCrary v. Kansas City Southern Railroad, 121 F. Supp.2d 566, 569 (E.D.Tex. 2000) (same; "The Rule 202 Request is merely a pre-suit request for depositions to investigate a potential claim or suit.") (emphasis in original)). Both courts cite to two Texas state court decisions as support for the proposition that a Rule 202 petition is merely an "ancillary proceeding", not a separate suit, that is in anticipation of suits. See Office Employees Int'l Union v. Southwestern Drug Corp., 391 S.W.2d 404,406 (Tex. 1965); Texacadian Energy, Inc. v. Lone Star Energy Storage, 829 S.W.2d 369, 372 (Tex.App. — Corpus Christi 1992, no writ). Thus, Plaintiff's use of the terms "lawsuit" and "exploratory lawsuit" is both misleading and contrary to case authority.
A court in the Eastern District of Texas came to a different conclusion, finding that a Rule 202 proceeding was a "civil action" for removal purposes under 28 U.S.C. § 1441. In re Texas, 110 F. Supp.2d 514 (E.D.Tex. 2000). However, the Fifth Circuit reversed and remanded the case on other grounds and in doing so specifically said it would not address the issue of whether a Rule 202 proceeding was a "civil action" for removal purposes. Texas v. Real Parties in Interest, 2001 WL 826688 (5th Cir. July 23, 2001).
Notwithstanding Plaintiff's characterization of the Rule 202 proceeding as a lawsuit, it is clear under Texas state law that such a proceeding does not constitute a civil proceeding brought against Plaintiff, and thus there is no genuine issue of fact from which a jury could find that Dr. Rueter or any member of the Board instituted a civil action against him and summary judgment will be granted in their favor.
The Rule 202 petition was assigned a docket number. See Def. App., Exhs. 1 and 2; see also Pl. App. Exh. 6. Neither side seeks to explain why Dallas County Courts follow this practice or why an order of dismissal was filed. However, regardless of the form used by the state courts, it neither adds to, nor detracts from the established state law that a Rule 202 petition does not constitute a civil suit. Further, Linzy does not show that he ever entered an appearance in the Rule 202 proceeding or that he ever sought an order of dismissal after his deposition was taken under the state court's order signed on June 28, 1999.
Plaintiff's claim based upon the intentional infliction of emotional distress is equally lacking in merit. In order to prove this claim, he must establish the following elements: (1) the defendants acted intentionally or recklessly; (2) the defendants' conduct was "extreme and outrageous"; (3) the actions of the defendant caused emotional distress; and (4) the emotional distress was severe. Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606 (5th Cir. 1999); City of Midland v. O'Bryant, 18 S.W.3d 209, 216 (Tex. 2000); Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993).
In an effort to establish a colorable claim for this intentional state law tort, Linzy reiterates that the individual Defendants caused a lawsuit to be filed against him. For the reasons stated above, no lawsuit was filed against him giving rise to a suit for malicious prosecution or as a predicate for conduct giving rise to the intentional infliction of emotional distress.
The only conduct which Plaintiff alleges and which is uncontroverted is the fact that the District's Board authorized the payment of fees associated with Dr. Rueter's filing of a Rule 202 petition. The only concomitant result of the petition and the state court's subsequent order was that Linzy was required to appear for a deposition. While the giving of one's deposition may in some instances be an unpleasant experience, whether compelled by court order or pursuant to subpoena, it is a quite common event to which persons are frequently subjected. By no stretch of the imagination can it be characterized as "extreme and outrageous" — as to go beyond all possible bounds of decency, and to be regarded as atrocious, particularly where his deposition was taken pursuant to a Texas Rule of Civil Procedure and upon order of a state court.
Plaintiff's intentional infliction of emotion distress claim against the individual Defendants is patently frivolous.
The individual Defendants also seek summary judgment on the grounds of immunity under Texas state law. While the court is of the opinion that Defendants' immunity defenses are valid as well, because Plaintiff has failed to discharge his burden in opposing their motion for summary judgment on the merits of his asserted state law claims, it is unnecessary to address the merits of their immunity defenses as well.
It is therefore ordered that Defendant's motion for summary judgment is GRANTED and Plaintiff's claims against the Cedar Hill Independent School District and his state law claims against the individual defendants are DISMISSED with prejudice.
A copy of this order will be transmitted to counsel for the Plaintiff and to counsel for the Defendants.