594 F.3d 723 (10th Cir. 2010), 08-7100, Peterson v. Grisham

Docket Nº:08-7100.
Citation:594 F.3d 723
Opinion Judge:LUCERO, Circuit Judge.
Party Name:William N. PETERSON; Gary Rogers; Melvin R. Hett, Plaintiffs-Appellants, v. John GRISHAM; Doubleday Dell Publishing Group; Random House, Inc.; Robert Mayer; Broadway Books; Dennis Fritz; Seven Locks Press, Inc.; Barry Scheck, Defendants-Appellees.
Attorney:Gary L. Richardson (Denise P. James with him on the briefs), The Richardson Law Firm, P.C., Tulsa, OK, for the Plaintiffs-Appellants. Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, and Cheryl A. Pilate, Morgan Pilate, LLC, Olathe, Kansas (Jon Epstein, Ha...
Judge Panel:Before KELLY, McKAY, and LUCERO, Circuit Judges.
Case Date:February 01, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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594 F.3d 723 (10th Cir. 2010)

William N. PETERSON; Gary Rogers; Melvin R. Hett, Plaintiffs-Appellants,

v.

John GRISHAM; Doubleday Dell Publishing Group; Random House, Inc.; Robert Mayer; Broadway Books; Dennis Fritz; Seven Locks Press, Inc.; Barry Scheck, Defendants-Appellees.

No. 08-7100.

United States Court of Appeals, Tenth Circuit.

February 1, 2010

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[Copyrighted Material Omitted]

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Gary L. Richardson (Denise P. James with him on the briefs), The Richardson Law Firm, P.C., Tulsa, OK, for the Plaintiffs-Appellants.

Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, and Cheryl A. Pilate, Morgan Pilate, LLC, Olathe, Kansas (Jon Epstein, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, OK, with them on the briefs), for the Defendants-Appellees.

Before KELLY, McKAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

In 1988, Ronald Williamson and Dennis Fritz were wrongly convicted of the rape and murder of Debra Sue Carter. Both men were later exonerated after spending over a decade in jail. Their painful story caught the attention of renowned legal-fiction author John Grisham, who wrote a book about Williamson appropriately titled The Innocent Man. Fritz also wrote a book, Journey Toward Justice, detailing the horror of his years of unjust confinement.

Each of the plaintiffs in this case-Oklahoma District Attorney William Peterson; former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist Melvin Hett-played a role in the investigation or prosecution and conviction of Williamson and Fritz. Neither The Innocent Man nor Journey Toward Justice paints the plaintiffs in a positive light. Following the release of these books, plaintiffs filed suit in Oklahoma district court seeking relief for defamation, false light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. They named Grisham, Fritz, anti-death penalty advocate Barry Scheck, and author Robert Mayer-along with their respective publishers-as defendants.1 The district court dismissed the suit for failure to state a claim upon which relief can be granted. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

On the morning of December 8, 1982, Carter was found dead in her garage apartment in the small town of Ada, Oklahoma. She had been raped and suffocated by her assailant. Four years later, Rogers and his fellow officers arrested Williamson and Fritz for Carter's murder. Peterson prosecuted the case.

The evidence against Williamson and Fritz consisted of hair samples, Williamson's statement to police about a dream in

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which he had committed the murder, and the testimony of jailhouse informants. Williamson v. State, 812 P.2d 384, 391-93 (Okla.Crim.App.1991). Hett testified that hairs recovered from the crime scene belonged to Williamson and Fritz. Id. at 391. Based on this evidence, the jury convicted Williamson and Fritz of rape and murder. Williamson was sentenced to death, and Fritz received life in prison. Id. at 390, 391 n. 1.

Following a grant of habeas relief by the Eastern District of Oklahoma, DNA testing was ordered in 1999. That testing revealed that hair and semen samples taken from the crime scene could not have come from Williamson and Fritz. Both men had been wrongfully convicted. Another man was eventually found guilty of Carter's murder. Gore v. State, 119 P.3d 1268 (Okla.Crim.App.2005). 2 Williamson and Fritz's exonerations spawned two different books, as well as a chapter in a third and an afterword in a fourth.

Grisham published The Innocent Man in 2006. It tells Williamson's life story and explores the circumstances leading to his wrongful conviction, imprisonment, and subsequent exoneration. Grisham depicts Peterson, Rogers, and Hett as particularly responsible for the plight of Williamson and Fritz. He also faults what he describes as a broken criminal justice system that condones " bad police work, junk science, faulty eyewitness identifications, bad defense lawyers, lazy prosecutors, [and] arrogant prosecutors."

In Journey Toward Justice, Fritz speaks in equally harsh tones about the public officials who put him behind bars. As the title suggests, the book describes Fritz's agonizing trail from wrongful imprisonment to exoneration. Fritz recounts in vivid detail his fears and frustrations as a wrongfully accused murder suspect and convict, and his eventual elation upon release.

Barry Scheck, Fritz's former attorney and a prominent anti-death penalty advocate, wrote the foreword to Journey Toward Justice. In that foreword, Scheck commends Fritz for having the courage to write his personal story, and praises Fritz for his recent work in the anti-death penalty movement. Both Fritz and Scheck were interviewed by Grisham for The Innocent Man. Scheck ultimately devoted a chapter of his 2003 book, Actual Innocence, to the wrongful convictions of Williamson and Fritz.

Lastly, Robert Mayer's book, The Dreams of Ada, explores the 1985 convictions of Tommy Ward and Karl Fontenot for the death of Denice Haraway. The Haraway case shared many parallels with the Carter case, including minimal physical evidence, the use of " dream" confessions, and reliance on testimony by jailhouse informants. That case also involved a similar cast of characters: Peterson was the prosecutor and Rogers was the investigator. Grisham used The Dreams of Ada -and found it to be particularly helpful-in his research for The Innocent Man. Shortly after Grisham's book was published, Broadway Books reissued The Dreams of Ada with a new afterword written by Mayer.3

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With the exception of Actual Innocence, all these books were released (or, in the case of The Dreams of Ada, re-released) in October 2006. One year later, Peterson and Rogers filed suit alleging defamation, false light invasion of privacy, intentional infliction of emotional distress, and civil conspiracy. They subsequently amended their complaint to add Hett as a plaintiff.4 After defendants filed motions to dismiss, the district court directed plaintiffs to file a second amended complaint specifying the alleged defamatory statements.

In their 116-page second amended complaint, plaintiffs claimed that defendants engaged in " a massive joint defamatory attack" against them. This attack was motivated in part by defendants' shared desire " to further efforts to abolish the [d]eath [p]enalty." The district court dismissed the second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Peterson v. Grisham, No. CIV-07-317-RAW, 2008 WL 4363653, at *10 (E.D.Okla. Sept. 17, 2008) (unpublished). It also dismissed plaintiffs' motion to further amend their complaint. Id. This appeal ensued.

II

We review de novo the district court's grant of a Rule 12(b)(6) motion to dismiss. Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.2007). " The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's amended complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). We accept all well-pled factual allegations as true and view these allegations in the light most favorable to the nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999).

To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts to make her " claim for relief ... plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While " [t]echnical fact pleading is not required ... the complaint must still provide enough factual allegations for a court to infer potential victory." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.2008). If the allegations " are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘ have not nudged their claims across the line from conceivable to plausible.’ " Robbins v. Oklahoma ex rel. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

A

Before evaluating each of plaintiffs' claims individually, we consider plaintiffs' general arguments that the district court incorrectly applied Rule 12(b)(6). Plaintiffs argue that that the district court applied summary judgment standards in evaluating defendants' 12(b)(6) motions. It is correct that the district court cited to two summary judgment cases in its analysis, Partington v. Bugliosi, 56 F.3d 1147 (9th Cir.1995), and Riley v. Harr, 292 F.3d 282 (1st Cir.2002). Peterson, 2008 WL 4363653, at *4-5. However, the court cited to these cases in discussing the proper review of an alleged defamatory statement in the context of the book as a whole. When reciting the legal standard for dismissal, the district court specifically stated

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it was evaluating defendants' motions under Rule 12(b)(6). Id. at *1-2.

Plaintiffs also contend that the district court " failed to take into consideration any of the one-hundred and three ... pages of specific factual allegations" in their second amended complaint. According to plaintiffs, the court sweepingly concluded that statements by authors regarding government officials and public figures could never be considered defamatory or otherwise actionable. They further accuse the district court of neglecting to analyze each of the factual allegations in their complaint on the basis that the district court noted that such a task would be " boring" and " repetitive." Id. at *6.

Plaintiffs mischaracterize the district court's statements. The court did not rule that defamation claims against authors writing about public officials are never plausible....

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