Carson v. Behlen
| Decision Date | 23 November 1955 |
| Docket Number | Civ. A. No. 1455. |
| Citation | 136 F. Supp. 222 |
| Parties | Arthur T. CARSON v. Mary K. BEHLEN. |
| Court | U.S. District Court — District of Rhode Island |
Francis I. McCanna, Providence, R. I., Robert R. Afflick, West Warwick, R. I., for plaintiff.
Joseph Mainelli, U. S. Atty., Arnold Williamson, Jr., Asst. U. S. Atty., Providence, R. I., for defendant.
This action was commenced in the Superior Court of the State of Rhode Island to recover damages from the defendant for her alleged publication and utterance of false and untrue statements concerning the plaintiff. The defendant removed the action to this Court under Title 28 U.S.C.A. § 1442(a) (1) the pertinent part of which authorizes removal of "A civil action * * * commenced in a State court against * * * Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office * * *."
The complaint contains two counts. The first count alleges in substance that before and at the time of the alleged publication of said false and untrue statements the plaintiff was employed as a kitchen helper by the United States government; that in such capacity he had behaved and conducted himself with integrity, honesty, etc.; that the defendant, well knowing this fact but contriving and falsely and maliciously intending to "injure the plaintiff in his character and reputation * * * and * * * to prevent the United States government from retaining and continuing to employ the plaintiff" did on, to wit, the 10th day of September A.D. 1951 and on the 1st and 2nd days of October A.D. 1951, and at divers times between said dates, compose and publish certain false, scandalous, malicious, defamatory and libelous matter concerning the plaintiff and concerning the plaintiff in his employment as such kitchen helper. The complaint then sets forth the alleged libelous matter all of which charged the plaintiff with certain derelictions of his duties as kitchen helper, and alleges that as a result thereof his reputation was damaged and that he was on May 8, 1952, discharged from his employment.
The second count contains the same allegations except that it alleges that the defendant, on the dates specified in count one, spoke and uttered the alleged defamatory statements.
The defendant has moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that the pleadings fail to state a claim upon which relief can be granted. With this motion she has filed supporting affidavits and documents.
These affidavits and documents show conclusively that at the times of the alleged grievances the plaintiff was employed as a kitchen helper in the dietetic department of the Veterans Administration Hospital in Providence, Rhode Island; that the defendant was then chief of the dietetic service of the hospital, charged with the supervision of plaintiff's work; that under the rules and regulations of the Veterans Administration she was charged with the responsibility and duty of initiating and recommending appropriate action against the plaintiff, including discharge, for unsatisfactory performance or behavior; that certain irregularities concerning the performance of the plaintiff were brought to her attention by the plaintiff's immediate supervisors and as a result thereof she, Mr. John P. Lee, personnel officer of the hospital, and the immediate supervisors of the plaintiff made an inquiry concerning the plaintiff's performance; that upon completion of said inquiry, a letter, signed by her and Mr. Lee, was sent to plaintiff dated September 10, 1951, advising him of "Notice of Grounds for and Effective Date of Intended Removal"; that after receipt of this letter the plaintiff claimed and was given a hearing, on the 1st and 2nd days of October, 1951, before an Advisory Hearing Authority, appointed in accordance with the rules and regulations of the Veterans Administration; that the defendant appeared and testified at this hearing concerning the plaintiff's performance of his duties; that as a result of the hearing the plaintiff was not discharged but was reprimanded in accordance with the recommendation of the Advisory Hearing Authority;...
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