Gray v. Udevitz

• Decision Date: 07 August 1981
• Docket Number: No. 79-1739,79-1739
• Citation: 656 F.2d 588
• Parties: 7 Media L. Rep. 1872 Delbert GRAY, Plaintiff-Appellant, v. Norman UDEVITZ, and Denver Post, Inc., a Colorado corporation, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 588

656 F.2d 588

7 Media L. Rep. 1872

Delbert GRAY, Plaintiff-Appellant, v. Norman UDEVITZ, and Denver Post, Inc., a Colorado corporation, Defendants- Appellees.

No. 79-1739.

United States Court of Appeals Tenth Circuit.

Argued Jan. 26, 1981.

Decided Aug. 7, 1981.

Thomas T. Zollinger, Rock Springs, Wyo., for plaintiff-appellant.

Walter A. Steele of White & Steele, P. C., Denver, Colo. (Carl L. Lathrop of Lathrop & Uchner, Cheyenne, Wyo., with him on brief), for defendants-appellees.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Delbert Gray brought this diversity action for libel against Norman Udevitz and the Denver Post, Inc. The district court granted defendants' motion for summary judgment and Gray appeals. We affirm.

Gray's claim arose out of a 1977 story written by Udevitz and published by the Post about alleged corruption and criminal activity in Rock Springs, Wyoming. The article reported that a three-month investigation by the Post showed extensive drug dealing, prostitution, and gambling occurring openly in Rock Springs. The article focused on the relationship between those who allegedly controlled the illicit operations and various city officials, including the mayor, police chief, and sheriff. Gray was mentioned in a small portion of the story. The following excerpt contains the allegedly libelous statements:

"Last year, a patrolman was observed by fellow officers selling drugs on the street from his squad car. But no action was taken against the man, and he was allowed to resign.

"Another policeman admitted last April that he was extorting free sexual favors from a prostitute, but he was also allowed to rseign (sic ).

"The department over the past few years also has hired a few policemen with misdemeanor criminal records.

"One of those officers, Delbert Gray, is now chief investigator for the county attorney. Although Gray no longer works for the Rock Springs Police Department, Wataha calls Gray 'one of the best investigators we have.'

"IN JULY 1976, however, Gray who was working as a bartender in the Townsend Club admitted to state agents that while he had been a Rock Springs policeman he both used and sold heroin and lived with a prostitute through whom he leaked information about scheduled vice raids."

Rec., vol. I, at 4.

On September 27, 1978, Gray filed a complaint alleging that the last of the quoted paragraphs defamed him because he had never sold or used heroin or leaked information about vice raids, nor had he ever admitted doing so to state agents. The complaint also alleges the passages were structured to create the impression that he was the patrolman who was "observed by fellow officers selling drugs on the street" and who had admitted "extorting free sexual favors from a prostitute." Id.

Defendants filed a motion for summary judgment. On May 29, 1979 a hearing on the motion was set for June 8. On May 31, in response to Gray's request, the hearing was rescheduled for June 26. Gray did not undertake any discovery until June 22, when he gave notice that he would take Udevitz's deposition on June 29, three days after the rescheduled hearing on summary judgment and shortly before the July 1 cut-off date for pretrial discovery. ¹

Defendants supported their summary judgment motion with affidavits from Udevitz and both of the state agents who were his sources for the statements made about Gray. Udevitz confirmed he obtained his information from the state agents and their written reports. Both agents stated that they had interrogated Gray in the course of their investigation, and that Gray admitted he had used and sold heroin while a police officer and had lived with a prostitute and told her about suspected police raids against vice operators. The agents stated further that Gray had submitted to a psychological stress evaluation test which affirmed the veracity of his admissions.

In response, Gray filed a brief contending he was not a public official within the meaning of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). He filed no affidavit to rebut the assertions set forth in affidavits supporting defendants' motion for summary judgment. Rather, he stated in his brief:

"The balance of defendants' argument and brief is based upon an assumption that plaintiff cannot offer proof of 'actual malice' in the event this Court finds plaintiff to be a 'public official.' Rule 56 FRCP, is not designed to be a substitute for discovery. It appears that defendants' argument in this regard is designed to force plaintiff into allowing discovery, at a Rule 56 hearing, when defendant has not sought discovery. Defendants have made the assertion that 'plaintiff cannot sustain his burden of proof of actual malice.' In the absence of attempts to discover plaintiff's evidence, this is a presumptious (sic ) and unfounded assertion. Common sense would dictate that if defendants have no interest in discovering what facts plaintiff intends to prove, they should be precluded from asserting their lack of discovery as a bar to plaintiff's claim."

Rec., vol. I, at 101.

The hearing was held. Finding no genuine issue of material fact to exist, the trial court granted defendants' motion for summary judgment. In its written order, the court ruled that Gray, as a policeman in a town of 30,000 people, was a public official within the meaning of New York Times. It found that Gray had provided no evidence whatsoever from which to infer that defendants had published the article with malice or in reckless disregard of the truth.

Gray argues on appeal that the trial court erred in ruling he was a public official. He asserts there is no evidentiary basis for such a conclusion. Gray also contends the court committed an abuse of discretion in disregarding the July 1st discovery cut-off date and in refusing to continue the hearing on the summary judgment motion until Udevitz had been deposed.

I. Status as a Public Official

The First Amendment is premised on the belief that free and open debate on public issues must be protected from government interference. The Amendment "was fashioned to assure unfettered interchange of ideas for the bringing of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). If these ends are to be achieved, protection of expression cannot be limited to what is true. "(E)rroneous statement is inevitable in free debate(;) ... it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive.' " New York Times, 376 U.S. at 271-72, 84 S.Ct. at 721-22 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1962)). Consequently, the Supreme Court has placed limits on the award of damages in defamation actions.

One such limitation is the rule established in New York Times, 376 U.S. at 279, 84 S.Ct. at 726, that "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." ² In fleshing out the New York Times standard, the Court has indicated that a showing of actual malice requires the public official to provide "clear and convincing proof," Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, "that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).

Two prerequisites must be met for the New York Times standard to apply. The plaintiff must be a public official for the purposes of the article ³ and the defamatory statements must relate to his official conduct. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 273-75, 91 S.Ct. 621, 626-27, 28 L.Ed.2d 35 (1971); Garrison v. Louisiana, 379 U.S. 64, 76-77, 85 S.Ct. 209, 216-217, 13 L.Ed.2d 125 (1964); New York Times, 376 U.S. at 283 n.23, 84 S.Ct. at 727 n.23. Both of these requirements are satisfied here.

The allegedly defamatory remarks in Udevitz's article relate to Gray's conduct while he was a police officer in Rock Springs. Gray's status as a policeman during the period discussed in the story is undisputed. Gray's counsel admitted during the summary judgment proceedings that Gray was a police officer, and said at oral argument before this court that Gray's duties were those of the normal street patrolman. As a policeman in a town of 30,000, the trial court found Gray to be a public official, quoting from Coursey v. Greater Niles Township Publishing Corp., 40 Ill.2d 257, 239 N.E.2d 837 (1968):

" 'It is our opinion that the plaintiff is within the "public official" classification. Although as a patrolman he is "the lowest in rank of police officials" and would have slight voice in setting department policies, his duties are peculiarly "governmental" in character and highly charged with the public interest....' "

Rec., vol. I, at 115.

We agree with the trial court that Gray's status as a police officer in Rock Springs made him a public official. Street level policemen, as well as high ranking officers, qualify as public officials under the test of Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). They "have or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs," id. at 85, 86 S.Ct. at 676, and their position "has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees...." Id. at 86, 86 S.Ct. at 676. The cop on the beat is the member of the department who is most visible to the public. He...