Lamb v. Rizzo, No. 03-3179.

• Decision Date: 09 December 2004
• Docket Number: No. 03-3179.
• Citation: 391 F.3d 1133
• Parties: Thomas P. LAMB, Plaintiff-Appellant, v. Tony RIZZO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

391 F.3d 1133

Thomas P. LAMB, Plaintiff-Appellant, v. Tony RIZZO, Defendant-Appellee.

No. 03-3179.

United States Court of Appeals, Tenth Circuit.

December 9, 2004.

Submitted on the briefs: Thomas P. Lamb, pro se.

Michael J. Abrams of Lathrop & Gage L.C., Kansas City, Missouri, for Defendant-Appellee.

Before LUCERO, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.

The state of Kansas incarcerated Thomas P. Lamb, pro se plaintiff in this libel action, over thirty years ago. He is serving three consecutive life sentences for two counts of first degree kidnapping and one count of first degree murder. In July 2001, defendant, newspaper reporter Tony Rizzo, wrote two articles about Mr. Lamb's convictions and upcoming parole hearing. When Mr. Lamb's request for parole was subsequently denied, he sued Mr. Rizzo in Kansas state court asserting, among other things, that Mr. Rizzo's articles contained "lies and false information" which caused Mr. Lamb to be denied parole. R. Vol. I, Doc. 1, Ex. A at 1.

Mr. Rizzo removed the case to federal district court based upon diversity of citizenship. He also filed a motion to dismiss for failure to state a claim, attaching to it numerous newspaper articles chronicling Mr. Lamb's criminal history. In the motion, Mr. Rizzo contended that Mr. Lamb was libel-proof as a matter of law; in other words, his public reputation at the time the articles were published was so diminished with respect to a specific subject (his kidnapping and murder convictions), that he could not be further injured by allegedly false statements on that subject. Because damage to one's reputation is the heart of a defamation action in Kansas, argued Mr. Rizzo, Mr. Lamb's claims must be dismissed.

Mr. Lamb countered that, by the time the articles were published, his reputation had been rehabilitated and that he was no longer libel-proof. To substantiate this contention, Mr. Lamb attached many exhibits to his response, including letters from various individuals who had recommended he be paroled.

On January 31, 2003, the district court dismissed Mr. Lamb's complaint for failure to state a claim upon which relief could be granted. While acknowledging that Mr. Rizzo did not cite any Kansas case law adopting the libel-proof plaintiff doctrine, the district court predicted that the Kansas Supreme Court, if presented with the issue, would adopt the doctrine. Lamb v. Rizzo, 242 F.Supp.2d 1032, 1037 (D.Kan.2003). It also predicted that, based on the factual narrative of Mr. Lamb's crimes in the Kansas Supreme Court's decision affirming his convictions, that court would hold the doctrine applicable to Mr. Lamb and conclude that Mr. Rizzo's articles were not actionable as a matter of law. Id. at 1037-38. After the district court entered judgment, Mr. Lamb filed a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment, which the district court denied. This appeal followed.¹

Our jurisdiction arises under 28 U.S.C. § 1291. Because we agree with the district court's prediction that the Kansas Supreme Court would adopt the libel-proof plaintiff doctrine and hold that it is a bar to Mr. Lamb's claims, and because the district court did not abuse its discretion in denying Mr. Lamb's motion to alter or amend the judgment, we affirm.²

I. Background

Although the district court included a detailed factual summary, our disposition requires only an abbreviated description of the facts pertinent to this appeal. The following facts are largely undisputed.

In December, 1969, Lamb kidnapped and murdered Karen Sue Kemmerly, who was then 24 years old. Kemmerly's nude body was found... on December 7, 1969. In January, 1970, he kidnapped Patricia Ann Childs, who was then 18 years old. Lamb demanded ransom from Childs' parents, which they agreed to pay. Law enforcement officers staked out the scene of the ransom payment, and were able to apprehend him after a high speed car chase.

Lamb, 242 F.Supp.2d at 1033. Several days later, while being held without bond,

[Mr. Lamb] obtained a 38 caliber pistol. He and [a jail] trustee then took three dispatchers and a jailer captive and escaped from the jail after locking the four sheriff's officers in a jail cell. [Mr. Lamb] and [the trustee] then proceeded across the street from the courthouse to a small cafe where they took a patron, Loyd Midyett, hostage. The pair then commandeered Midyett's car ... with Midyett in their custody .... [and] they were eventually apprehended at a roadblock....

Id. at 1037 (quoting State v. Lamb, 209 Kan. 453, 497 P.2d 275, 282 (1972), overruled on other grounds by State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978)).

Mr. Lamb has now been imprisoned for more than a quarter of a century. But "even that isolation has not prevented him from periodically attempting his violent reentry into society at large." Id. at 1038, 587 P.2d 861. In 1979, Mr. Lamb escaped from the Kansas State Penitentiary, "stole a car and led officers on another high speed chase." Id. And, in 1987, he escaped "from the Larned State Hospital, during which he threatened a farmer at knife point, stole his car, and led officers on yet another car chase." Id.; but see Aplt. Br. at 7 (characterizing his 1987 escape as "walk[ing] away from minimum security").

As set forth above, Mr. Lamb was denied parole in 2001 and shortly thereafter sued Mr. Rizzo. Mr. Lamb asserted that Mr. Rizzo's articles were defamatory (and that publishing them constituted a negligent tort, R. Vol. I, Doc. 1, Ex. A at 2, 4) because he inaccurately reported that Mr. Lamb: (1) was convicted of raping both Ms. Kemmerly and Ms. Childs; (2) was arrested "after a chase and shootout that left one police officer seriously injured;" (3) "fooled prison officials in 1969, when he was serving time for burglary" into recommending him for parole; and (4) pursued his victims by "prowl[ing] area shopping centers, dressed as a woman." Id. at 2-3, 587 P.2d 861. Mr. Lamb argued that these statements were defamatory because, he alleged,

(1) he was never charged with rape as to either of his victims and that his second victim told several different stories; (2) while an officer may have been shot [as] officers were pursuing him, the shot came from another officer and was in any event not life threatening; (3) there is no indication that he fooled anyone into recommending him for parole; and (4) while Lamb did abduct Ms[.] Childes [sic] from a shopping center, [he] was fully dressed as a male at that time.

Lamb, 242 F.Supp.2d at 1033 (citations and quotations omitted).

II. Discussion

A. Dismissal of Plaintiff's Complaint Based Upon the Libel-Proof Plaintiff Doctrine

In concluding that the libel-proof plaintiff doctrine barred Mr. Lamb's claims, the district court resolved Mr. Rizzo's motion to dismiss under Fed.R.Civ.P. 12(b)(6). Notwithstanding, the court clearly relied upon and incorporated into its order granting the motion material derived from documents outside the four corners of Mr. Lamb's complaint. In so doing, "the court converted the motion to dismiss into a motion for summary judgment." Nichols v. United States, 796 F.2d 361, 364 (10th Cir.1986). We must therefore "review the record under summary judgment standards," and affirm the district court's ruling "if it is clear from the record on appeal that there are no genuine issues of fact to be tried and the movant is entitled to judgment as a matter of law." Id.; Fed.R.Civ.P. 56.³

On appeal, Mr. Lamb argues that the district court "knew that Kansas did not have a libel-proof plaintiff doctrine" and knowingly violated his rights by applying "that federal doctrine to his case." Aplt. Br. at 6. In the alternative, he apparently argues that even if the libel-proof plaintiff doctrine is applicable, it cannot be used to bar his claims thirty-one years after "the only crime that could have labeled [him]... libel-proof." Id. at 7. Mr. Lamb's arguments, however, are misplaced.

As a preliminary matter, although Mr. Lamb concedes that the substantive law of the forum state applies, see Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), he fails to recognize that "[i]n the absence of authoritative precedent from the Kansas Supreme Court ..., our job is to predict how that court would rule," Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir.1995). Additionally, and contrary to Mr. Lamb's contention, the libel-proof plaintiff doctrine is not an exclusively federal doctrine. It is a judicially created doctrine that has been applied in a number of jurisdictions for more than two decades.⁴ It recognizes that damage to one's reputation is the core of a defamation action, and essentially holds

that when a plaintiff's 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, the plaintiff is deemed to be libel-proof as a matter of law and is not permitted to burden a defendant with a trial.

Eliot J. Katz, Annotation, Defamation: Who is "Libel-Proof," 50 A.L.R.4th 1257 (2004); accord 1 Robert D. Sack, Sack on Defamation § 2.4.18 (3d ed.2004); see generally Note, The Libel-Proof Plaintiff Doctrine, 98 Harv. L.Rev.1909 (1985). Stated another way:

When ... an individual engages in conspicuously anti-social or even criminal behavior, which is widely reported to the public, his reputation diminishes proportionately. Depending upon the nature of the conduct, the number of offenses, and the degree and range of publicity received, there comes a time when the individual's reputation for specific conduct, or his general reputation for honesty and fair dealing is sufficiently low in the public's estimation that he can recover only nominal damages for subsequent defamatory statements.

First Amendment considerations of free press and speech, promoting society's interest in uninhibited, robust,...