Phelps v. Wichita Eagle-Beacon

• Decision Date: 01 April 1986
• Docket Number: Civ. A. No. 83-4060-S.
• Citation: 632 F. Supp. 1164
• Parties: Fred W. PHELPS, Plaintiff, v. The WICHITA EAGLE-BEACON, et al., Defendants.
• Court: U.S. District Court — District of Kansas

632 F. Supp. 1164

Fred W. PHELPS, Plaintiff, v. The WICHITA EAGLE-BEACON, et al., Defendants.

Civ. A. No. 83-4060-S.

United States District Court, D. Kansas.

April 1, 1986.

Fred W. Phelps, Sr., pro se.

Margie J. Phelps, Phelps-Chtd., Topeka, Kan., for plaintiff.

Gerrit H. Wormhoudt, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for Wichita Eagle-Beacon, Tompkins, Holtzclaw & Merritt.

Sloan, Listrom, Eisenbarth, Sloan and Glassman, Myron L. Listrom and Deanne Watts Hay, Topeka, Kan., for Harley.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) for failure to state a claim and defendants' motion to dismiss plaintiff's amended complaint for failure to state a claim and on the basis that plaintiff's Racketeer Influenced & Corrupt Organizations Act RICO claim is barred by the statute of limitations.

Plaintiff brought this action seeking damages and injunctive relief for defendants' publication of two articles about plaintiff in the Wichita Eagle-Beacon. In his complaint, plaintiff alleges that the court has jurisdiction under 42 U.S.C. §§ 1981, 1983, 1985, and 1988, 28 U.S.C. §§ 1331 and 1343, and the first and fourteenth amendments. Plaintiff also alleges pendent state law claims for defamation and invasion of privacy. On August 12, 1985, the plaintiff filed an amended complaint alleging an additional claim under the civil RICO Act, 18 U.S.C. § 1962.

In defendants' motion to dismiss, defendants contend that plaintiff has failed to allege facts sufficient to support subject matter jurisdiction in this court. Defendants claim that plaintiff's lawsuit is, in reality, a suit for libel, slander, and invasion of privacy. The defendants state that plaintiff's claims sound in tort and do not rise to the status of a constitutional violation necessary to invoke this court's jurisdiction. Defendants claim that plaintiff's allegations of the violation of Kansas Supreme Court Rule 223 is in no way a claim of a constitutional violation.

In considering a motion to dismiss, the factual allegations of the complaint must be taken as true and all reasonable inferences must be indulged in favor of the plaintiff. Mitchell v. King, 537 F.2d 385 (10th Cir.1976); Dewell v. Lawson, 489 F.2d 877 (10th Cir.1974). A complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The question is not whether a plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

Though this court is willing to give the plaintiff the benefit of every doubt in judging defendants' motion to dismiss, the court will not hesitate to dismiss plaintiff's complaint if he fails to allege deprivation of a constitutional right. As the Honorable Judge Earl O'Connor recently noted in Taylor v. Nichols, 409 F.Supp. 927, 932 (D.Kan.1976), aff'd, 558 F.2d 561 (10th Cir. 1977):

A dispute regarding the alleged deprivation of such a constitutional right is necessary because it is an express prerequisite of federal jurisdiction under 28 U.S.C. § 1343.... It should be clear, however, that the standard for dismissal ... does not become operative unless a privilege or right secured by the Constitution is identified and put into issue by the allegations of the complaint; that is, if the denial of a specific constitutional right is alleged, the action should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."

In Taylor the court noted that the protection accorded to individual freedoms and liberties by sections 1983 and 1985 are not without limits. The court stated that while the Civil Rights Act confers a right of action sounding in tort upon an individual whose rights are trespassed upon by any person "acting under color of state law" or by any group of people acting in conspiracy, it is clear that not all violations of state law arise to the level of a "constitutional tort" for the purposes of the civil rights statute. Id. at 933. The court further stated that "an individual's right to have the relevant state laws strictly obeyed is not a federal right protected by the Civil Rights Act of 1871 or the Constitution of the United States. cites omitted Nor does the Civil Rights Act provide a remedy for mere common law torts, even when committed `under color of state law.'" Id. It is well settled that courts are to be alert for possible abuse of the Civil Rights Act in alleging rights derived purely from state law and incident to state law rather than federal citizenship. Id.

The court will address each of the plaintiff's bases which confer jurisdiction upon this court. The plaintiff first claims that jurisdiction is founded on 42 U.S.C. § 1981. A valid claim of racial discrimination is a prerequisite to a cause of action under 42 U.S.C. § 1981. Phillips v. Fisher, 445 F.Supp. 552, 555 (D.Kan.1977). Title 42 U.S.C. § 1981 provides in part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens...."

While the court recognizes that the protection of section 1981 has been extended to whites, McDonald v. Santa Fe Trail Transportation, 427 U.S. 273, 287, 96 S.Ct. 2574, 2582, 49 L.Ed.2d 493 (1975), there must be allegations that defendant violated plaintiff's rights by discriminating against plaintiff on the basis of his race being white, which is protected by law. In reading plaintiff's complaint, the court finds no such allegation that plaintiff has been discriminated against by defendants because he is white. Rather, paragraph 13 of plaintiff's complaint states that he was discriminated against by defendants because he is a black man's lawyer, in violation of section 1981. The court finds this allegation does not state a cause of action under section 1981. In plaintiff's memorandum in opposition to defendants' motion to dismiss, he states that the defendants' conduct is inseparably linked to plaintiff's association with members of another race, thus going to the very heart of section 1981. The plaintiff cites Members of Bridgeport v. City of Bridgeport, 85 F.R.D. 624, 650 (D.Conn.1980) in support of his proposition. The court finds that plaintiff's argument is without merit. The court finds that the decision in Members of Bridgeport is inapposite to the case at hand. The plaintiffs in Members of Bridgeport were themselves minorities. The court finds that in this case, plaintiff is a white male who alleges discrimination on the basis of his association with black persons. This allegation standing alone, does not state a cause of action for jurisdiction under section 1981. As the Honorable Judge Theis held in Phelps v. Washburn, 634 F.Supp. 556 (D.Kan.1986), "The Court holds that plaintiffs' vicarious minority theory does not state a cause of action because the Phelps are not a protected group under section 1981." Id. at 571. Similarly, the court finds no line of cases which state that a plaintiff's association with minorities, "a black man's lawyer," states a cause of action under section 1981.

The court will next address plaintiff's claim that this court has jurisdiction pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendants' conduct defaming plaintiff has interfered with his liberty interest and his later opportunity for employment, thus entitling him to a cause of action under section 1983. Further, plaintiff alleges that defendants' conduct in publishing the articles was done with racial motivation due to his association with members of the black race, resulting in denial of plaintiff's equal protection of the laws. The court finds that plaintiff's claim of jurisdiction under section 1983 equally to be without merit.

The court finds the United States Supreme Court's decision in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1975) controlling on the issue of plaintiff's liberty interest. In Paul v. Davis, the court stated that defamation, standing alone, did not deprive plaintiff of any "liberty" protected by the guarantees of the fourteenth amendment. Id. at 709, 96 S.Ct. at 1164. The court went on to state that:

Rather the plaintiff's interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any "liberty" or "property" recognized by state or federal law, nor has it worked any change of respondent's status as theretofore recognized under State's laws. For these reasons we hold that the interest in reputation asserted in this case is neither "liberty" nor "property" guaranteed against state deprivation without due process of law.

Id. at 712, 96 S.Ct. at 1165-1166.

Similarly, the court finds that plaintiff's liberty interests have not been violated in this case. Damage to plaintiff's reputation, if any, due to the publication of the articles does not state a cause of action under section 1983. The court holds that damage to plaintiff's reputation, without an accompanying loss of employment, or an opportunity for future employment, does not state a cause of action for a violation of plaintiff's liberty or property interests. As the court previously stated, the decision in Taylor v. Nichols, 409 F.Supp. 927, 934 (D.Kan.1976) definitively states that:

It is well established that libel or slander by a state official—even if

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