Shanklin v. Fernald

• Decision Date: 28 January 2008
• Docket Number: No. A-07-CA-282-LY.,A-07-CA-282-LY.
• Citation: 539 F.Supp.2d 878
• Parties: Steven Dale SHANKLIN, Plaintiff, v. Michael J. FERNALD, Agent McKinnies, Harlan Carter, John Doe # 1, Austin American-Statesman, Cox Enterprises, Steven Kreytak, KLBJ AM Newsradio 590, Emmis Austin Radio Broadcasting Co. LP, John Doe # 2, John Doe # 3, John Doe # 4, and John Does # 5, # 6, # 7, # 8, and # 9, Defendants.
• Court: U.S. District Court — Western District of Texas

539 F.Supp.2d 878

Steven Dale SHANKLIN, Plaintiff, v. Michael J. FERNALD, Agent McKinnies, Harlan Carter, John Doe # 1, Austin American-Statesman, Cox Enterprises, Steven Kreytak, KLBJ AM Newsradio 590, Emmis Austin Radio Broadcasting Co. LP, John Doe # 2, John Doe # 3, John Doe # 4, and John Does # 5, # 6, # 7, # 8, and # 9, Defendants.

No. A-07-CA-282-LY.

United States District Court, W.D. Texas, Austin Division.

January 28, 2008.

COPYRIGHT MATERIAL OMITTED

Steven Dale Shanklin, Anthony, NM, pro se.

ORDER

LEE YEAKEL, District Judge.

BE IT REMEMBERED on the 28th day of January 2008, the Court reviewed the file in the above-styled cause, and specifically Plaintiff's original complaint [# 1], the Rule 12(b)(6) Motion to Dismiss [# 7], filed by Defendants Austin American-Statesman, Cox Enterprises, and Steven Kreytak (the "Statesman Defendants"), Plaintiff's response [# 20], the Statesman Defendants' reply [# 23], Plaintiff objections thereto [# 26], Plaintiff's affidavits in support of his response [# 24] and the Motion to Dismiss or for Summary Judgment [# 39], filed by Defendants Fernald, McKinnies and Carter (the "Government Defendants").¹ Having considered the complaint, the motions, the response, the reply, the relevant law, and the case file as a whole, the Court now enters the following opinion and order.

I. Background

Plaintiff alleges IRS Agent McKinnies signed summonses as both requesting and authorizing agent. He contends McKinnies' failure to obtain proper signatures rendered the summonses invalid and unenforceable as a matter of law. Plaintiff asserts his private papers, records or information obtained pursuant to the summonses were unlawfully introduced in grand jury proceedings. Plaintiff maintains McKinnies' negligent acts of issuing illegal summonses occurred in the years 1999 through 2003 and resulted in the violation of Plaintiff's constitutional rights.

Plaintiff further alleges Agents McKinnies and Fernald violated his constitutional rights because he was falsely arrested and imprisoned. Plaintiff claims the arresting officers knew or should have known Plaintiff denied having any income tax liability and demanded written determinations that Plaintiff was subject to or liable for a federal income tax. Plaintiff asserts Agents McKinnies and Fernald knew or should have known Plaintiff had stated his intention to obey all laws and to pay any taxes he was legally obligated to pay. Plaintiff contends this shows Plaintiff was not willfully violating 26 U.S.C. § 7201. Plaintiff also alleges Agents Carter, McKinnies, Fernald and John Doe # 1 conspired to deprive Plaintiff of his equal protection under the law on account of his classification as a "tax protestor."

Plaintiff also accuses Agent Carter and John Doe # 1 of unlawfully disclosing the plaintiff's tax return or return information, obtained by them in connection with their service with the IRS, in either their official or individual capacities in violation of section 6103 and section 7213 of the Internal Revenue Code. The tax return information included his earnings, age, and identity.

Plaintiff claims these disclosures were made to Defendant Steven Kreytak. Defendant Kreytak is a reporter for the Austin American — Statesman. Defendant Cox Enterprises is essentially the parent company for the daily paper. Defendant Kreytak authored a story about Plaintiff's federal criminal indictment on tax evasion charges. The title of the article was "IRS: Man refused to pay his taxes." The Statesman article at issue, in describing the content of Plaintiff's indictment, included information from the indictment, such as his income for the years in question: $876,398 in 1998, $770,504 in 1999, and $681,966 in 2000. The article also stated that the maximum penalty faced by Plaintiff was up to five years in prison on each of the three counts of tax evasion. The article indicated Plaintiff was "among the 300 or so people each year who fail to file tax returns or cite frivolous arguments in their returns and are subsequently prosecuted in federal court." Agent Carter is quoted in the article as saying, "[t]he IRS tries to draw attention to those cases to deter others from buying into bogus tax-avoidance techniques pitched in seminars, in books and on the Internet." Carter was identified in the article as the special agent in charge of the San Antonio field office of the IRS Criminal Investigations Division. The article was published on the internet on April 12, 2005, and in print on April 13, 2005. The article was allegedly discussed on KLBJ Newsradio 920 by unnamed radio personalities identified as John Does 2-4 (the "KLBJ Defendants") on April 13, 2005.

Plaintiff contends the article and related discussion on the radio defamed him and contaminated the jury pool. He claims he had no other choice but to plead guilty under duress. Plaintiff pleaded guilty to count one of the indictment. As a result, he was sentenced to 60 months imprisonment, years supervised release, $100 special assessment, and $425,565.00 restitution. See United States v. Shanklin, No. A-05-CR-064-SS (W.D.Tex. Oct. 5, 2005) (judgment and commitment).

Plaintiff sues Agent Fernald, Agent McKinnies, and Agent Carter (the "Government Defendants"); the Austin American-Statesman, Cox Enterprises, and Steven Kreytak (the "Statesman Defendants"); KLBJ AM Newsradio 590, Emmis Austin Radio Broadcasting Co., LP, and the unnamed radio personalities identified as John Does # 2-4 (the "KLBJ Defendants"); and John Does # 1, 5-9. Plaintiff seeks a declaratory judgment, actual damages in the amount of $11,200,000.00 and punitive damages in the amount of $33,600,000.00, and injunctive relief.

The Court ordered service on the Government Defendants and the Statesman Defendants but did not order service on the KLBJ Defendants or the defendants identified as John Does # 1-9. The Court informed Plaintiff service on the defendant identified as John Doe # 1 would be ordered when said defendant was identified. As Plaintiff never identified John Doe # 1, service was never ordered. Accordingly, Plaintiff's claims against Defendant John Doe # 1 will be dismissed without prejudice for want of prosecution.

The Government Defendants and the Statesman Defendants move to dismiss Plaintiff's complaint. Alternatively, the Government Defendants move for summary judgment.

I. Analysis

An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal for frivolousness or maliciousness may occur at any time, before or after service of process and before or after the defendant's answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir.1986).

In deciding whether to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "the Court must take the factual allegations as true, resolving any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff." Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993). The Court should then dismiss only if "it appears beyond 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, 2 L.Ed.2d 80 (1957).

Summary judgment may be granted if the moving party shows there is no genuine issue of material fact, and it is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In deciding summary judgment, the Court construes all facts and inferences in the light most favorable to the nonmoving party. Richter v. Merchs. Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir.1996). The standard for determining whether to grant summary judgment "is not merely whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the nonmoving party based upon the record evidence before the court." James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990).

Both parties bear burdens of production in the summary judgment process. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the initial burden of showing there is no genuine issue of any material fact and judgment should be entered as a matter of law. FED.R.CIV.P. 56(c); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91. L.Ed.2d 202 (1986). The nonmoving party must then come forward with competent evidentiary materials establishing a genuine fact issue for trial and may not rest upon the mere allegations or denials of its pleadings. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, "[n]either `conclusory allegations' nor `unsubstantiated assertions' will satisfy the non-movant's burden." Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996).

A. Defamation

Plaintiff's defamation claims are barred by limitations. The article underlying Plaintiff's complaint was first published in the Austin American-Statesman in its internet and print editions on April 12 and 13, 2005, and was discussed on KLBJ AM 590 on April 13, 2005. Plaintiff executed his original complaint nearly two years later on April 10, 2007. While a Rule 12(b)(6) motion is generally decided based on the face of the complaint, the Court may also consider an undisputedly authentic document that the defendant attaches to the motion to dismiss, when a plaintiff's claims are based on that document. Brock v. Baskin-Robbins USA Co., 113 F.Supp.2d 1078, 1092 (E.D.Tex.2000). Plaintiff has not contested the authenticity of the article attached as an exhibit to the Statesman Defenda...