Shoultz v. Monfort of Colorado, Inc.

• Decision Date: 07 February 1985
• Docket Number: No. 82-1293,82-1293
• Citation: 754 F.2d 318
• Parties: Cleo F. SHOULTZ, Plaintiff-Appellant, v. MONFORT OF COLORADO, INC., a Delaware Corporation; Kenneth W. Monfort, Samuel D. Addoms, D.W. Anderson, Robert Angelotti, Walter H. Huber and Joseph Blair, individually and as officials of the U.S. Department of Agriculture, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 318

754 F.2d 318

Cleo F. SHOULTZ, Plaintiff-Appellant, v. MONFORT OF COLORADO, INC., a Delaware Corporation; Kenneth

W. Monfort, Samuel D. Addoms, D.W. Anderson, Robert

Angelotti, Walter H. Huber and Joseph Blair, individually

and as officials of the U.S. Department of Agriculture,

Defendants-Appellees.

No. 82-1293.

United States Court of Appeals, Tenth Circuit.

Feb. 7, 1985.

Barry D. Roseman, Denver, Colo. (Edward H. Sherman, Denver, Colo., was also on the brief), for plaintiff-appellant.

Bruce A. Menk, Hall & Evans, Denver, Colo. (Alan Epstein, Hall & Evans, Denver, Colo. and Gary B. Blum, Denver, Colo., were also on brief), for defendants-appellees Monfort of Colorado, Inc., and Kenneth W. Monfort and Samuel D. Addams.

Janice Chapman, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., was also on brief), for defendants-appellees Robert Angelloti, D.W. Anderson, Walter H. Huber and Joseph Blair.

Before HOLLOWAY, Chief Judge, and SETH and McKAY, Circuit Judges.

HOLLOWAY, Chief Judge.

Plaintiff-appellant Cleo F. Shoultz timely appeals the dismissal of his action and amended complaint for failure to state a claim upon which relief may be granted. Plaintiff brought this action under 28 U.S.C. Secs. 1331 and 1343, 42 U.S.C. Secs. 1985 and 1986, and 21 U.S.C. Sec. 675. ¹ We affirm.

I

Plaintiff Shoultz was employed as a meat inspector by the United States Department of Agriculture (USDA) Food Safety and Quality Service, Meat and Poultry Inspection Program. Before October 4, 1977, he was assigned to inspection duties at the Greeley, Colorado, meat processing and packing plant of defendant Monfort of Colorado, Inc. (defendant company). Plaintiff alleged that he required compliance with the appropriate statutes, rules and regulations but that defendant company and its individual officers, Kenneth W. Monfort and Samuel D. Addoms, knowingly and intentionally violated USDA regulations and sought to have the USDA discharge him from his employment. Plaintiff alleged that, as a result of this action, the remaining defendants as officials of the USDA (federal defendants) ousted plaintiff from his position at the defendant company and transferred him to another jurisdiction. I R. 17-23.

The amended complaint contains three separate claims for relief. In his first claim, plaintiff alleged that the defendant company and defendants Monfort and Addoms conspired with each other and with the federal defendants to prevent plaintiff from holding his office under the United States or from discharging his duties and to induce plaintiff to leave Colorado and to injure him or his property on account of his lawful discharge of the duties of his office, all in violation of 42 U.S.C. Sec. 1985(1). Plaintiff also alleged that the federal defendants, having knowledge that these acts were about to be committed, and having power to prevent or aid in preventing the commission of the same, neglected and refused to do so, all in violation of 42 U.S.C. Sec. 1986.

In his second claim, plaintiff alleged that on or about May 25, 1977, he received a serious on-the-job injury at defendant company for which defendant company is liable. Plaintiff also alleged that he refused to sign a release to defendant company and as a result, the company and defendants Monfort and Addoms conspired with each other and with the federal defendants to induce and persuade plaintiff's employer to discharge him. In doing so, plaintiff alleged defendants conspired to deter plaintiff from initiating an action for recovery for the damages he suffered, all in violation of 42 U.S.C. Sec. 1985(2). In his third claim, plaintiff alleged that the federal defendants violated his Fifth Amendment rights, and in particular, his right to initiate and prosecute a civil action for damages in any court of the United States. In each claim plaintiff alleged that the acts were done maliciously. I R. 23-27.

After a hearing on defendants' motions, the district court dismissed the amended complaint. I R. 32. In dismissing as to the federal defendants the court stated that "[a]s to the implied remedy under the Meat Inspection Act, the remedy if any is criminal and I find no intent on the part of Congress to imply a tort remedy." III R. 30. The court stated that as to the constitutional tort theory, "the constitutional tort is a tort having to do with principles of constitutional law." Id. "It does not have to do with ... employer-employee relationships." Id. "I don't think that the courts have gone so far as to say they're going to extend the statutes to create implied abilities to get into the federal courts." Id. "But, more importantly, federal employees have employment rights ... greater than the rights of anyone else." Id. at 31. He also stated that he didn't think it was possible to state a claim for relief against the federal defendants for exercising authority under what he "believe[d] to be their qualified immunity." Id.

The court also dismissed as to the non-federal defendants, stating that "a claim can be pleaded under state law for tortious interference with contract" and expressing doubt that there was diversity of citizenship, id. at 32-34, which we note was not averred in the amended complaint here. The judge relied on Stern v. United States Gypsum Inc., 547 F.2d 1329 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977).

On appeal, plaintiff contends that he has stated a claim on which relief can be granted under 42 U.S.C. Sec. 1985; that he has a valid claim under federal common law; that he has averred a claim on which relief can be granted under the constitutional tort doctrine; and that the federal defendants are not immune, as a matter of law, under the circumstances of this case.

II

We must, of course, follow the rule that

a complaint should not be dismissed for failure to state a claim unless 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, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). The well-pleaded material allegations of the complaint are liberally read and accepted for the purposes of this appeal as true. Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-75, 86 S.Ct. 347, 348-49, 15 L.Ed.2d 247 (1965).

As to his 42 U.S.C. Sec. 1985 claim against the non-federal defendants, plaintiff says that the ruling in Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1344 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977), relied on by the district judge, should not be applied here. Stern held that a Sec. 1985(1) complaint is insufficient if it only alleges injury resulting from complaints about the plaintiff officer's official performance, lodged by the defendants with the officer's government superiors. The court reasoned that it should not lightly impute to Congress an intent to invade the right to petition the Government for redress of grievances, and that it was not persuaded that Congress intended Sec. 1985(1) to curtail efforts for redress in these circumstances which involved complaints about IRS agents. Plaintiff says that while the right to petition for redress of grievances is important, this right must be balanced against the extremely strong public interest in the integrity of the meat inspection program and public confidence in this program; if meat packing companies are able to cause the removal of inspectors because of their vigorous enforcement of the law, these inspectors will think twice before performing their duties.

We agree with the district court that the Stern rationale should apply here. The alleged complaints by the non-federal defendants to the plaintiff's government superiors in the Department of Agriculture here are analogous to the complaints about the I.R.S. agent to his superiors in Stern. The First Amendment right to petition for a redress of grievances is implicated here as well. We are likewise "not persuaded that Congress intended the language of Sec. 1985(1) to curtail this type of redress-seeking under any circumstances." Stern, 547 F.2d at 1345; see also Bradley v. Computer Sciences Corp., 643 F.2d 1029, 1033 (4th Cir.), cert. denied, 454 U.S. 940, 102 S.Ct. 476, 70 L.Ed.2d 248 (1981). Thus we conclude that it was proper to dismiss as to the non-federal defendants the Sec. 1985(1) claim alleging prevention of performance of duties by the plaintiff.

There are allegations in the second cause of action in the amended complaint of a claim under 42 U.S.C. Sec. 1985(2) of obstructing justice and intimidating a party, witness or juror "in any court of the United States ..." This claim is based on allegedly negligent injury of plaintiff at the plant of defendant Monfort of Colorado, Inc., when a hind quarter of beef broke loose from a conveyor belt and injured plaintiff. In essence, plaintiff alleged that the non-federal defendants sought to procure a release and to persuade and induce plaintiff not to file an action for the injuries suffered, and that they conspired to deter, by force, intimidation or threat, plaintiff's initiating, prosecuting and testifying in an action for the damages he suffered.

We note, however, that the plaintiff did not allege that there was any basis for a diversity action against Monfort of Colorado, Inc., which could be prosecuted in a federal district court, or any federal question claim which might be maintained in the federal courts. Since Sec. 1985(2) concerns only such acts of conspiracy, force, intimidation or threat against "any party or witness in any court of the United States," no viable claim under Sec. 1985(2) is stated. This provision does not support a claim for such interference with a proceeding in a state court. Since allegations are not made here that the plaintiff was injured by obstruction of a federal court proceeding, a Sec. 1985...