Zahorik v. Trott

• Court: U.S. District Court — Southern District of Texas
• Writing for the Court: JOHN R. FROESCHNER UNITED STATES MAGISTRATE JUDGE
• Decision Date: 05 May 2016
• Docket Number: CIVIL ACTION NO. G-13-248
• Citation: Zahorik v. Trott, CIVIL ACTION NO. G-13-248 (S.D. Tex. May 05, 2016)
• Parties: VINCENT ZAHORIK Plaintiff, v. TRACY TROTT, et al., Defendants.

VINCENT ZAHORIK Plaintiff, v. TRACY TROTT, et al., Defendants.

CIVIL ACTION NO. G-13-248

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

May 5, 2016

OPINION AND ORDER

Before the Court, with the consent of the Parties, is the "Motion to Dismiss" of Defendants Jeremy Kylen, Mark Pilsner, Gilbert Gomez, Henry Porretto and the City of Galveston, Texas. (Dkt. No. 51). In the Motion, Defendants seek the dismissal of all claims alleged against them by Plaintiff. Defendants' Motion, having been adequately briefed, is ripe for consideration. Having now considered the Parties' submissions and the applicable law the Court issues this Opinion and Order.

I. BACKGROUND

Plaintiff Vincent Zahorik (Zahorik) filed this civil rights complaint on July 10, 2013, against, inter alios, these Defendants. Zahorik has alleged numerous violations of his constitutional rights, including a conspiracy to commit them by all of the named Defendants, along with state law claims. Zahorik's claims are all based on his belief that his "federally protected credit report was unlawfully accessed by Defendants in an attempt to vindictively prosecute him for filing bona-fide complaints with the FBI as well as collaborating with reporters in exposing corruption by law enforcement personnel" during, what has now allegedly become, an inter-state conspiracy to have Zahorik "arrested to prevent available redress in federal proceedings." (Dkt. No. 1).

Unfortunately, for Zahorik, after he filed a report with Officer Kylen of the Galveston Police Department (GPD) claiming he was the victim of Identity Theft and did not know who was responsible, an investigation was conducted by GPD. GPD's investigation determined that Zahorik's statement to its officer was false because, at the time Zahorik made the report, he knew that he was not the victim of Identity Theft. As a result, GPD brought a criminal charge against Zahorik for making a false report to a peace officer, pursuant to Texas Penal Code §37.08. Zahorik was then tried in state court¹ and, on August 21, 2013, a jury found beyond a reasonable doubt that Zahorik had committed the office and returned a verdict of "Guilty of False Report to a Police Officer" as charged in the Information. The state court entered judgment against Zahorik on August 22, 2013.

Following Zahorik's conviction in state court, this Court dismissed the instant civil rights action and entered a final judgment as to the Tennessee Defendants based on lack of jurisdiction. In terms of the Texas Defendants,² the Court dismissed Zahorik's claims against them with prejudice to being reasserted until the Heck conditions were met. On September 9, 2015, nearly two years after a jury found him guilty, Zahorik was successful in overturning his state court conviction and, thereafter, he moved this Court to re-open his civil rights action. (Dkt. No. 113). The Court granted Zahorik's motion to re-open as to the Texas Defendants and returned the Complaint to the active docket. (Dkt. No. 124). With the case re-opened, the "Defendants' Kylen, Pilsner, Gomez, Porretto and City Motion to Dismiss" (Dkt. No. 51), to which Zahorik filed a response (Dkt. No. 62), is ripe for adjudication.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss an action for "failure to state a claim upon which relief may be granted." FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "the court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5^th Cir.2007); see also, Scanlan v. Texas A&M Univ., 343 F.3d 533, 536 (5^th Cir. 2003). A court should not dismiss a complaint for failure to state a claim unless the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." In re Katrina, 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, (2007)). However, this requires more from a plaintiff than pleadings consisting only of "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662 (2009); Twombly, 550 U.S. at 550 (explaining that "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" ). Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." In re Katrina, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555) (internal quotation marks, citations, and footnote omitted). In other words, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft, 129 S.Ct. at 1950. "Determining whether a complaint states a plausible claim for relief is a "context-specific task" which "requires the reviewing court to draw on its judicial experience and common sense." Id. at 1949. "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. at 1950.

III. DISCUSSION

A. The Heck Bar

Defendants argue that Zahorik's claims are barred by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). Since Zahorik's conviction has been set-aside (Dkt. No. 62 at 5), this argument must now be REJECTED.

B. Claims Brought Under Federal Law

Zahorik asserts a number of different causes of action against Defendants based on federal law. Defendants maintain, for various reasons, that each of Zahorik's federal claims must be dismissed. The Court will address each claim in turn.

1. Federal Fair Credit Reporting Act

In his fourth claim for relief, Zahorik purports to broadly allege that Defendants violated "Section 619 of the Federal Fair Credit Reporting Act [FCRA] (15 U.S.C. §1681(q))."³ (Dkt. No. 1 at 44). Based on Zahorik's pleadings and the many exhibits attached thereto, there are no factual allegations that any of the Texas Defendants accessed his credit report in violation of the statute. Accordingly, to the extent asserted against these Defendants, this claim is DISMISSED.

2. Claims Brought Under 42 U.S.C. §1985

Zahorik alleges that Defendants engaged in a conspiracy under §1985 to deprive him of his rights. Although §1985 provides a cause of action for several types of conspiracies under subsections one through three, Zahorik does not expressly cite to the portion or portions of the statute upon which he relies. 42 U.S.C. § 1985.⁴

Defendants, interpreting Zahorik's claims under subsection 3, argue that dismissal is warranted because Zahorik fails to allege facts showing a conspiracy to either deprive a class of persons of equal protection of the law or class-based invidious discriminatory animus. Insofar as Zahorik could be heard to allege that Defendants conspired to violate his rights under 42 U.S.C. § 1985(3), the Court would agree that dismissal was warranted. To state a cognizable claim under § 1985(3), a plaintiff must allege that "(1) the defendants conspired (2) for the purposes of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, and (3) one or more of the conspirators committed some act in furtherance of the conspiracy, whereby (4) another person is injured in his person or property or deprived of having and exercising any right or privilege of a citizen of the United States, and (5) the action of the conspirators is motivated by a racial animus." Wong v. Stripling, 881 F.2d 200, 202-03 (5^th Cir.1989); see also, Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 270 (5^th Cir.2001). In the present case, Zahorik's complaint against these Defendants is entirely devoid of any factual allegations from which one could conclude that either any race-based conspiracy or any class-based invidious discriminatory animus existed. See Wong, 881 F.2d at 202-203. (a plaintiff asserting a § 1985 claim must plead the operative facts upon which his claim is based); Holdines v. Stroud, 808 F.2d 417, 424 (5^th Cir. 1987) (a plaintiff must plead this claim with some specificity and conclusory or bald allegations are inadequate).

However, in his response to Defendants' Motion to Dismiss Zahorik explains that he brought his §1985 conspiracy claim under subsection 2. (Dkt. No. 62 at 8-9). Subsection 2 contains two parts. 42 U.S.C. § 1985(2). The first part "proscribes conspiracies that interfere with the administration of justice in federal court, and the second part proscribes conspiracies that interfere with the administration of justice in state court." Daigle v. Gulf State Utilities Co., Local Union No. 2286, 794 F.2d 974, 979-980 (5^th Cir. 1986). Zahorik fails to state a plausible claim under either part of subsection 2. Initially, while the first part of § 1985(2) does not require race or class-based animus (Kush v. Rutledge, 460 U.S. 719, 727 (1983)), it does require that there has been an interference with the federal court system. Seeley v. Brotherhood of Painters, Decorators & Paper Hangers of America, 308 F.2d 52, 58 (5^th Cir. 1962); see, Kush v. Rutledge, 460 U.S. 719 (1983). Zahorik's pleadings contain no factual allegations which would bring his contentions within the confines of the first part of § 1985(2). Turning to the second part, the Fifth Circuit has directed that the race or class-based animus requirement of §1985(3) also applies to claims under the second part of § 1985(2). Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 346 (5^th Cir. 1981). As discussed, Zahorik's pleadings fail to allege any facts to satisfy these requirements, as such, he has failed to state a claim under the...