Opinion
NO. 3-04-CV-0091-H
March 1, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge for initial screening pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se civil action brought by Plaintiff Charles Ray Smith against Defendant Albertson's Grocery Stores. On January 16, 2004, plaintiff tendered a 23-page complaint to the district clerk and filed an application for leave to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on February 13, 2004 and February 23, 2004. The court now determines that this case is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
Plaintiff filed supplemental interrogatory answers on February 23, 2004 in order to clarify some of his earlier responses.
II.
In October 2002, plaintiff purchased a Dallas Area Rapid Transit ("DART") pass from an Albertson's grocery store in Dallas, Texas. According to plaintiff, defendant sold him a senior citizen pass even though he was only 52 years old. Two weeks later, plaintiff boarded a DART train using his senior citizen pass. A transit officer confiscated the pass, ticketed plaintiff for theft of public services, and ordered him off the train. The next day, plaintiff called defendant and requested a written statement explaining the situation so he could get the ticket dismissed. Plaintiff alleges that the employee who took his phone call became "extremely abusive" and refused to help. Although the theft case was eventually dismissed, plaintiff fears that the charges will remain on his record. He also claims to have suffered mental anguish and emotional distress as a result of this ordeal. By this suit, plaintiff seeks more than $150,000 in damages.
DART is a regional transit agency authorized by Chapter 452 of the Texas Transportation Code. Customers may purchase passes for buses and trains at "DART Pass Outlets" such as Albertson's.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989);
Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Plaintiff asserts three distinct claims against defendant under federal and state law: (1) civil rights violations under 42 U.S.C. § 1983 2000e, et seq.; (2) defamation; and (3) malicious prosecution. The court will address each claim in turn.
1.
Plaintiff first contends that defendant violated his civil rights by selling him the wrong DART pass. In order to maintain a civil rights action under 42 U.S.C. § 1983, plaintiff must show that he has been deprived of a federally protected right by a person acting "under color of state law." 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988). Defendant is a private corporation, not a state actor. ( Spears Quest. #4). Private action may give rise to section 1983 liability only when the challenged conduct is "fairly attributable to the State." Bass v. Parkwood Hospital 180 F.3d 234, 241 (5th Cir. 1999).
In his supplemental interrogatory answers, plaintiff alleges that defendant was authorized to sell DART passes and "acted beyond the bounds of lawful authority by intentionally not issuing a workable or valid DART transit monthly pass and pretending to act in the performance of [its] official duty." (Supp. Spears Quest. #4). However, "the statutory authorization of private acts does not transform such conduct into state action." Bass, 180 F.3d. at 243. The fact that defendant sold plaintiff the wrong DART pass, intentionally or otherwise, is not actionable under 42 U.S.C. § 1983.
Nor can plaintiff sue defendant for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. These statutes "necessary involve an employment relationship." Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270, 272 (5th Cir.), cert. denied, 109 S.C.t 394 (1988), citing Broussard v. L.H. Bossier, Inc., 789 F.2d 1158, 1159 (5th Cir. 1986). See also 42 U.S.C. § 2000e-2(a)(1). Plaintiff acknowledges that he has never been employed by defendant. ( Spears Quest. #3). Consequently, this claim is without an arguable basis in fact or law.
2.
Plaintiff also asserts claims for defamation, libel and slander. Under Texas law, slander and libel are two types of defamation. See AccuBanc Mortgage Corp. v. Drummonds, 938 S.W.2d 135, 147 (Tex.App.-Fort Worth 1996, writ denied). Slander is a false oral statement that is published to a third person. Libel is the written counterpart to slander. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1985). Regardless of its form, publication is an essential element of defamation. See Houston Belt Terminal Ry. Co. v. Wherry, 548 S.W.2d 743, 751 (Tex.App. — Houston 1976, writ ref'd); Bozeman v. Watson Wyatt Co., 2003 WL 22938953 at *3 (N.D. Tex. Dec. 4, 2003). "Publication of defamatory words means to communicate orally, in writing, or in print to a third person." Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 335 (Tex.App. Dallas 1986, no writ).
When asked to explain how defendant communicated any false statement to a third person, plaintiff stated:
The DART Transit System is the third person. Upon the sale of the pass and receiving legal tendered monies, Albertson's represented themselves as a vendor of the pass, In turn, DART Transit System, the third person, terminated the use of the contract by issuing the citation.
(Supp. Spears Quest. #6). The DART pass sold to plaintiff by defendant does not constitute a "false statement" giving rise to a defamation claim. Even plaintiff recognizes as much, In his supplemental interrogatory answers, plaintiff alleges that an unidentified Albertson's sales clerk made false statements to him when confronted with the fact that he was sold the wrong pass. ( Id., Quest. #5). Nowhere does plaintiff contend that those false statements were communicated to a third party. Without evidence of publication, plaintiff cannot sue for slander, libel, or defamation. See e.g., Abbott v. Pollock, 946 S.W.2d 513, 520 (Tex.App.-Austin 1997, writ denied).
Plaintiff initially denied that defendant made any false statements. ( Spears Quest. #5).
3.
Finally, plaintiff sues for malicious prosecution under Texas law. Among the essential elements of such a claim is the absence of probable cause to initiate the prosecution. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Here, plaintiff cannot establish lack of probable cause. A DART transit officer ticketed plaintiff, a 52 year old man, because he was using a senior citizen pass to ride the train. This constituted probable cause to initiate a criminal prosecution for theft of public services. See Fields v. City of South Houston, Texas, 922 F.2d 1183, 1189 (5th Cir. 1991) (holding that probable cause requirement is satisfied if, at the time of arrest, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent person in believing that an offense had been committed). Assuming arguendo that defendant should have done more to clear up the matter before the case went to trial, that has no bearing on the issue of probable cause. See e.g., Bustamante v. Christian, 1997 WL 42530 at *6 (N.D. Tex. Jan. 29, 1997). This claim fails as a matter of law.
The Fifth Circuit has recently held that there is no "freestanding constitutional right" to be free from malicious prosecution. Castellano v. Fragozo, 352 F.3d 939, 945 (5th Cir. 2003) (en banc). As a result, any such claim arises exclusively under state law.
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).