Jiang v.

Porter et al

Doc. 61

UNI TED STATES DI STRI CT COURT

EASTERN DI STRI CT OF MI SSOURI
EASTERN DI VI SI ON
REV. XI U HUI JOSEPH JI ANG,
Plaint iff,
vs.
TONYA LEVETTE PORTER, et al.,
Defendant s.

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Case No. 4: 15- CV- 1008 ( CEJ)

M EM ORAN D UM AN D ORD ER
This m at t er is before t he Court on t he m ot ion of defendant s Survivors
Net work of Those Abused by Priest s, David Clohessy, and Barbara Dorris t o dism iss
pursuant t o Mo. Rev. St at . 537.528 or, in t he alt ernat ive, for failure t o st at e a
claim pursuant t o Fed. R. Civ. P. 12( b) ( 6) .

Plaint iff has responded in opposit ion,

and t he issues are fully briefed.

I.

Ba ck gr ou n d

Plaint iff Reverend Xiu Hui Joseph Jiang is Chinese- born ordained Cat holic
priest in t he Archdiocese of St . Louis. Jiang assert s t hat defendant s A.M. and N.M.
falsely accused him of sexually abusing t heir m inor son for t he purpose of m onet ary
gain.

Jiang also assert s t hat defendant s Jaim ie D. Pit t erle and Tonya Levet t e

Port er, officers of t he St . Louis Met ropolit an Police Depart m ent , conduct ed an
inadequat e invest igat ion

of

t he abuse allegat ions and t arget ed plaint iff

for

prosecut ion because of his religion and et hnicit y. He alleges t hat defendant Cit y of
St . Louis failed t o properly t rain t he officers and t hat t he officers conduct was t he
result of t he cit ys unconst it ut ional policies and pract ices. Jiang furt her assert s t hat
defendant s Survivors Net work of Those Abused by Priest s, it s execut ive direct or

Dockets.Justia.com

David Clohessy, and it s regist ered agent in Missouri Barbara Dorris ( t he SNAP
defendant s ) led a public sm ear cam paign against him which included m aking false
accusat ions of child m olest at ion in t he m edia.

The crim inal case against Jiang

rem ained pending in st at e court from April 17, 2014 unt il June 17, 2015, when it
was volunt arily dism issed short ly before t rial.
The fift een- count com plaint consist s of t he following claim s:

religious

discrim inat ion, select ive enforcem ent and prosecut ion based on religion, race and
nat ional origin, and conduct shocking t he conscience, all in violat ion of 42 U.S.C.
1983, against defendant s Port er and Pit t erle ( Count s I VI ) ; conspiracy t o violat e
civil right s, in violat ion of 42 U.S.C. 1985, against defendant s except t he Cit y of
St . Louis ( Count VI I ) ; willful, m alicious and reckless official act s in violat ion of
Missouri law against defendant s Port er and Pit t erle ( VI I I ) ; vicarious liabilit y and
Monell claim s for unconst it ut ional policy and pract ice and failure t o t rain and
supervise against defendant Cit y of St . Louis ( Count s I XXI ) ; abuse of process
against defendant s Port er, Pit t erle, A.M. and N.M. ( Count XI I ) ; int ent ional inflict ion
of em ot ional dist ress against all defendant s except t he Cit y of St . Louis ( Count
XI I I ) ; and defam at ion against A.M., N.M., and t he SNAP defendant s ( Count s XI V
XV) .

Plaint iff seeks m onet ary and inj unct ive relief.
D iscu ssion
I n t he inst ant m ot ion, t he SNAP defendant s argue t hat t he com plaint should

be dism issed as a st rat egic law suit against public part icipat ion. I n t he alt ernat ive,
defendant s argue t hat plaint iff has failed t o st at e a claim against t hem .
A.

M issou r is An t i- SLAPP St a t u t e

Missouri has a st at ut e designed t o discourage st rat egic lawsuit s against

public part icipat ion.
Ant i- SLAPP

Laws,

Mo. Rev. St at . 537.528; Public Part icipat ion Proj ect , St at e

ht t p: / / w w w.ant i- slapp.org/ your- st at es- free- speech- prot ect ion/

( last visit ed August 14, 2015) . 1

Pursuant t o Missouris ant i- SLAPP st at ut e, [ a] ny

act ion against a person for conduct or speech undert aken or m ade in connect ion
wit h a public hearing or public m eet ing, in a quasi- j udicial proceeding before a
t ribunal or a decision- m aking body of t he st at e or any polit ical subdivision of t he
st at e is subj ect t o special m ot ions t o dism iss, for j udgm ent on t he pleadings, or for
sum m ary j udgm ent , and t hese m ot ions are t o be considered on a priorit y or
expedit ed basis by t he court t o prevent t he expense of lit igat ion.

537.528.1;

Moschenross v. St . Louis Cnt y., 188 S.W.3d 13, 24 ( Mo. Ct . App. 2006) ; see also
Cedar Green Land Acquisit ion, LLC v. Baker, 212 S.W.3d 225, 227 ( Mo. Ct . App.
2007) ( not ing t hat t he Missouri legislat ure has recognized t he im port ance of
expedit ed j udicial considerat ion and prevent ion of unnecessary lit igat ion expenses
for [ SLAPP] act ions ) ( int ernal quot at ions om it t ed) .
However, t he st at ut e does not prohibit or curt ail t he exercise of a right or
rem edy of a part y grant ed pursuant t o anot her const it ut ional, st at ut ory, com m on
law

or

adm inist rat ive provision,

537.528.5.

including civil act ions for

defam at ion.

Therefore, t he st at ut e does not provide any special defenses or

im m unit ies; inst ead, it recognizes t hat m any such suit s are int ended t o prevent
part icipat ion in governm ent al m at t ers and accelerat es t he considerat ion of m ot ions

The acrony m SLAPP was first coined in 1988 t o describe a t ype of j udicial recourse in which
com m ercial int erest s at t em pt t o int im idat e cit izens who ot herwise would exercise t heir const it ut ionally
prot ect ed right s of free speech and pet it ion in order t o prot est against t hose int erest s. See Penelope
Canan & George W. Pring, St rat egic Lawsuit s Against Public Part icipat ion, 35 Soc. Probs. 506 ( 1988) ;
Penelope Canan & George W. Pring, St udying St rat egic Law suit s Against Public Part icipat ion: Mixing
Quant it at ive and Qualit at ive Approaches, 22 Law & Societ y Rev. 385 ( 1988) .

t o dispose of such obst ruct ive effort s.

Hallm ark Cards, I nc. v. Monit or Clipper

Part ners, LLC, No. 08- 840- CV- W- ODS, 2010 WL 4853848, at * 1 ( W.D. Mo. Nov. 22,
2010) . The st at ut e, t hus, is a procedural st at ut e w it h rem edial provisions.
The SNAP defendant s argue t hat t he com plaint const it ut es a st rat egic law suit
against public part icipat ion and t hus should be dism issed pursuant t o Mo. Rev. St at .
537.528.

I n arguing t hat t he requisit e elem ent s of t he st at ut e are m et ,

defendant s cont end t hat t he prior st at e crim inal proceedings against plaint iff
const it ut ed a public m eet ing in a quasi- j udicial proceeding.

537.528.4.

However, [ r] ead in cont ext , t he phrase public hearing refers t o hearings held by
legislat ive, adm inist rat ive, and execut ive agencies of t he t ype referred t o in
subsect ion four of t he st at ut e.

Hallm ark Cards, I nc., 2010 WL 4853848, at * 1;

see 537.528.4 ( As used in t his sect ion, a public m eet ing in a quasi- j udicial
proceeding m eans and includes any m eet ing est ablished and held by a st at e or
local governm ent al ent it y, including wit hout lim it at ions m eet ings or present at ions
before st at e, count y, cit y, t ow n or village councils, planning com m issions, review
boards or com m issions. ) .
proceedings.

Conspicuous by absence is any reference t o j udicial

Hallm ark Cards, I nc., 2010 WL 4853848, at * 1.

I ndeed, [ u] se of

t he phrase public hearing seem s t o be an aw kward way t o describe j udicial

proceedings, part icularly in light of t he st at ut es ot her provisions indicat ing t hat t he
act ivit y t o be prot ect ed is involvem ent in public debat e, t he legislat ive process, and
ot her aspect s relat ed t o t he represent at ive branches of governm ent . I d.
Furt herm ore, by t he plain m eaning of t he st at ut ory language, Missouris ant iSLAPP st at ut e excludes j udicial proceedings. As defined, quasi- j udicial refers t o,
relat es t o, or involves an execut ive or adm inist rat ive officials adj udicat ive act s.

Blacks Law Dict ionary ( 10t h ed. 2014) ; see also St at e ex rel. McNary v. Hais, 670
S.W.2d 494, 496 ( Mo. banc 1984) ( Quasi- j udicial is [ a] t erm applied t o t he act ion
. . . of public adm inist rat ive officers or bodies, who are required t o invest igat e fact s,
or ascert ain t he exist ence of fact s, hold hearings, and draw conclusions from t hem ,
as a basis for t heir official act ion, and t o exercise discret ion of a j udicial nat ure. )
( quot ing Blacks Law Dict ionary 1121 ( 5t h ed. 1979) ) . The t erm public hearing,
as used in Missouri st at ut es, consist ent ly refers t o legislat ive, execut ive or
adm inist rat ive proceedings, rat her t han j udicial proceedings. See Pl.s Ex. A Mo.
St at ut ory References t o Public Hearing [ Doc. # 22- 1] ( collect ing st at e st at ut es) ;
cf. W. Va. Univ. Hosps., I nc. v. Casey, 499 U.S. 83, 8892 ( 1991) ( referring t o feeshift ing provisions in ot her st at ut es t o int erpret t he phrase a reasonable at t orneys
fee in 42 U.S.C. 1988) . As such, Missouris ant i- SLAPP st at ut e does not apply t o
j udicial proceedings.
The Court agrees wit h plaint iff t hat t he SNAP defendant s reliance on
Californias ant i- SLAPP st at ut e and t he case law int erpret ing t hat st at ut e is
m isplaced.

Californias ant i- SLAPP st at ut e is m uch broader t han Missouris,

explicit ly including j udicial proceedings and im posing a height ened subst ant ive
st andard for a plaint iff t o defeat an ant i- SLAPP m ot ion. See Cal. Civ. Pro. Code
425.16( e) ( 2) ( st at ing t hat an act in furt herance of a persons right of pet it ion or
free speech under t he Unit ed St at es or California Const it ut ion in connect ion wit h a
public issue includes . . . any writ t en or oral st at em ent or writ ing m ade in
connect ion wit h an issue under considerat ion or review by a legislat ive, execut ive,
or

j udicial

body,

or

any

ot her

official

proceeding

aut horized

by

law ) ;

425.16( b) ( 1) ( 2) ( st at ing t hat in opposing a special m ot ion t o st rike a plaint iff is

required t o est ablish[ ] t hat t here is a probabilit y t hat t he plaint iff will prevail on
t he claim t hrough t he pleadings, and support ing and opposing affidavit s ) ; see
also Hallm ark Cards, I nc., 2010 WL 4853848, at * 1 ( Defendant s insist ot her st at es
would view t he m at t er different ly. The easy answer t o t his is: t he Missouri st at ut e
is at issue, not t he laws of ot her st at es. ) .

Accordingly, t he SNAP defendant s are

not ent it led t o dism issal of t he com plaint on t he basis of Missouris ant i- SLAPP
st at ut e.
B.

Su fficie n cy of t h e Ple a din gs

The SNAP defendant s also cont end t hat t he com plaint fails t o a st at e a claim
against t hem upon which relief can be grant ed. See Fed. R. Civ. P. 12( b) ( 6) . The
purpose of a m ot ion t o dism iss under Rule 12( b) ( 6) is t o t est t he legal sufficiency of
t he com plaint . Fed. R. Civ. P. 12( b) ( 6) . The fact ual allegat ions of a com plaint are
assum ed t rue and const rued in favor of t he plaint iff, even if it st rikes a savv y
j udge t hat act ual proof of t hose fact s is im probable.

Bell At lant ic Corp. v.

Twom bly, 550 U.S. 544, 556 ( 2007) ( cit ing Swierkiewicz v. Sorem a N.A., 534 U.S.
506, 508 n.1 ( 2002) ) ; Neit zke v. William s, 490 U.S. 319, 327 ( 1989) ( Rule
12( b) ( 6) does not count enance . . . dism issals based on a j udges disbelief of a
com plaint s fact ual allegat ions. ) ; Scheuer v. Rhodes, 416 U.S. 232, 236 ( 1974)
( st at ing t hat a well- pleaded com plaint m ay proceed even if it appears t hat a
recovery is very rem ot e and unlikely ) .

The issue is not whet her t he plaint iff will

ult im at ely prevail, but whet her t he plaint iff is ent it led t o present evidence in
support of his claim .

Scheuer, 416 U.S. at 236.

A viable com plaint m ust include

enough fact s t o st at e a claim t o relief t hat is plausible on it s face. Twom bly, 550
U.S. at 570; see id. at 563 ( st at ing t hat t he no set of fact s language in Conley v.

Gibson, 355 U.S. 41, 4546 ( 1957) , has earned it s ret irem ent ) ; see also Ashcroft
v. I qbal, 556 U.S. 662, 67884 ( 2009) ( holding t hat t he pleading st andard set fort h
in Twom bly applies t o all civil act ions) .

Fact ual allegat ions m ust be enough t o

raise a right t o relief above t he speculat ive level. Twom bly, 550 U.S. at 555.
1.

Con spir a cy t o Viola t e Civil Righ t s

I n Count VI I , plaint iff alleges t hat t he SNAP defendant s conspired wit h t he

ot her defendant s t o violat e plaint iffs civil right s, in violat ion of 42 U.S.C. 1985.
To show a civil right s conspiracy under 1985( 3) , plaint iff m ust prove:

( 1) t he

defendant s conspired, ( 2) wit h t he int ent t o deprive [ him ] , eit her direct ly or
indirect ly, of equal prot ect ion of t he laws, or equal privileges and im m unit ies under
t he law s, ( 3) an act in furt herance of t he conspiracy, and ( 4) t hat [ he] or [ his]
propert y [ was] inj ured, or [ he was] deprived of exercising any right or privilege of a
cit izen of t he Unit ed St at es. Barst ad v. Murray Cnt y., 420 F.3d 880, 887 ( 8t h Cir.
2005) .

Defendant s cont end t hat t he com plaint cont ains no allegat ion of an

agreem ent am ong t he SNAP defendant s or wit h any ot her defendant .

The first elem ent of a civil right s conspiracy claim requires evidence of
specific fact s t hat show a m eet ing of m inds am ong conspirat ors.

I d.

[ T] he

plaint iff m ust allege wit h part icularit y and specifically dem onst rat e wit h m at erial
fact s t hat t he defendant s reached an agreem ent .

Cit y of Om aha Em ployees

Bet t erm ent Assn v. Cit y of Om aha, 883 F.2d 650, 652 ( 8t h Cir. 1989) . A plaint iff
can sat isfy t his burden by point ing t o at least som e fact s which would suggest t hat
[ t he alleged conspirat ors] reached an underst anding t o violat e [ his] right s.
( int ernal quot at ions om it t ed) .

I d.

Wit h respect t o t he alleged conspiracy bet ween t he SNAP defendant s, t he

police officer defendant s, and t he defendant parent s, t he com plaint assert s t hat t he
SNAP defendant s engaged in a sm ear cam paign against plaint iff, falsely accusing
him of m olest ing t he m inor child for t he purpose of adversely influencing t he j ury
pool in any t rial and t o place pressure on t he Cit y of St . Louis and t he police
defendant s t o m aint ain t he prosecut ion against plaint iff despit e evidence of his
innocence. Com pl. at 1, 8384 [ Doc. # 1] . The com plaint also alleges t hat t he
SNAP defendant s deliberat ely coordinat ed t heir defam at ory st at em ent s about
plaint iff t o support and assist A.M. and N.M. in t heir conspiracy wit h police
defendant s t o deprive plaint iff of his civil right s, t im ing t heir public accusat ions t o
coincide w it h crit ical event s of plaint iffs crim inal case.

I d. at 81( g) , ( i) , 85.

Moreover, t he com plaint provides specific det ails of coordinat ed public st at em ent s
m ade by each of t he SNAP defendant s as a part of t heir larger sm ear cam paign.
I d. at 76, 81, 85.
Accept ing t he fact ual allegat ions in t he com plaint as t rue for purposes of t he
inst ant m ot ion, t he Court finds t hat plaint iff has point ed t o at least som e fact s
suggest ing

t hat

defendant s

had

m eet ing

underst anding t o violat e plaint iffs civil right s.

of

t he

m inds

or

reached

an

Defendant s do not challenge t he

sufficiency of t he com plaint wit h respect t o t he rem aining elem ent s of an alleged
civil right s conspiracy.

Thus, t he Court will deny t he SNAP defendant s m ot ion t o

dism iss Count VI I for failure t o st at e a claim .

2.

I n t e n t ion a l I n flict ion of Em ot ion a l D ist r e ss

I n Count XI I I , plaint iff alleges t hat t he police defendant s, A.M., N.M., and t he
SNAP defendant s int ent ionally inflict ed em ot ional dist ress upon him in t heir

conduct , including but not lim it ed t o arrest ing and prosecut ing him because of
et hnic and religious anim us, publicly accusing him of com m it t ing crim es w it hout
reasonable belief t hat he had done so, and depriving him of his personal libert y and
right t o pract ice his religion and religious vocat ion freely.

To st at e a claim for

int ent ional inflict ion of em ot ional dist ress under Missouri law, a plaint iff m ust plead
ext rem e and out rageous conduct by a defendant who int ent ionally or recklessly
causes severe em ot ional dist ress t hat result s in bodily harm .
952 S.W.2d 239, 249 ( Mo. banc 1997) .

Gibson v. Brewer,

The conduct m ust be int ended only t o

cause ext rem e em ot ional dist ress t o t he vict im .

I d. ( quot ing K.G. v. R.T.R., 918

S.W.2d 795, 799 ( Mo. banc 1996) ) .

The SNAP defendant s first argue t hat t he com plaint fails t o st at e a claim
against t hem because t he em ot ional dist ress plaint iff claim s t o have suffered
result ed prim arily from t he accusat ion against him and his arrest , incident s in which
t he SNAP defendant s were not involved. However, t he com plaint does not m erely
assert t hat plaint iff suffered em ot ional dist ress because of t he init ial accusat ion and
his arrest .

Rat her, t he com plaint alleges t hat t he SNAP defendant s cont inued

pressure on st at e act ors and t he m inors parent s t o persist in plaint iffs prosecut ion,
t heir ongoing cam paign t o inflam e public opinion against plaint iff, and t heir effort s
t o influence a prospect ive j ury pool in a crim inal or civil t rial t hrough adverse
publicit y t arget ing plaint iff over t he course of several years caused him t o suffer
severe em ot ional dist ress, loss of sleep and appet it e, and ot her harm .
7685.

Com pl. at

These fact ual allegat ions sufficient ly est ablish t he SNAP defendant s

involvem ent in t he alleged int ent ional inflict ion of em ot ional dist ress.

Addit ionally, defendant s assert t hat plaint iff failed t o allege any conduct on
t he part of t he SNAP defendant s t hat rises t o t he level of ext rem e and
out rageous.

The conduct in a claim of int ent ional inflict ion of em ot ional dist ress

m ust have been so out rageous in charact er, and so ext rem e in degree, as t o go
beyond all possible bounds of decency, and t o be regarded as at rocious, and ut t erly
int olerable in a civilized com m unit y. Gibson, 952 S.W.2d at 249 ( quot ing Warrem
v. Parrish, 436 S.W.2d 670, 673 ( Mo. 1969) ) .

Defendant s cont end t hat t o t he

ext ent t hat plaint iff relies upon t heir alleged defam at ory st at em ent s for his
int ent ional inflict ion of em ot ional dist ress claim , t he claim should dism issed.

See

Rice v. Hodapp, 919 S.W.2d 240, 245 ( Mo. banc 1996) ( A cause of act ion for
int ent ional inflict ion of em ot ional dist ress does not lie when t he offending conduct
consist s only of a defam at ion. ) ( int ernal quot at ions om it t ed) .
I n Missouri, [ i] t is for t he court t o det erm ine, in t he first inst ance, whet her
t he defendant s conduct

m ay

reasonably

out rageous as t o perm it recovery.

be regarded

as so

ext rem e and

Wilt v. Kansas Cit y Area Trans. Aut h., 629

S.W.2d 669, 671 ( Mo. Ct . App. 1982) . I n m aking such a det erm inat ion, t he court is
t o decide whet her an average m em ber of t he com m unit y would t erm such
conduct out rageous.
( Am . Law I nst . 1965) ) .

I d. ( quot ing Rest at em ent ( Second) of Tort s 46 cm t . d

I t m ust be beyond m ere insult s, indignit ies, t hreat s,

annoyances, pet t y oppressions, or ot her t rivialit ies.

J.R. v. P.B.A., 773 S.W.2d

235, 236 ( Mo. Ct . App. 1989) .

Plaint iffs int ent ional inflict ion of em ot ional dist ress claim against t he SNAP
defendant s does not rely solely on act s of defam at ion and goes beyond m ere
insult s, annoyances or t rivialit ies. The com plaint alleges t hat t he SNAP defendant s

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engaged in a prolonged cam paign t o port ray plaint iff as a child m olest er, even aft er
crim inal charges against him w ere dism issed. See Cline v. Union Cnt y., I owa, 182
F. Supp. 2d 791, 799 ( S.D. I owa 2001) ( finding sum m ary j udgm ent inappropriat e
on a claim of int ent ional inflict ion of em ot ional dist ress based on rem aining fact ual
quest ions pert aining t o t he t im e, place and publicit y surrounding plaint iffs alleged
false arrest and m alicious prosecut ion) ; Hess v. Treece, 693 S.W.2d 792, 796 ( Ark.
1985) ( finding t he fact s est ablished out rageous conduct for an int ent ional inflict ion
of em ot ional dist ress claim when t he st at em ent s defendant direct ed against plaint iff
were t he driving force behind repeat ed police invest igat ions of plaint iff and
cont inued over a period of t wo years or m ore) . The Court finds t hat t hese fact ual
allegat ions are sufficient t o st at e a plausible claim for t he int ent ional inflict ion of
em ot ional dist ress against t he SNAP defendant s.

I t would be prem at ure at t his

st age in t he proceedings t o dism iss t his claim on t he basis of defendant s

t hreadbare cont ent ions in t he inst ant m ot ion.
3.

D e fa m a t ion

Defendant s argue t hat t he defam at ion claim should be dism issed because it
fails t o set fort h t he alleged defam at ory st at em ent s wit h sufficient specificit y.

In

part icular, defendant s t ake issue wit h t he qualificat ion in t he com plaint t hat t he
alleged defam at ory st at em ent s defendant s m ade include, but are not lim it ed t o,
t he following exam ples. Com pl. 81.
To prevail on a defam at ion claim in Missouri, a plaint iff m ust est ablish t hat
t he defendant m ade a defam at ory st at em ent t hat ident ified t he plaint iff, was false,
was published w it h t he requisit e degree of fault , and dam aged t he plaint iffs
reput at ion. Farrow v. Saint Francis Med. Ct r., 407 S.W.3d 579, 59899 ( Mo. banc

11

2013) .

I t is necessary t o st at e t he specific w ords which are argued t o be

defam at ory in order t o st at e a cause of act ion.

Tri- Cnt y. Ret reading, I nc. v.

Bandag, I nc., 851 S.W.2d 780, 785 ( Mo. Ct . App. 1993) ; see also Asay v. Hallm ar k
Cards, I nc., 594 F.2d 692, 699 ( 8t h Cir. 1979) ( st at ing t hat federal court s favor
specific pleading of defam at ion claim s because knowledge of t he exact language
used is necessary t o form responsive pleadings ) .
In

t he

com plaint ,

plaint iff

alleges

t en

specific

st at em ent s

t he

SNAP

defendant s m ade in press releases, t elevision int erview s, and newspaper art icles
falsely accusing him of sexually abusing a child, causing him severe and act ual
reput at ional harm .
defendant s

Com pl. 81( a) ( j ) , 16977.

defam at ory

st at em ent s

were

not

The addit ional allegat ion t hat

lim it ed

to

t hese

t en

specific

allegat ions does not cause plaint iffs specific allegat ions t o becom e t oo indefinit e t o
st at e a claim for defam at ion.

Defendant s have cit ed no aut horit y for t his

proposit ion and have not challenged t he sufficiency of t he specific defam at ory
st at em ent s alleged. As such, accept ing t he specific fact ual allegat ions as t rue, t he
Court finds t hat plaint iff has sufficient ly st at ed a claim against t he SNAP defendant s
for defam at ion.
*

For t he reasons set fort h above,

I T I S H EREBY ORD ERED t hat t he m ot ion of defendant s SNAP, David
Clohessy and Barbara Dorris t o dism iss [ Doc. # 9] is de n ie d.

____________________________
CAROL E. JACKSON
UNI TED STATES DI STRI CT JUDGE
Dat ed t his 28t h day of Decem ber, 2015.

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