Jiang v. Porter et al

Filing 61

MEMORANDUM AND ORDER re: IT IS HEREBY ORDERED that the motion of defendants SNAP, DavidClohessy and Barbara Dorris to dismiss [Doc. # 9 ] is denied.. Signed by District Judge Carol E. Jackson on 12/28/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REV. XIU HUI “JOSEPH” JIANG,
Plaintiff,
vs.
TONYA LEVETTE PORTER, et al.,
Defendants.

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

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendants Survivors
Network of Those Abused by Priests, David Clohessy, and Barbara Dorris to dismiss
pursuant to Mo. Rev. Stat. § 537.528 or, in the alternative, for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff has responded in opposition,
and the issues are fully briefed.
I.

Background

Plaintiff Reverend Xiu Hui “Joseph” Jiang is Chinese-born ordained Catholic
priest in the Archdiocese of St. Louis. Jiang asserts that defendants A.M. and N.M.
falsely accused him of sexually abusing their minor son for the purpose of monetary
gain.

Jiang also asserts that defendants Jaimie D. Pitterle and Tonya Levette

Porter, officers of the St. Louis Metropolitan Police Department, conducted an
inadequate investigation of the abuse allegations and targeted plaintiff for
prosecution because of his religion and ethnicity. He alleges that defendant City of
St. Louis failed to properly train the officers and that the officers’ conduct was the
result of the city’s unconstitutional policies and practices. Jiang further asserts that
defendants Survivors Network of Those Abused by Priests, its executive director

David Clohessy, and its registered agent in Missouri Barbara Dorris (the “SNAP
defendants”) led a public smear campaign against him which included making false
accusations of child molestation in the media.

The criminal case against Jiang

remained pending in state court from April 17, 2014 until June 17, 2015, when it
was voluntarily dismissed shortly before trial.
The fifteen-count complaint consists of the following claims:

religious

discrimination, selective enforcement and prosecution based on religion, race and
national origin, and conduct shocking the conscience, all in violation of 42 U.S.C. §
1983, against defendants Porter and Pitterle (Counts I–VI); conspiracy to violate
civil rights, in violation of 42 U.S.C. § 1985, against defendants except the City of
St. Louis (Count VII); willful, malicious and reckless official acts in violation of
Missouri law against defendants Porter and Pitterle (VIII); vicarious liability and
Monell claims for unconstitutional policy and practice and failure to train and
supervise against defendant City of St. Louis (Counts IX–XI); abuse of process
against defendants Porter, Pitterle, A.M. and N.M. (Count XII); intentional infliction
of emotional distress against all defendants except the City of St. Louis (Count
XIII); and defamation against A.M., N.M., and the SNAP defendants (Counts XIV–
XV).

Plaintiff seeks monetary and injunctive relief.
Discussion
In the instant motion, the SNAP defendants argue that the complaint should

be dismissed as a strategic lawsuit against public participation. In the alternative,
defendants argue that plaintiff has failed to state a claim against them.
A.

Missouri’s Anti-SLAPP Statute

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Missouri has a statute designed to discourage “strategic lawsuits against
public participation.” Mo. Rev. Stat. § 537.528; Public Participation Project, State
Anti-SLAPP

Laws,

http://www.anti-slapp.org/your-states-free-speech-protection/

(last visited August 14, 2015).1 Pursuant to Missouri’s anti-SLAPP statute, “[a]ny
action against a person for conduct or speech undertaken or made in connection
with a public hearing or public meeting, in a quasi-judicial proceeding before a
tribunal or a decision-making body of the state or any political subdivision of the
state” is subject to special motions to dismiss, for judgment on the pleadings, or for
summary judgment, and “these motions are to be considered on a priority or
expedited basis by the court to prevent the expense of litigation.”

§ 537.528.1;

Moschenross v. St. Louis Cnty., 188 S.W.3d 13, 24 (Mo. Ct. App. 2006); see also
Cedar Green Land Acquisition, LLC v. Baker, 212 S.W.3d 225, 227 (Mo. Ct. App.
2007) (noting that the Missouri legislature has “recognized the importance of
expedited judicial consideration and prevention of unnecessary litigation expenses
for [SLAPP] actions”) (internal quotations omitted).
However, the statute does not prohibit or curtail “the exercise of a right or
remedy of a party granted pursuant to another constitutional, statutory, common
law or administrative provision, including civil actions for defamation.”
537.528.5.

§

“Therefore, the statute does not provide any special defenses or

immunities; instead, it recognizes that many such suits are intended to prevent
participation in governmental matters and accelerates the consideration of motions

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The acronym “SLAPP” was first coined in 1988 to describe a type of judicial recourse in which
commercial interests attempt to intimidate citizens who otherwise would exercise their constitutionally
protected rights of free speech and petition in order to protest against those interests. See Penelope
Canan & George W. Pring, Strategic Lawsuits Against Public Participation, 35 Soc. Probs. 506 (1988);
Penelope Canan & George W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing
Quantitative and Qualitative Approaches, 22 Law & Society Rev. 385 (1988).

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to dispose of such obstructive efforts.”

Hallmark Cards, Inc. v. Monitor Clipper

Partners, LLC, No. 08-840-CV-W-ODS, 2010 WL 4853848, at *1 (W.D. Mo. Nov. 22,
2010). The statute, thus, is a procedural statute with remedial provisions.
The SNAP defendants argue that the complaint constitutes a strategic lawsuit
against public participation and thus should be dismissed pursuant to Mo. Rev. Stat.
§ 537.528.

In arguing that the requisite elements of the statute are met,

defendants contend that the prior state criminal proceedings against plaintiff
constituted a “public meeting in a quasi-judicial proceeding.”

§ 537.528.4.

However, “[r]ead in context, the phrase ‘public hearing’ refers to hearings held by
legislative, administrative, and executive agencies of the type referred to in
subsection four of the statute.”

Hallmark Cards, Inc., 2010 WL 4853848, at *1;

see § 537.528.4 (“As used in this section, a ‘public meeting in a quasi-judicial
proceeding’ means and includes any meeting established and held by a state or
local governmental entity, including without limitations meetings or presentations
before state, county, city, town or village councils, planning commissions, review
boards or commissions.”).

“Conspicuous by absence is any reference to judicial

proceedings.” Hallmark Cards, Inc., 2010 WL 4853848, at *1. Indeed, “[u]se of
the phrase ‘public hearing’ seems to be an awkward way to describe judicial
proceedings, particularly in light of the statute’s other provisions indicating that the
activity to be protected is involvement in public debate, the legislative process, and
other aspects related to the representative branches of government.” Id.
Furthermore, by the plain meaning of the statutory language, Missouri’s antiSLAPP statute excludes judicial proceedings. As defined, “quasi-judicial” refers to,
relates to, or involves “an executive or administrative official’s adjudicative acts.”

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Black’s Law Dictionary (10th ed. 2014); see also State ex rel. McNary v. Hais, 670
S.W.2d 494, 496 (Mo. banc 1984) (“Quasi-judicial is ‘[a] term applied to the action
. . . of public administrative officers or bodies, who are required to investigate facts,
or ascertain the existence of facts, hold hearings, and draw conclusions from them,
as a basis for their official action, and to exercise discretion of a judicial nature.”)
(quoting Black’s Law Dictionary 1121 (5th ed. 1979)). The term “public hearing,”
as used in Missouri statutes, consistently refers to legislative, executive or
administrative proceedings, rather than judicial proceedings. See Pl.’s Ex. A – Mo.
Statutory References to “Public Hearing” [Doc. #22-1] (collecting state statutes);
cf. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88–92 (1991) (referring to feeshifting provisions in other statutes to interpret the phrase “a reasonable attorney’s
fee” in 42 U.S.C. § 1988). As such, Missouri’s anti-SLAPP statute does not apply to
judicial proceedings.
The Court agrees with plaintiff that the SNAP defendants’ reliance on
California’s anti-SLAPP statute and the case law interpreting that statute is
misplaced.

California’s anti-SLAPP statute is much broader than Missouri’s,

explicitly including judicial proceedings and imposing a heightened substantive
standard for a plaintiff to defeat an anti-SLAPP motion. See Cal. Civ. Pro. Code §
425.16(e)(2) (stating that an “‘act in furtherance of a person’s right of petition or
free speech under the United States or California Constitution in connection with a
public issue’ includes . . . any written or oral statement or writing made in
connection with an issue under consideration or review by a legislative, executive,
or judicial body, or any other official proceeding authorized by law”); §
425.16(b)(1)–(2) (stating that in opposing a special motion to strike a plaintiff is

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required to “establish[] that there is a probability that the plaintiff will prevail on
the claim” through “the pleadings, and supporting and opposing affidavits”); see
also Hallmark Cards, Inc., 2010 WL 4853848, at *1 (“Defendants insist other states
would view the matter differently. The easy answer to this is: the Missouri statute
is at issue, not the laws of other states.”). Accordingly, the SNAP defendants are
not entitled to dismissal of the complaint on the basis of Missouri’s anti-SLAPP
statute.
B.

Sufficiency of the Pleadings

The SNAP defendants also contend that the complaint fails to a state a claim
against them upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The
purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of
the complaint. Fed. R. Civ. P. 12(b)(6). The factual allegations of a complaint are
assumed true and construed in favor of the plaintiff, “even if it strikes a savvy
judge that actual proof of those facts is improbable.”

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(stating that a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Scheuer, 416 U.S. at 236. A viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570; see id. at 563 (stating that the “no set of facts” language in Conley v.

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Gibson, 355 U.S. 41, 45–46 (1957), “has earned its retirement”); see also Ashcroft
v. Iqbal, 556 U.S. 662, 678–84 (2009) (holding that the pleading standard set forth
in Twombly applies to all civil actions).

“Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
1.

Conspiracy to Violate Civil Rights

In Count VII, plaintiff alleges that the SNAP defendants conspired with the
other defendants to violate plaintiff’s civil rights, in violation of 42 U.S.C. § 1985.
To show a civil rights conspiracy under § 1985(3), plaintiff must prove: “(1) the
defendants conspired, (2) with the intent to deprive [him], either directly or
indirectly, of equal protection of the laws, or equal privileges and immunities under
the laws, (3) an act in furtherance of the conspiracy, and (4) that [he] or [his]
property [was] injured, or [he was] deprived of exercising any right or privilege of a
citizen of the United States.” Barstad v. Murray Cnty., 420 F.3d 880, 887 (8th Cir.
2005).

Defendants contend that the complaint contains no allegation of an

“agreement” among the SNAP defendants or with any other defendant.
The first element of a civil rights conspiracy claim “requires evidence of
specific facts that show a ‘meeting of minds’ among conspirators.”

Id.

“[T]he

plaintiff must allege with particularity and specifically demonstrate with material
facts that the defendants reached an agreement.”

City of Omaha Employees

Betterment Ass’n v. City of Omaha, 883 F.2d 650, 652 (8th Cir. 1989). A plaintiff
can satisfy this burden “by pointing to at least some facts which would suggest that
[the alleged conspirators] reached an understanding to violate [his] rights.”
(internal quotations omitted).

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Id.

With respect to the alleged conspiracy between the SNAP defendants, the
police officer defendants, and the defendant parents, the complaint asserts that the
SNAP defendants engaged in a smear campaign against plaintiff, falsely accusing
him of molesting the minor child for the purpose of adversely influencing the jury
pool in any trial and to place pressure on the City of St. Louis and the police
defendants to maintain the prosecution against plaintiff despite evidence of his
innocence. Compl. at ¶¶ 1, 83–84 [Doc. #1]. The complaint also alleges that the
SNAP defendants deliberately coordinated their defamatory statements about
plaintiff to support and assist A.M. and N.M. in their conspiracy with police
defendants to deprive plaintiff of his civil rights, timing their public accusations to
coincide with critical events of plaintiff’s criminal case.

Id. at ¶¶ 81(g), (i), 85.

Moreover, the complaint provides specific details of coordinated public statements
made by each of the SNAP defendants as a part of their larger smear campaign.
Id. at ¶¶ 76, 81, 85.
Accepting the factual allegations in the complaint as true for purposes of the
instant motion, the Court finds that plaintiff has pointed to at least some facts
suggesting

that

defendants

had

a

meeting

understanding to violate plaintiff’s civil rights.

of

the

minds

or

reached

an

Defendants do not challenge the

sufficiency of the complaint with respect to the remaining elements of an alleged
civil rights conspiracy. Thus, the Court will deny the SNAP defendants’ motion to
dismiss Count VII for failure to state a claim.
2.

Intentional Infliction of Emotional Distress

In Count XIII, plaintiff alleges that the police defendants, A.M., N.M., and the
SNAP defendants intentionally inflicted emotional distress upon him in their

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conduct, including but not limited to arresting and prosecuting him because of
ethnic and religious animus, publicly accusing him of committing crimes without
reasonable belief that he had done so, and depriving him of his personal liberty and
right to practice his religion and religious vocation freely.

To state a claim for

intentional infliction of emotional distress under Missouri law, “a plaintiff must plead
extreme and outrageous conduct by a defendant who intentionally or recklessly
causes severe emotional distress that results in bodily harm.” Gibson v. Brewer,
952 S.W.2d 239, 249 (Mo. banc 1997).

The conduct “must be ‘intended only to

cause extreme emotional distress to the victim.’” Id. (quoting K.G. v. R.T.R., 918
S.W.2d 795, 799 (Mo. banc 1996)).
The SNAP defendants first argue that the complaint fails to state a claim
against them because the emotional distress plaintiff claims to have suffered
resulted primarily from the accusation against him and his arrest, incidents in which
the SNAP defendants were not involved. However, the complaint does not merely
assert that plaintiff suffered emotional distress because of the initial accusation and
his arrest.

Rather, the complaint alleges that the SNAP defendants’ continued

pressure on state actors and the minor’s parents to persist in plaintiff’s prosecution,
their ongoing campaign to inflame public opinion against plaintiff, and their efforts
to influence a prospective jury pool in a criminal or civil trial through adverse
publicity targeting plaintiff over the course of several years caused him to suffer
severe emotional distress, loss of sleep and appetite, and other harm. Compl. at
¶¶ 76–85.

These factual allegations sufficiently establish the SNAP defendants’

involvement in the alleged intentional infliction of emotional distress.

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Additionally, defendants assert that plaintiff failed to allege any conduct on
the part of the SNAP defendants that rises to the level of “extreme and
outrageous.” The conduct in a claim of intentional infliction of emotional distress
“must have been ‘so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.’” Gibson, 952 S.W.2d at 249 (quoting Warrem
v. Parrish, 436 S.W.2d 670, 673 (Mo. 1969)).

Defendants contend that to the

extent that plaintiff relies upon their alleged defamatory statements for his
intentional infliction of emotional distress claim, the claim should dismissed.

See

Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. banc 1996) (“A cause of action for
intentional infliction of emotional distress does not lie when the offending conduct
consists only of a defamation.”) (internal quotations omitted).
In Missouri, “[i]t is for the court to determine, in the first instance, whether
the defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery.”

Wilt v. Kansas City Area Trans. Auth., 629

S.W.2d 669, 671 (Mo. Ct. App. 1982). In making such a determination, the court is
to decide whether an “average member of the community” would term such
conduct “outrageous.”
(Am. Law Inst. 1965)).

Id. (quoting Restatement (Second) of Torts § 46 cmt. d
“It must be beyond mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities.”

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

235, 236 (Mo. Ct. App. 1989).
Plaintiff’s intentional infliction of emotional distress claim against the SNAP
defendants does not rely solely on acts of defamation and goes beyond mere
insults, annoyances or trivialities. The complaint alleges that the SNAP defendants

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engaged in a prolonged campaign to portray plaintiff as a child molester, even after
criminal charges against him were dismissed. See Cline v. Union Cnty., Iowa, 182
F. Supp. 2d 791, 799 (S.D. Iowa 2001) (finding summary judgment inappropriate
on a claim of intentional infliction of emotional distress based on remaining factual
questions pertaining to the time, place and publicity surrounding plaintiff’s alleged
false arrest and malicious prosecution); Hess v. Treece, 693 S.W.2d 792, 796 (Ark.
1985) (finding the facts established outrageous conduct for an intentional infliction
of emotional distress claim when the statements defendant directed against plaintiff
were the driving force behind repeated police investigations of plaintiff and
continued over a period of two years or more). The Court finds that these factual
allegations are sufficient to state a plausible claim for the intentional infliction of
emotional distress against the SNAP defendants.

It would be premature at this

stage in the proceedings to dismiss this claim on the basis of defendants’
threadbare contentions in the instant motion.
3.

Defamation

Defendants argue that the defamation claim should be dismissed because it
fails to set forth the alleged defamatory statements with sufficient specificity.

In

particular, defendants take issue with the qualification in the complaint that the
alleged defamatory statements defendants made “include, but are not limited to,
the following examples.” Compl. ¶ 81.
To prevail on a defamation claim in Missouri, a plaintiff must establish that
the defendant made a defamatory statement that identified the plaintiff, was false,
was published with the requisite degree of fault, and damaged the plaintiff’s
reputation. Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 579, 598–99 (Mo. banc

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2013).

“It is necessary to state the specific words which are argued to be

defamatory in order to state a cause of action.”

Tri-Cnty. Retreading, Inc. v.

Bandag, Inc., 851 S.W.2d 780, 785 (Mo. Ct. App. 1993); see also Asay v. Hallmark
Cards, Inc., 594 F.2d 692, 699 (8th Cir. 1979) (stating that federal courts favor
specific pleading of defamation claims because “knowledge of the exact language
used is necessary to form responsive pleadings”).
In the complaint, plaintiff alleges ten specific statements the SNAP
defendants made in press releases, television interviews, and newspaper articles
falsely accusing him of sexually abusing a child, causing him severe and actual
reputational harm.

Compl. ¶¶ 81(a)–(j), 169–77.

The additional allegation that

defendants’ defamatory statements were not limited to these ten specific
allegations does not cause plaintiff’s specific allegations to become too indefinite to
state a claim for defamation.

Defendants have cited no authority for this

proposition and have not challenged the sufficiency of the specific defamatory
statements alleged. As such, accepting the specific factual allegations as true, the
Court finds that plaintiff has sufficiently stated a claim against the SNAP defendants
for defamation.
*

*

*

*

*

For the reasons set forth above,
IT IS HEREBY ORDERED that the motion of defendants SNAP, David
Clohessy and Barbara Dorris to dismiss [Doc. #9] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 28th day of December, 2015.

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