Greer v. Wal-Mart Stores Inc et al

Filing 22

MEMORANDUM OPINION AND ORDER: Defendants' Motion for Summary Judgment [ECF # 17 ] is GRANTED. All of Plaintiff's claims and causes of action are DISMISSED with prejudice. (Ordered by Chief Judge Barbara M.G. Lynn on 12/19/2017) (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DEANDREA LAMONT GREER

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Plaintiff,
v.
WAL-MART STORES, INC. and
KENEDY MAINA,
Defendants.

Case No. 3:16-cv-3426-M

MEMORANDUM OPINION AND ORDER
Before the Court is a Motion for Summary Judgment [ECF #17], filed by Defendants
Wal-Mart Stores, Inc. and Kenedy Maina. For the reasons stated, the Motion is GRANTED.
Background
In this civil action, Plaintiff Deandrea Lamont Greer asserts claims against Defendants
arising out of Plaintiff’s August 2014 arrest on shoplifting charges. See Pl. Orig. Pet., Def. MSJ
App., Ex. 1. Defendant Wal-Mart Stores, Inc. owns and operates a Walmart Supercenter store in
Garland, Texas. Id. at 2, ¶10. Defendant Kenedy Maina has worked as a Loss Prevention
Associate at the Garland Supercenter store since December 2007. Id., ¶11; see also Maina Aff.,
Def. MSJ App., Ex. 2, ¶2. On May 30, 2014, Defendants informed police that Plaintiff, a former
Wal-Mart employee, shoplifted from the Garland Supercenter. Pl. Orig. Pet. at 3, ¶12. The police
arrested Plaintiff in August 2014 on shoplifting charges based on Defendants’ May 30, 2014
report. Id., ¶13. However, the Dallas County District Attorney’s Office dismissed the charges on
October 16, 2015. Id. at 4, ¶22.
Plaintiff denies that he shoplifted from the Garland Supercenter store, or that he even
went to the store on May 30, 2014. Id. at 3, ¶13. According to Plaintiff, Defendant Maina harbors
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ill will towards Plaintiff from the period when they both worked at the Garland Supercenter. Id.
at 3, ¶14. Plaintiff alleges that Defendant Maina falsely accused him of theft and made several
false reports to police and the District Attorney that Plaintiff had shoplifted from the Garland
Supercenter on May 30, 2014. Id., ¶¶15, 20. As a result of Defendants’ accusations, Plaintiff
claims he was arrested and placed in handcuffs in the presence of his four-year-old daughter, had
his car impounded, remained in jail for six days because he was unable to post bail, and was
forced to incur significant expense to fight the charges that were ultimately dismissed. Id., ¶¶ 1519, 21.
Plaintiff filed this civil action in the 162nd Judicial District Court for Dallas County,
Texas, on October 17, 2016, asserting claims against Defendants for malicious prosecution,
abuse of process, defamation, intentional infliction of emotional distress, and negligence.
Defendants timely removed the case to federal court on the basis of diversity. Defendants have
filed a motion for summary judgment as to all of Plaintiff’s claims and causes of action. Plaintiff,
who is proceeding pro se, did not file a written response to the summary judgment motion.1 The
Court therefore considers the motion without the benefit of a response.
Legal Standards
Summary judgment is warranted “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute as to a material fact is genuine, if the evidence is sufficient to permit a
reasonable factfinder to return a verdict for the nonmoving party. Johnson v. World Alliance Fin.
Corp., 830 F.3d 192, 195 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). A fact is material if its resolution could affect the outcome of the action. Weeks

The Court granted Plaintiff’s counsel’s unopposed motion for withdrawal on August 25, 2017. See Order [ECF
#13]. Plaintiff has been acting pro se since that date.

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Marine, Inc. v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). The substantive law
determines which facts are material. See Anderson, 477 U.S. at 247.
The summary judgment movant bears the initial burden of showing the absence of
evidence to support the nonmovant’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the movant satisfies this initial burden, the burden shifts to the nonmovant to show
summary judgment is not proper. Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir.
2006). To carry this burden, the nonmovant must designate specific facts in the record to show
the existence of a genuine issue of material fact. Id. All evidence and inferences must be viewed
in the light most favorable to the nonmovant. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536,
540 (5th Cir. 2005).
Analysis
Plaintiff did not file a response to Defendants’ Motion for Summary Judgment. Although
Plaintiff’s failure to respond does not permit the Court to enter a “default” summary judgment,
the Court is permitted to accept Defendants’ evidence as undisputed. Eversley v. MBank Dallas,
843 F.2d 172, 174 (5th Cir. 1988); see also Bell v. State Farm Lloyds, 2014 WL 1516254, at *3
(N.D. Tex. Apr. 18, 2014) (Lynn, J.). Plaintiff’s failure to respond means that where Defendants
have pointed to the absence of evidence to support elements of Plaintiff’s claim, Plaintiff has not
designated specific facts to prove the existence of a genuine issue of material fact. “A summary
judgment nonmovant who does not respond to the motion is relegated to [his] unsworn
pleadings, which do not constitute summary judgment evidence.” Bookman v. Shubzda, 945 F.
Supp. 999, 1002 (N.D. Tex.1996) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160,
165 (5th Cir. 1991)); see also Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir. 1991) (“Unsworn
pleadings, memoranda, or the like are not, of course, competent summary judgment evidence.”).

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As Federal Rules of Civil Procedure 56(e)(2) and (3) provide, “If a party fails . . . to properly
address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the
fact undisputed for purposes of the motion [and] grant summary judgment if the motion and
supporting materials—including the facts considered undisputed—show that the movant is
entitled to it[.]” Fed. R. Civ. P. 56(e)(2), (3).
Statute of Limitations
Defendants move for summary judgment on Plaintiff’s claims for malicious prosecution
and defamation on limitations grounds. Actions for malicious prosecution and defamation are
subject to a one-year statute of limitations. Tex. Civ. Prac. Rem. Code Ann. § 16.002(a) (West
2017) (“A person must bring suit for malicious prosecution, libel, [or] slander . . . not later than
one year after the day the cause of action accrues.”).
Malicious Prosecution
A malicious prosecution claim accrues on the date the prosecution ends. Mead v. Prop.
Owners Ass’n of Terilingua Ranch, Inc., 410 S.W.3d 434, 438 (Tex. App.–El Paso 2013, no
pet.). The prosecution ends when the formal criminal proceedings are terminated. Leal v.
American Nat’l Ins. Co., 928 S.W.2d 592, 596–97 (Tex. App.–Corpus Christi 1996, writ denied).
In this case, Defendants have submitted uncontroverted summary judgment evidence showing
that a Dallas County Criminal Court Judge granted the District Attorney’s motion to dismiss the
criminal charges against Plaintiff on October 16, 2015. Def. MSJ App., Ex. 4. Plaintiff filed this
lawsuit asserting a claim for malicious prosecution on October 17, 2016—one day after the
expiration of the statute of limitations. Defendants are thus entitled to summary judgment on
Plaintiff’s malicious prosecution claim because it is barred by limitations. Torres v. GSC Enters.,
Inc., 242 S.W.3d 553, 561-62 (Tex. App. – El Paso 2007, no pet.) (affirming summary judgment

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on limitations grounds where cause of action accrued when jury returned a not-guilty verdict on
July 9, 2003, and plaintiff failed to file his malicious prosecution claim on or before July 9,
2004).
Defamation
A defamation claim generally accrues on the date the allegedly defamatory statement is
published or spoken. Ross v. Arkwright Mutual Ins. Co., 892 S.W.2d 119, 131 (Tex. App.—
Houston [14th Dist.] 1994, no writ). Here, Plaintiff contends that Defendants falsely reported to
the police on May 30, 2014, that Plaintiff was shoplifting from the Garland Supercenter. See Pl.
Orig. Pet. at 3, ¶12. Yet, the undisputed evidence establishes that Plaintiff waited more than two
years to file this lawsuit asserting a claim for defamation. Defendants are therefore also entitled
to summary judgment on Plaintiff’s defamation claim on limitations grounds.
Plaintiff’s failure to raise a genuine fact issue that his abuse of malicious prosecution and
defamation claims are not barred by limitations pretermits consideration of Defendants’ other
summary judgment arguments as to these claims.
No Evidence
Defendants also move for summary judgment on the ground that Plaintiff has no
evidence of various essential elements of his claims for abuse of process, intentional infliction of
emotional distress, and negligence. “Rule 56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a party’s opposition to summary judgment,”
and “[a] failure on the part of the nonmoving party to offer proof concerning an essential element
of its case necessarily renders all other facts immaterial and mandates a finding that no genuine
issue of fact exists.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006)

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(internal quotation marks omitted); Tranman, Inc. v. Griffin, 2013 WL 944502, at *3–4 (N.D.
Tex. Mar. 12, 2013) (Lynn, J.).
Abuse of Process
A claim for abuse of process requires: (1) an illegal, improper, or perverted use of the
process, neither warranted nor authorized by the process, (2) an ulterior motive or purpose in
exercising such use, and (3) damages as a result of the illegal act. See Preston Gate, LP v.
Bukaty, 248 S.W.3d 892, 897 (Tex. App. –Dallas 2008, no. pet.). “The ‘critical aspect’ of an
abuse of process claim is the improper use of process after it has been issued.” Martinez v.
English, 267 S.W.3d 521, 528 (Tex. App. –Austin 2008, pet. denied) (original emphasis)
(quoting Preston Gate, 248 S.W.3d at 897). An ulterior motive is not enough for an abuse of
process claim. Davis v. West, 433 S.W.3d 101, 110 (Tex. App.–Houston [1st Dist.] 2014, pet.
denied). Rather, “[t]he process must be used to ‘compel[ ] a party to do a collateral thing which
he would not be compelled to do’ otherwise.” Id. at 111 (quoting Detenbeck v. Koester, 886
S.W.2d 477, 480 (Tex. App.–Houston [1st Dist.] 1994, writ dism’d)).
Defendants argue there is no evidence they used the process at all. Indeed, the only
evidence in the record regarding the use of the process is Defendant Maina’s affidavit, which
states in pertinent part:
After reporting [the shoplifting] incident to the Police, I had no
involvement in determining whether the authorities would charge
Mr. Greer with a crime or whether the district attorney’s office
would otherwise pursue the matter. I did not work for the Police or
district attorney’s office and had no responsibility or involvement
in determining whether or how to pursue formal charges against
Mr. Greer.
Def. MSJ App., Ex. 2 at 3, ¶10. Plaintiff did not respond to Defendants’ arguments or point to
any evidence in the record to establish a genuine fact issue as to whether either Defendant made

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improper use of the process after it issued. The uncontroverted summary judgment thus
establishes that Defendants did not abuse the process after it was issued; they merely reported the
May 30, 2014, shoplifting activity and Defendant’s alleged involvement in that activity to law
enforcement. The Court concludes that Defendants are entitled to summary judgment on
Plaintiff’s claims for abuse of process. See Young v. Parent, 2017 WL 1173895, at * (Tex. App.–
Houston [1st Dist.] Mar. 30, 2017, no pet.) (affirming summary judgment in favor of the
defendant where the evidence showed the defendant made a false statement to law enforcement,
with an ulterior motive, but there was no evidence the defendant was involved in the prosecution
once it was initiated).
Intentional Infliction of Emotional Distress
To prevail on his claim for intentional infliction of emotional distress, Plaintiff must
prove that (1) Defendants acted intentionally or recklessly; (2) Defendants’ conduct was extreme
and outrageous; (3) Defendants’ actions caused Plaintiff emotional distress; and (4) the
emotional distress suffered by Plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621
(Tex. 1993). Under Texas law, extreme and outrageous conduct is conduct that is “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.” Id. (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)); see also Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d
239, 243 (5th Cir. 1993). To determine whether a defendant’s conduct is extreme and
outrageous, the court considers the context, including the relationship between the parties and the
defendant’s motive. See, e.g., Tiller v. McLure, 121 S.W.3d 709, 713-14 (Tex. 2003); Tex. Farm
Bureau Mut. Ins. Cos. V. Sears, 84 S.W.3d 604, 612 (Tex. 2002).

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Here, the uncontroverted summary judgment evidence establishes that Defendants
identified and reported Plaintiff to the police after Defendant Maina personally observed a
shoplifting incident on May 30, 2014, and obtained information from another Wal-Mart
employee identifying the suspected shoplifter as Plaintiff, who Maina has sworn he did not
know. Maina Aff., ¶¶3-4, 7. After Defendants reported Plaintiff to the police, they had no
continued involvement in the matter. Id. at 3, ¶10. Defendants had no role in determining
whether the authorities would charge Plaintiff with a crime. Id. Plaintiff has come forward with
no evidence of a bad motive on the part of Defendants or that any aspect of the parties’
relationship affected Defendants’ decision to report Plaintiff’s name to the authorities as a
suspected shoplifter, based on the identification by another Wal-Mart employee. The summary
judgment record thus does not raise a genuine fact issue as to whether Defendants’ conduct rose
to the level of extreme and outrageous conduct, as required to support a claim. See Morris v.
Dillard Dept. Stores, Inc., 277 F.3d 743, 757 (5th Cir. 2001) (upholding grant of summary
judgment in favor of merchant under Louisiana law which, like Texas law, sets a very high
threshold on conduct sufficient to sustain an emotional distress claim, where the plaintiff, a
customer, was arrested for shoplifting based on a store employee’s report that the customer
concealed merchandise under her jacket and on a security guard’s observations of the customer).
Accordingly, the Court finds that summary judgment is appropriate in favor of Defendants on
Plaintiff’s intentional infliction of emotional distress claim.
Negligence
Finally, the essential elements of Plaintiff’s negligence claim are: (1) a legal duty owed
by one person to another; (2) a breach of that duty; and (3) damages proximately caused by the
breach. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). Under Texas

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law, a person has a duty to exercise reasonable care to avoid foreseeable injury to others. El
Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). Foreseeability for purposes of
establishing a legal duty in a negligence case means that the actor, as a person of ordinary
intelligence, should have anticipated the dangers his negligence created. Alcoa, Inc. v. Behringer,
235 S.W.3d 456, 460 (Tex. App.—Dallas 2007, pet. denied). To establish a breach of duty, a
plaintiff must show that a defendant either did something an ordinarily prudent person exercising
ordinary care would not have done under the circumstances, or that the defendant failed to do
that which an ordinarily prudent person would have done in the exercise of ordinary care.
Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.—Dallas 2004, pet. denied).
Plaintiff cannot prevail on his negligence claim because there is no evidence that
Defendants breached a duty of care owed to Plaintiff when they reported to the police on May
30, 2014, that they suspected Plaintiff of shoplifting. The only evidence in the record establishes
that Defendant Maina reported Plaintiff to the police after Maina personally observed a suspect
conceal merchandise in his pants and leave the store without paying for the merchandise. Maina
Aff., ¶¶3-5. Another store employee told Maina he recognized Plaintiff as a former Wal-Mart
employee and told Maina Plaintiff’s name. Id., ¶7. Maina acted as an ordinarily prudent person,
exercising ordinary care under the same circumstances, would act. Plaintiff has not pointed to
any evidence that raises a fact question that Defendant failed to do anything that an ordinarily
prudent person would have done in the exercise of ordinary care under the same circumstances.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s negligence claim.
Plaintiff’s failure to respond to Defendants’ summary judgment motion and identify
competent evidence sufficient to raise a genuine fact issue as to an essential element on each of

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his claims for abuse of process, intentional infliction of emotional distress, and negligence
pretermits consideration of Defendants’ other arguments as to these claims.
Conclusion
Defendants’ Motion for Summary Judgment [ECF #17] is GRANTED. All of Plaintiff’s
claims and causes of action are DISMISSED with prejudice.
SO ORDERED.
Dated: December 19, 2017.
______________________________
BARBARA M.G. LYNN
CHIEF JUDGE

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