Lamb v. Rizzo

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 9 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

THOMAS P. LAMB,

Plaintiff-Appellant,

v. No. 03-3179

TONY RIZZO,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 02-CV-1282-JTM)
(242 F. Supp. 2d 1032)

Submitted on the briefs:

Thomas P. Lamb, pro se.

Michael J. Abrams of Lathrop & Gage L.C., Kansas City, Missouri, for
Defendant-Appellee.

Before LUCERO , McKAY , and TYMKOVICH , Circuit Judges.

McKAY , Circuit Judge.

The state of Kansas incarcerated Thomas P. Lamb, pro se plaintiff in this

libel action, over thirty years ago. He is serving three consecutive life sentences
for two counts of first degree kidnapping and one count of first degree murder. In

July 2001, defendant, newspaper reporter Tony Rizzo, wrote two articles about

Mr. Lamb’s convictions and upcoming parole hearing. When Mr. Lamb’s request

for parole was subsequently denied, he sued Mr. Rizzo in Kansas state court

asserting, among other things, that Mr. Rizzo’s articles contained “lies and false

information” which caused Mr. Lamb to be denied parole. R. Vol. I, Doc. 1, Ex.

A at 1.

Mr. Rizzo removed the case to federal district court based upon diversity of

citizenship. He also filed a motion to dismiss for failure to state a claim,

attaching to it numerous newspaper articles chronicling Mr. Lamb’s criminal

history. In the motion, Mr. Rizzo contended that Mr. Lamb was libel-proof as a

matter of law; in other words, his public reputation at the time the articles were

published was so diminished with respect to a specific subject (his kidnapping

and murder convictions), that he could not be further injured by allegedly false

statements on that subject. Because damage to one’s reputation is the heart of a

defamation action in Kansas, argued Mr. Rizzo, Mr. Lamb’s claims must be

dismissed.

Mr. Lamb countered that, by the time the articles were published, his

reputation had been rehabilitated and that he was no longer libel-proof. To

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substantiate this contention, Mr. Lamb attached many exhibits to his response,

including letters from various individuals who had recommended he be paroled.

On January 31, 2003, the district court dismissed Mr. Lamb’s complaint for

failure to state a claim upon which relief could be granted. While acknowledging

that Mr. Rizzo did not cite any Kansas case law adopting the libel-proof plaintiff

doctrine, the district court predicted that the Kansas Supreme Court, if presented

with the issue, would adopt the doctrine. Lamb v. Rizzo, 242 F. Supp. 2d 1032,

1037 (D. Kan. 2003) . It also predicted that, based on the factual narrative of

Mr. Lamb’s crimes in the Kansas Supreme Court’s decision affirming his

convictions, that court would hold the doctrine applicable to Mr. Lamb and

conclude that Mr. Rizzo’s articles were not actionable as a matter of law. Id. at

1037-38. After the district court entered judgment, Mr. Lamb filed a Fed. R. Civ.

P. 59(e) motion to alter or amend the judgment, which the district court denied.

This appeal followed. 1

Our jurisdiction arises under 28 U.S.C. § 1291. Because we agree with the

district court’s prediction that the Kansas Supreme Court would adopt the libel-

proof plaintiff doctrine and hold that it is a bar to Mr. Lamb’s claims, and

1
We liberally construe Mr. Lamb’s pro se pleadings. Haines v. Kerner , 404
U.S. 519, 520-21 (1972) (per curiam).

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because the district court did not abuse its discretion in denying Mr. Lamb’s

motion to alter or amend the judgment, we affirm. 2

I. Background

Although the district court included a detailed factual summary, our

disposition requires only an abbreviated description of the facts pertinent to this

appeal. The following facts are largely undisputed.

In December, 1969, Lamb kidnapped and murdered Karen Sue
Kemmerly, who was then 24 years old. Kemmerly’s nude body was
found . . . on December 7, 1969. In January, 1970, he kidnapped
Patricia Ann Childs, who was then 18 years old. Lamb demanded
ransom from Childs’ parents, which they agreed to pay. Law
enforcement officers staked out the scene of the ransom payment,
and were able to apprehend him after a high speed car chase.

Lamb , 242 F. Supp. 2d at 1033. Several days later, while being held without

bond,

[Mr. Lamb] obtained a 38 caliber pistol. He and [a jail] trustee then
took three dispatchers and a jailer captive and escaped from the jail
after locking the four sheriff’s officers in a jail cell. [Mr. Lamb] and
[the trustee] then proceeded across the street from the courthouse to a
small cafe where they took a patron, Loyd Midyett, hostage. The pair
then commandeered Midyett’s car . . . with Midyett in their custody
. . . . [and] they were eventually apprehended at a roadblock . . . .

2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

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Id. at 1037 (quoting State v. Lamb , 497 P.2d 275, 282 (Kan. 1972), overruled on

other grounds by State v. Jacques, 587 P.2d 861 (Kan. 1978)).

Mr. Lamb has now been imprisoned for more than a quarter of a century.

But “even that isolation has not prevented him from periodically attempting his

violent reentry into society at large.” Id. at 1038. In 1979, Mr. Lamb escaped

from the Kansas State Penitentiary, “stole a car and led officers on another high

speed chase.” Id. And, in 1987, he escaped “from the Larned State Hospital,

during which he threatened a farmer at knife point, stole his car, and led officers

on yet another car chase.” Id. ; but see Aplt. Br. at 7 (characterizing his 1987

escape as “walk[ing] away from minimum security”).

As set forth above, Mr. Lamb was denied parole in 2001 and shortly

thereafter sued Mr. Rizzo. Mr. Lamb asserted that Mr. Rizzo’s articles were

defamatory (and that publishing them constituted a negligent tort, R. Vol. I, Doc.

1, Ex. A at 2, 4) because he inaccurately reported that Mr. Lamb: (1) was

convicted of raping both Ms. Kemmerly and Ms. Childs; (2) was arrested “after a

chase and shootout that left one police officer seriously injured;” (3) “fooled

prison officials in 1969, when he was serving time for burglary” into

recommending him for parole; and (4) pursued his victims by “prowl[ing] area

shopping centers, dressed as a woman.” Id. at 2-3. Mr. Lamb argued that these

statements were defamatory because, he alleged,

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 (1) he was never charged with rape as to either of his victims and
that his second victim told several different stories; (2) while an
officer may have been shot [as] officers were pursuing him, the shot
came from another officer and was in any event not life threatening;
(3) there is no indication that he fooled anyone into recommending
him for parole; and (4) while Lamb did abduct Ms[.] Childes [sic]
from a shopping center, [he] was fully dressed as a male at that time.

Lamb , 242 F. Supp. 2d at 1033 (citations and quotations omitted).

II. Discussion

A. Dismissal of Plaintiff’s Complaint Based Upon the Libel-Proof
Plaintiff Doctrine

In concluding that the libel-proof plaintiff doctrine barred Mr. Lamb’s

claims, the district court resolved Mr. Rizzo’s motion to dismiss under Fed. R.

Civ. P. 12(b)(6). Notwithstanding, the court clearly relied upon and incorporated

into its order granting the motion material derived from documents outside the

four corners of Mr. Lamb’s complaint. In so doing, “the court converted the

motion to dismiss into a motion for summary judgment.” Nichols v. United

States , 796 F.2d 361, 364 (10th Cir. 1986). We must therefore “review the record

under summary judgment standards,” and affirm the district court’s ruling “if it is

clear from the record on appeal that there are no genuine issues of fact to be tried

and the movant is entitled to judgment as a matter of law.” Id. ; Fed. R. Civ. P.

56. 3

3
The district court did not give notice of its intent to convert Mr. Rizzo’s
(continued...)

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 On appeal, Mr. Lamb argues that the district court “knew that Kansas did

not have a libel-proof plaintiff doctrine” and knowingly violated his rights by

applying “that federal doctrine to his case.” Aplt. Br. at 6. In the alternative, he

apparently argues that even if the libel-proof plaintiff doctrine is applicable, it

cannot be used to bar his claims thirty-one years after “the only crime that could

have labeled [him] . . . libel-proof.” Id. at 7. Mr. Lamb’s arguments, however,

are misplaced.

As a preliminary matter, although Mr. Lamb concedes that the substantive

law of the forum state applies, see Erie R.R. v. Tompkins , 304 U.S. 64, 78 (1938),

he fails to recognize that “[i]n the absence of authoritative precedent from the

Kansas Supreme Court . . . , our job is to predict how that court would rule,”

Carl v. City of Overland Park , 65 F.3d 866, 872 (10th Cir. 1995). Additionally,

and contrary to Mr. Lamb’s contention, the libel-proof plaintiff doctrine is not an

exclusively federal doctrine. It is a judicially created doctrine that has been

applied in a number of jurisdictions for more than two decades. 4
It recognizes

3
(...continued)
Rule 12(b)(6) motion, but Mr. Lamb does not and cannot claim that the absence
of notice prejudiced him. See Nichols , 796 F.2d at 364. Mr. Lamb not only failed
to object to the exhibits attached to Mr. Rizzo’s motion to dismiss, but Mr. Lamb
also filed his own exhibits in response. See id.
4
Guccione v. Hustler Magazine , Inc. , 800 F.2d 298, 303-04 (2d Cir. 1986);
Cardillo v. Doubleday & Co. , 518 F.2d 638, 639-40 (2d Cir. 1975); Cerasani v.
Sony Corp. , 991 F. Supp. 343, 346, 352-55 (S.D.N.Y. 1998); Wynberg v. Nat’l
(continued...)

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that damage to one’s reputation is the core of a defamation action, and essentially

holds

that when a plaintiff’s reputation is so diminished at the time of
publication of the allegedly defamatory material that only nominal
damages at most could be awarded because the person’s reputation
was not capable of sustaining further harm, the plaintiff is deemed to
be libel-proof as a matter of law and is not permitted to burden a
defendant with a trial.

Eliot J. Katz, Annotation, Defamation: Who is “Libel-Proof,” 50 A.L.R.4th 1257

(2004); accord 1 Robert D. Sack, Sack on Defamation § 2.4.18 (3d ed. 2004); see

generally Note, The Libel-Proof Plaintiff Doctrine , 98 Harv. L. Rev. 1909 (1985).

Stated another way:

When . . . an individual engages in conspicuously anti-social or even
criminal behavior, which is widely reported to the public, his
reputation diminishes proportionately. Depending upon the nature of
the conduct, the number of offenses, and the degree and range of
publicity received, there comes a time when the individual’s
reputation for specific conduct, or his general reputation for honesty
and fair dealing is sufficiently low in the public’s estimation that he
can recover only nominal damages for subsequent defamatory
statements.

4
(...continued)
Enquirer, Inc. , 564 F. Supp. 924, 927-28 (C.D. Cal. 1982); Ray v. United States
Dep’t of Justice, 508 F. Supp. 724, 726 (E.D. Mo.), aff’d, 658 F.2d 608 (8th Cir.
1981); Logan v. Dist. of Columbia , 447 F. Supp. 1328, 1332, 1336 (D. D.C.
1978); Ray v. Time, Inc. , 452 F. Supp. 618, 622 (W.D. Tenn. 1976), aff’d , 582
F.2d 1280 (6th Cir. 1978) ; Cofield v. Advertiser Co., 486 So. 2d 434, 435 (Ala.
1986); Jackson v. Longcope , 476 N.E.2d 617, 618-21 (Mass. 1985); Davis v.
Tennessean , 83 S.W.3d 125, 128-31 (Tenn. Ct. App. 2001); Kevorkian v. Am.
Med. Ass’n , 602 N.W.2d 233, 239 (Mich. App. 1999); Finklea v. Jacksonville
Daily Progress , 742 S.W.2d 512, 515-18 (Tex. Ct. App. 1987).

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 First Amendment considerations of free press and speech,
promoting society’s interest in uninhibited, robust, and wide-open
discussion, must prevail over an individual’s interest in his
reputation in such cases. An individual who engages in certain
anti-social or criminal behavior and suffers a diminished reputation
may be “libel proof” as a matter of law, as it relates to that specific
behavior.

Wynberg , 564 F. Supp. at 928 .

The libel-proof plaintiff doctrine was first enunciated in Cardillo v.

Doubleday & Co. , where a prisoner, Cardillo, brought a libel suit asserting that

the authors and publishers of My Life in the Mafia incorrectly reported that he had

participated in certain specific crimes. 518 F.2d at 639-40. After recounting

Cardillo’s “record and relationships,” the Second Circuit concluded that it could

not “envisage any jury awarding, or any court sustaining, an award under any

circumstances for more than a few cents’ damages,” id. at 640, and held Cardillo

“libel-proof, i.e. , so unlikely by virtue of his life as a habitual criminal to be able

to recover anything other than nominal damages.” Id. at 639.

Having set forth a description of the libel-proof plaintiff doctrine and

where it first took hold, we now turn to the district court’s prediction that the

Kansas Supreme Court would, on these facts, adopt the doctrine and hold that it is

a bar to Mr. Lamb’s claims.

[A] federal court’s prediction of state law looks to (1) lower state
court decisions and state Supreme Court dicta; . . . (3) the general
rule on the issue; (4) the rule in other states looked to by [Kansas]
courts when they formulate their own substantive law, and (5) other

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 available legal sources, such as treatises and law review
commentaries.

DP-Tek, Inc. v. AT & T Global Info. Solutions Co. , 100 F.3d 828, 831 (10th Cir.

1996) (alterations in original) (quoting Menne v. Celotex Corp. , 861 F.2d 1453,

1464-65 n.15 (10th Cir. 1988)). 5
See also Carl , 65 F.3d at 872 (“Kansas Supreme

Court dicta, which represents that court’s own comment on the development of

Kansas law, is an appropriate source from which [a] prediction may be made.”).

Libel is governed by state law. In Kansas,

damage to one’s reputation is the essence and gravamen of an action
for defamation. Unless injury to reputation is shown, plaintiff has
not established a valid claim for defamation, by either libel or
slander . . . . It is reputation which is defamed, reputation which is
injured, reputation which is protected by the laws of libel and
slander.

Gobin v. Globe Pub. Co. , 649 P.2d 1239, 1243 (Kan. 1982); see also Monitor

Patriot Co. v. Roy , 401 U.S. 265, 275 (1971) (“[D]amage to reputation is, of

course, the essence of libel.”). The libel-proof plaintiff doctrine has not been

5
We decided Menne before the Supreme Court’s decision in Salve Regina
Coll. v. Russell , 499 U.S. 225 (1991), in which the Court held that an appellate
court shall not defer to the district court’s determination of state law. Id. at 231,
238-39. We therefore omit Menne’s second factor, that a “federal court’s
prediction of state law look[] to . . . the lower court ruling in the case,” 861 F.2d
at 1464-65 n.15. See Clark v. State Farm Mut. Auto. Ins. Co. , 319 F.3d 1234,
1240 (10th Cir. 2003) (observing that “this court affords no deference to a district
court’s interpretation of state law”); Commerce Bank, N.A. v. Chrysler Realty
Corp. , 244 F.3d 777, 780 (10th Cir. 2001) (“We review the district court’s
interpretation of Kansas state law de novo.”).

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adopted by the Kansas Supreme Court, but, in Ruebke v. Globe Communications

Corp. , the court recognized the doctrine’s existence. 738 P.2d 1246, 1249-50,

1252 (Kan. 1987). Although the court did not find the doctrine applicable given

the facts of that case, in recognizing the existence of the doctrine, the Kansas

court observed in dicta that the libel-proof plaintiff doctrine applied in cases

where “the plaintiff had already suffered from a lowered reputation in the

community because of the plaintiff’s prior convictions for the crime alleged in the

publication or for a similar crime.” Id. at 1249. In Ruebke , however, the

allegedly defamatory article was published before Mr. Ruebke was convicted of

the crimes he was accused of committing. Therefore, said the Kansas Supreme

Court, the alleged defamer could not rely on Mr. Ruebke’s subsequent criminal

convictions to render him libel proof. Id. at 1249-50. By contrast, the facts

surrounding Mr. Lamb’s case fit within the Kansas Supreme Court’s description

of when the doctrine might apply. Mr. Lamb, unlike Mr. Ruebke, was convicted

long before Mr. Rizzo’s allegedly defamatory articles were published. Thus,

Mr. Lamb had “already suffered from a lowered reputation in the community [due

to his] prior convictions for the crime alleged in the publication or for a similar

crime.” Id. at 1249.

Since the libel-proof plaintiff doctrine’s inception, it has been said that

“[t]he cases that most compellingly invite [the doctrine’s] application are those

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cases, like Cardillo , in which criminal convictions for behavior similar to that

alleged in the challenged communication are urged as a bar to the claim.”

Finklea, 742 S.W.2d at 515 (citing Wynberg , 564 F. Supp. 924; Logan , 447 F.

Supp. 1328; and Jackson , 476 N.E.2d 617). This is just such a case. The

communication Mr. Lamb challenged related specifically to his past criminal

conduct, and it matters not that thirty-one years had passed since what he

characterizes as “the only crime that could have labeled [him] libel-proof.” Aplt.

Br. at 7.

“This is not a case,” resolved the district court,

in which the substance of the plaintiff’s reputation-destroying actions
are in any doubt. Given the utter heinousness of the offenses which
led to the plaintiff’s three consecutive sentences of life
imprisonment, the uncontroverted nature of those offenses, and the
widespread notoriety attached to the convictions of the plaintiff as
well as his periodic escapes from custody, the plaintiff has not and
cannot present an actionable case of libel based upon the purported
misstatements contained in Rizzo’s articles.

Lamb, 242 F. Supp. 2d at 1038; see also State v. Lamb , 497 P.2d at 285

(acknowledging that Mr. Lamb’s crimes against Ms. Kemmerly and Ms. Childs

were “widely covered and reported by the news media”).

In considering whether the Kansas Supreme Court would adopt this

doctrine, we have looked to the required sources: Kansas Supreme Court dicta,

the general rule on the issue, treatises, and law review commentaries. DP-Tek,

Inc. , 100 F.3d at 831. We affirm the district court’s holding that the Kansas

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Supreme Court would adopt the libel-proof plaintiff doctrine. And, reviewing the

record under summary judgment standards, we also affirm the district court’s

determination that the Kansas Supreme Court would hold it applicable to

Mr. Lamb. This case presents us with one of those narrow “instances where . . .

allegedly libelous statement[s] cannot realistically cause impairment of reputation

. . . [and] the [plaintiff’s] claim[s] should be dismissed.” Guccione , 800 F.2d at

303; see also Buckley v. Littell , 539 F.2d 882, 889 (2d Cir. 1976) (warning that

the libel-proof plaintiff doctrine is “a limited, narrow [principle]”). It is clear

that there are no genuine issues of fact and that Mr. Rizzo is entitled to judgment

as a matter of law. We therefore affirm the district court’s determination and

conclude that the allegedly libelous articles written by Mr. Rizzo are not

actionable as a matter of law.

B. Denial of Plaintiff’s Post-Judgment Motion to Alter or Amend

Mr. Lamb also challenges the district court’s denial of his Fed. R. Civ. P.

59(e) motion to alter or amend the judgment, arguing that the court erred by

holding his negligence claim subsumed by his libel claim, and denying him his

“right to discovery,” Aplt. Br. at 10. Having reviewed the district court’s ruling

for an abuse of discretion and concluded that the court did not make “a clear error

of judgment or exceed[] the bounds of permissible choice in the circumstances,”

we leave the district court’s ruling undisturbed. Phelps v. Hamilton , 122 F.3d

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1309, 1324 (10th Cir. 1997). “A Rule 59(e) motion to alter or amend the

judgment should be granted only to correct manifest errors of law or to present

newly discovered evidence.” Id. Neither circumstance applies here.

The judgment of the district court and its order denying Mr. Lamb’s motion

to alter or amend are AFFIRMED.

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