Peterson v. Grisham

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH February 1, 2010
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

WILLIAM N. PETERSON; GARY
ROGERS; MELVIN R. HETT,

Plaintiffs-Appellants,

v. No. 08-7100

JOHN GRISHAM; DOUBLEDAY DELL
PUBLISHING GROUP; RANDOM
HOUSE, INC.; ROBERT MAYER;
BROADWAY BOOKS; DENNIS FRITZ;
SEVEN LOCKS PRESS, INC.; BARRY
SCHECK,

Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:07-CV-00317-RAW)

Gary L. Richardson (Denise P. James with him on the briefs), The Richardson Law Firm,
P.C., Tulsa, Oklahoma, for the Plaintiffs-Appellants.

Robert D. Nelon, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City,
Oklahoma, and Cheryl A. Pilate, Morgan Pilate, LLC, Olathe, Kansas (Jon Epstein, Hall,
Estill, Hardwick, Gable, Golden & Nelson, P.C., Oklahoma City, Oklahoma, with them
on the briefs), for the Defendants-Appellees.
Before KELLY, McKAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

In 1988, Ronald Williamson and Dennis Fritz were wrongly convicted of the rape

and murder of Debra Sue Carter. Both men were later exonerated after spending over a

decade in jail. Their painful story caught the attention of renowned legal-fiction author

John Grisham, who wrote a book about Williamson appropriately titled The Innocent

Man. Fritz also wrote a book, Journey Toward Justice, detailing the horror of his years of

unjust confinement.

Each of the plaintiffs in this case—Oklahoma District Attorney William Peterson;

former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist

Melvin Hett—played a role in the investigation or prosecution and conviction of

Williamson and Fritz. Neither The Innocent Man nor Journey Toward Justice paints the

plaintiffs in a positive light. Following the release of these books, plaintiffs filed suit in

Oklahoma district court seeking relief for defamation, false light invasion of privacy,

intentional infliction of emotional distress, and civil conspiracy. They named Grisham,

Fritz, anti-death penalty advocate Barry Scheck, and author Robert Mayer—along with

their respective publishers—as defendants.1 The district court dismissed the suit for

1
Plaintiffs also named James Riordan as a defendant, but Riordan was dismissed
as a defendant by stipulation on January 23, 2008.

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failure to state a claim upon which relief can be granted. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

I

On the morning of December 8, 1982, Carter was found dead in her garage

apartment in the small town of Ada, Oklahoma. She had been raped and suffocated by

her assailant. Four years later, Rogers and his fellow officers arrested Williamson and

Fritz for Carter’s murder. Peterson prosecuted the case.

The evidence against Williamson and Fritz consisted of hair samples,

Williamson’s statement to police about a dream in which he had committed the murder,

and the testimony of jailhouse informants. Williamson v. State, 812 P.2d 384, 391-93

(Okla. Crim. App. 1991). Hett testified that hairs recovered from the crime scene

belonged to Williamson and Fritz. Id. at 391. Based on this evidence, the jury convicted

Williamson and Fritz of rape and murder. Williamson was sentenced to death, and Fritz

received life in prison. Id. at 390, 391 n.1.

Following a grant of habeas relief by the Eastern District of Oklahoma, DNA

testing was ordered in 1999. That testing revealed that hair and semen samples taken

from the crime scene could not have come from Williamson and Fritz. Both men had

been wrongfully convicted. Another man was eventually found guilty of Carter’s

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murder. Gore v. State, 119 P.3d 1268 (Okla. Crim. App. 2005).2 Williamson and Fritz’s

exonerations spawned two different books, as well as a chapter in a third and an

afterword in a fourth.

Grisham published The Innocent Man in 2006. It tells Williamson’s life story and

explores the circumstances leading to his wrongful conviction, imprisonment, and

subsequent exoneration. Grisham depicts Peterson, Rogers, and Hett as particularly

responsible for the plight of Williamson and Fritz. He also faults what he describes as a

broken criminal justice system that condones “bad police work, junk science, faulty

eyewitness identifications, bad defense lawyers, lazy prosecutors, [and] arrogant

prosecutors.”

In Journey Toward Justice, Fritz speaks in equally harsh tones about the public

officials who put him behind bars. As the title suggests, the book describes Fritz’s

agonizing trail from wrongful imprisonment to exoneration. Fritz recounts in vivid detail

his fears and frustrations as a wrongfully accused murder suspect and convict, and his

eventual elation upon release.

Barry Scheck, Fritz’s former attorney and a prominent anti-death penalty

advocate, wrote the foreword to Journey Toward Justice. In that foreword, Scheck

commends Fritz for having the courage to write his personal story, and praises Fritz for

his recent work in the anti-death penalty movement. Both Fritz and Scheck were

2
An appellate court reversed the conviction after finding a due process error. Id.
at 1272-78.

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interviewed by Grisham for The Innocent Man. Scheck ultimately devoted a chapter of

his 2003 book, Actual Innocence, to the wrongful convictions of Williamson and Fritz.

Lastly, Robert Mayer’s book, The Dreams of Ada, explores the 1985 convictions

of Tommy Ward and Karl Fontenot for the death of Denice Haraway. The Haraway case

shared many parallels with the Carter case, including minimal physical evidence, the use

of “dream” confessions, and reliance on testimony by jailhouse informants. That case

also involved a similar cast of characters: Peterson was the prosecutor and Rogers was

the investigator. Grisham used The Dreams of Ada—and found it to be particularly

helpful—in his research for The Innocent Man. Shortly after Grisham’s book was

published, Broadway Books reissued The Dreams of Ada with a new afterword written

by Mayer.3

With the exception of Actual Innocence, all these books were released (or, in the

case of The Dreams of Ada, re-released) in October 2006. One year later, Peterson and

Rogers filed suit alleging defamation, false light invasion of privacy, intentional infliction

of emotional distress, and civil conspiracy. They subsequently amended their complaint

to add Hett as a plaintiff. 4 After defendants filed motions to dismiss, the district court

3
Because The Dreams of Ada was originally published in 1987, the district court
correctly dismissed plaintiffs’ claims regarding Mayer’s statements in that book as time-
barred. See Okla. Stat. tit. 12 § 95(A)(3)-(4). Thus, we will only discuss Mayer in regard
to his 2006 afterword and his alleged involvement in a civil conspiracy against plaintiffs.
4
Hett was not involved in the Haraway case and is not mentioned in The Dreams
of Ada. He asserted substantive claims only against Grisham and his publishers.

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directed plaintiffs to file a second amended complaint specifying the alleged defamatory

statements.

In their 116-page second amended complaint, plaintiffs claimed that defendants

engaged in “a massive joint defamatory attack” against them. This attack was motivated

in part by defendants’ shared desire “to further efforts to abolish the [d]eath [p]enalty.”

The district court dismissed the second amended complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

Peterson v. Grisham, No. CIV-07-317-RAW, 2008 WL 4363653, at *10 (E.D. Okla.

Sept. 17, 2008) (unpublished). It also dismissed plaintiffs’ motion to further amend their

complaint. Id. This appeal ensued.

II

We review de novo the district court’s grant of a Rule 12(b)(6) motion to dismiss.

Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir. 2007). “The court’s function on a

Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at

trial, but to assess whether the plaintiff’s amended complaint alone is legally sufficient to

state a claim for which relief may be granted.” Miller v. Glanz, 948 F.2d 1562, 1565

(10th Cir. 1991). We accept all well-pled factual allegations as true and view these

allegations in the light most favorable to the nonmoving party. Sutton v. Utah State Sch.

for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

To survive a Rule 12(b)(6) motion, a plaintiff must allege sufficient facts to make

her “claim for relief . . . plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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557 (2007). While “[t]echnical fact pleading is not required . . . the complaint must still

provide enough factual allegations for a court to infer potential victory.” Bryson v.

Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). If the allegations “are so general that

they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have

not nudged their claims across the line from conceivable to plausible.’” Robbins v.

Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting

Twombly, 550 U.S. at 570).

A

Before evaluating each of plaintiffs’ claims individually, we consider plaintiffs’

general arguments that the district court incorrectly applied Rule 12(b)(6). Plaintiffs

argue that that the district court applied summary judgment standards in evaluating

defendants’ 12(b)(6) motions. It is correct that the district court cited to two summary

judgment cases in its analysis, Partington v. Bugliosi, 56 F.3d 1147 (9th Cir. 1995), and

Riley v. Harr, 292 F.3d 282 (1st Cir. 2002). Peterson, 2008 WL 4363653, at *4-5.

However, the court cited to these cases in discussing the proper review of an alleged

defamatory statement in the context of the book as a whole. When reciting the legal

standard for dismissal, the district court specifically stated it was evaluating defendants’

motions under Rule 12(b)(6). Id. at *1-2.

Plaintiffs also contend that the district court “failed to take into consideration any

of the one-hundred and three . . . pages of specific factual allegations” in their second

amended complaint. According to plaintiffs, the court sweepingly concluded that
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statements by authors regarding government officials and public figures could never be

considered defamatory or otherwise actionable. They further accuse the district court of

neglecting to analyze each of the factual allegations in their complaint on the basis that

the district court noted that such a task would be “boring” and “repetitive.” Id. at *6.

Plaintiffs mischaracterize the district court’s statements. The court did not rule

that defamation claims against authors writing about public officials are never plausible.

Instead, it dismissed plaintiffs’ complaint only “after review of each of the statements

alleged.” Id. Though we encourage district courts to more fully articulate their reasoning

in granting Rule 12(b)(6) motions, the court was not required to engage in a detailed

written analysis of each of dozens of allegedly defamatory statements. The district court

concluded the statements shared common characteristics that preclude relief, and the

record on appeal provides this court with an adequate basis for reviewing each statement.

Cf. Aramburu v. Boeing Co., 112 F.3d 1398, 1401 n.1 (10th Cir. 1997) (reaching a

similar conclusion in a summary judgment context).

B

Turning to plaintiffs’ individual claims, we agree with the district court that each

cause of action fails to state a claim upon which relief can be granted. Taking as true the

facts plaintiffs allege in their second amended complaint, we conclude that defendants are

statutorily protected from suit.

1

Oklahoma law defines libel as “a false or malicious unprivileged publication . . .
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which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends

to deprive him of public confidence, or to injure him in his occupation.” Okla. Stat. tit.

12, § 1441. To state a claim for libel, a plaintiff must allege that a defendant made: “(1)

a false and defamatory statement concerning [plaintiff]; (2) an unprivileged publication to

a third party; and (3) fault amounting to at least negligence on the part of the publisher.”

Cardtoons, L.C. v. Major League Baseball Players Ass’n, 335 F.3d 1161, 1166 (10th Cir.

2003) (citing Sturgeon v. Retherford Publ’ns, Inc., 987 P.2d 1218, 1223 (Okla. Civ. App.

1999)).

Unless a plaintiff demonstrates that a defendant committed libel per se, she must

also plead and prove special damages caused by publication. Id. Because plaintiffs in

this case concede that they alleged no special damages, they must prove libel per se,

which requires a statement that is “clearly defamatory on its face.” Miskovsky v. Tulsa

Tribune Co., 678 P.2d 242, 247 (Okla. 1983) (quotation omitted); see also Nichols v.

Bristow Publ’g Co., 330 P.2d 1044, 1045 (Okla. 1957) (“Per se means by itself, and

without innuendo.” (internal quotations omitted)). In contrast, statements that are

“reasonably susceptible of both a defamatory and innocent meaning” are not libelous per

se. Miskovsky, 678 P.2d at 247 (quotation omitted). Likewise, mere “gratuitous

conclusions of the pleader” cannot be taken to give “words a meaning which they did not

otherwise have.” Okla. Publ’g Co. v. Kendall, 221 P. 762, 764 (Okla. 1923).

Given that plaintiffs are public officials, they face an especially heavy burden in

attempting to demonstrate libel per se. Under Title 12, § 1443.1, of the Oklahoma
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Statutes, “[a]ny and all criticisms upon the official acts of any and all public officers” are

privileged and cannot be considered libelous, unless a defendant makes a false allegation

that the official engaged in criminal behavior. To fall into this category, “the words

alleged to have been spoken of the plaintiff, when taken in their plainest and most natural

sense, and as they would be ordinarily understood, [must] obviously import the

commission of crime punishable by indictment.” Kendall, 221 P. at 764.5

Plaintiffs have not carried their burden. Several of the statements included in

plaintiffs’ second amended complaint do not concern plaintiffs and therefore would not

constitute libel against them regardless of their status as public officials or whether they

had pled special damages.6 As to those that do, we agree with the district court that

5
Kendall may arguably provide for an additional exception: “When a defense of
privileged comment on a matter of public interest is presented by the issues, the plaintiff
may overcome the privilege pleaded either by proof that the publication was inspired by
actual malice, or that the facts published and commented upon were false.” Id. at 768
(quotations omitted); see also John W. Hager, Civil Libel and Slander in Oklahoma, 2
Tulsa L.J. 1, 24-25 (1965); Phillip D. Hart, Note, Libel and Slander: Privilege to
Criticize Public Officials, 12 Okla. L. Rev. 300, 300-02 (1959). We do not address the
potential existence of such an exception because plaintiffs conceded or waived the point
below in their response to a motion to dismiss by stating “[b]ecause of the nature of the
communication this lawsuit is based upon, all statements other than those which ‘falsely
impute[] crime to the’ Plaintiffs are, by statute, privileged communication.” (Quoting
§ 1443.1); see O’Connor v. City & County of Denver, 894 F.2d 1210, 1214 (10th Cir.
1990); see also Kendall, 221 P. at 768 (holding that that once a defendant raises a
§ 1443.1 defense, the plaintiff bears the burden of demonstrating the privilege does not
apply).
6
For example, plaintiffs contend that Grisham falsely stated in his book that the
judge handling Fritz and Williamson’s preliminary hearing was elected, when in fact the
judge was appointed. This statement, although it may convey incorrect information about
Continued . . .
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plaintiffs point to no statement in which defendants directly accuse any plaintiff of a

crime.7 Plaintiffs expect us to scale a mountain of inferences in order to reach the

conclusion that defendants’ statements impute criminal acts to plaintiffs and render the

statutory privilege of § 1443.1 inapplicable. We decline to engage in such inferential

analysis, or to take a myriad of other analytical leaps plaintiffs ask us to make. Any

connection between defendants’ statements and an accusation of criminal activity is far

too tenuous for us to declare them as unprivileged for purposes of § 1443.1.

2

Although the text of § 1443.1 only specifically includes claims for libel,

Oklahoma courts have extended its reach to cover claims for intentional infliction of

emotional distress and false light invasion of privacy. See Kirchstein v. Haynes, 788

P.2d 941, 954 (Okla. 1990) (intentional infliction of emotional distress); Johnson v.

KFOR, 6 P.3d 1067, 1069 (Okla. Civ. App. 2000) (false light). In Kirschstein, the

the judge, does not directly implicate any of the plaintiffs. Thus, as a matter of law, the
statement, along with numerous others that do not directly concern plaintiffs, is not
libelous as to plaintiffs.
7
The district court also determined that the First Amendment protects at least
some of defendants’ statements. Peterson, 2008 WL 4363653, at *4-6. Because
Oklahoma law is dispositive in this case, we need not engage in a constitutional analysis.
But we note that, at a minimum, allowing the plaintiffs to recover would offend the spirit
of the First Amendment. Defendants wrote about a miscarriage of justice and attempted
to encourage political and social change. To the extent their perceptions of the affair
were erroneous, we depend on the marketplace of ideas—not the whim of the bench—to
correct insidious opinions. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40
(1974); accord Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

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Oklahoma Supreme Court held that “when [a] claim for intentional infliction of

emotional distress is based on the same factual underpinnings as a defamation claim for

which the privilege applies, a claim for intentional infliction of emotional distress is also

barred by the reach of the absolute privilege.” 788 P.2d at 954.8 We are faced with the

same factual underpinnings for plaintiffs’ intentional infliction of emotional distress

claims as those for their libel claims. Because we have already determined that § 1443.1

applies to plaintiffs’ libel claims, we necessarily conclude that plaintiffs are also barred

under the statute from asserting a valid claim of intentional infliction of emotional

distress.

Similarly, § 1443.1 protects defendants from plaintiffs’ false light claims. See

Johnson, 6 P.3d at 1069 (applying the privilege to both defamation and false light

claims). Unlike a claim for libel per se, a claim for false light invasion of privacy can

properly rest on a defendant stating a falsehood by implication—such as through the use

of innuendo. See Restatement (Second) of Torts § 652E cmt. b (1977) (“It is not . . .

necessary to the action for invasion of privacy that the plaintiff be defamed.”);

McCormack v. Okla. Publ’g Co., 613 P.2d 737, 741 (Okla. 1980) (“It is not necessary

that the statements be untrue.”). However, there must be a clear connection between a

defendant’s statement and the falsehood that the statement purportedly implies. See

8
We recognize that Kirschstein dealt with the privilege for communications made
in connection with judicial proceedings, but we find its reasoning equally applicable in
the context of § 1443.1.

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Restatement (Second) of Torts § 652E cmt. b, illus. 1-5. As noted, plaintiffs fail to allege

the necessary nexus between defendants’ statements and the proposition that plaintiffs

were involved in a crime.9 It necessarily follows that, under Oklahoma law, plaintiffs fail

to state an actionable claim for false light invasion of privacy.

C

Plaintiffs likewise fail on their final claim, civil conspiracy. A civil conspiracy

consists of two or more persons agreeing “to do an unlawful act, or to do a lawful act by

unlawful means.” Roberson v. PaineWebber, Inc., 998 P.2d 193, 201 (Okla. Ct. App.

1999). But “a conspiracy between two or more persons to injure another is not enough;

an underlying unlawful act is necessary to prevail on a civil conspiracy claim.” Id.

“Disconnected circumstances, any . . . of which[] are just as consistent with lawful

purposes as with unlawful purposes, are insufficient to establish a conspiracy.” Dill v.

Rader, 583 P.2d 496, 499 (Okla. 1978).

Plaintiffs argue that defendants’ parallel conduct in publishing (and republishing)

their books in close temporal proximity and defendants’ endorsements of each other’s

9
For example, plaintiffs contend the following statement by Grisham cast Hett in
a false light as an individual who committed the felony offense of perjury: “The only
proof that remotely tied Fritz to the murder was the hair analysis testimony of Melvin
Hett. . . . Barney and Greg Saunders knew the hair and fingerprint testimony was
suspect.” To construe that statement as imputing perjury to Hett, we would need to infer
from the statement that, in addition to the other individuals named, Hett had personal
knowledge the evidence was suspect to a degree that his testimony could be considered
perjurious. It would be unreasonable to credit so tenuous an inference.

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books are sufficient evidence to establish a civil conspiracy.10 We disagree. Merely

because defendants published their books in close temporal proximity to one another does

not demonstrate there was an illegal agreement to engage in “a massive joint defamatory

attack.” The same is true for book endorsements. There may well have been other

entirely legitimate motives at play, such as a desire to sell more books or aspirations to

foster public support for the abolition of the death penalty. Publishing and endorsing

books are perfectly lawful activities. We conclude that plaintiffs failed to plead either

illegal ends or illegal means, and accordingly the district court did not err in dismissing

plaintiffs’ claim of a civil conspiracy.

III

Having determined that plaintiffs’ second amended complaint fails to state a claim

on which relief may be granted, we now ask whether a new affidavit produced by

plaintiffs changes the equation and effects a different result. The district court

determined it would not, denying plaintiffs’ motion to amend based on new evidence as

futile. Peterson, 2008 WL 4363653, at *9-10. Although we review a district court’s

decision to deny a motion to amend a pleading for abuse of discretion, when the denial is

“based on a determination that amendment would be futile, our review for abuse of

10
Examples of these endorsements include: Grisham’s stating that Journey
Toward Justice is “Compelling and Fascinating”; Fritz’s expressing his thanks to
Grisham “for his friendship, inspiration and encouragement to write my story”; and
Grisham’s endorsing The Dreams of Ada as “[a] riveting true story of a brutal murder in
a small town and the tragic errors made in the pursuit of justice.”

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discretion includes de novo review of the legal basis for the finding of futility.” Miller v.

Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009).

Plaintiffs sought leave to amend their complaint for a third time by supplementing

it with an affidavit allegedly showing that Scheck sought opinions from more than one

expert when he defended Williamson and Fritz. According to plaintiffs, this affidavit

would provide further support for each of their claims. We agree with the district court

that attorneys regularly consult more than one expert. Such “run-of-the-mill litigation

tactics” do not demonstrate a conspiracy. Peterson, 2008 WL 4363653, at *9. Moreover,

the affidavit does not speak to whether any of defendants’ statements impute criminal

activity to plaintiffs. Thus, we take the view of the district court that amendment would

be futile.

IV

For the foregoing reasons, we AFFIRM the district court’s dismissal of plaintiffs’

second amended complaint for failure to state a claim upon which relief can be granted.

We also AFFIRM the court’s denial of plaintiffs’ motion to amend.

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