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WALKER v. GIBSON

June 28, 1985

JACK L. WALKER, PLAINTIFF,
v.
CONNOR GIBSON, JR., DEFENDANT.



The opinion of the court was delivered by: Getzendanner, District Judge:

MEMORANDUM OPINION AND ORDER

This action against a federal official is before the court on the motion to dismiss or for summary judgment of defendant Connor Gibson, Jr. The motions are granted in part, and this action is therefore dismissed. Fed.R.Civ.P. 12(b)(6), 56.

On February 14, 1985, the court dismissed count III of Walker's three-count complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). (The factual allegations of the complaint are recited in that opinion and will be not repeated here.) However, the court declined to dismiss Walker's first and second counts, which contained allegations of defamation and tortious interference with contract. In denying the motion to dismiss counts I and II, the court accepted all of Walker's allegations as true. Moreover, the court was bound to construe liberally Walker's allegations, which included claims of retaliation and continuous harassment by Gibson. The sufficiency of these counts is now before the court on a motion for summary judgment. Thus, while the court draws all reasonable inferences from the evidence in favor of Walker, vague and unsupported allegations cannot create a genuine issue of material fact. Rather, if Gibson adduces evidence tending to show that no dispute of material fact exists that he is entitled to judgment in his favor, Walker must present evidence tending to show that such a dispute of fact does exist. Fed.R.Civ.P. 56(e). Moreover, Walker does not argue that he needs more time to gather sufficient evidence with which to oppose the present motion. Fed.R.Civ.P. 56(f). With these principles in mind, the court will discuss the merits of Gibson's motion.

Count I

Count I of the First Amended Complaint is one for defamation. In it, Walker alleges that:

(First Amended Complaint ¶ 6.)

In his motion to dismiss, Gibson argued that the Illinois one-year limitations period for defamation actions was exceeded by Walker's filing of the complaint on February 8, 1984. (The parties agree that counts I and II are governed by Illinois law and that in Illinois, the statute of limitations for defamation is one year.Ill.Rev.Stat., ch. 110 ¶ 13-201.) Because Walker alleged a continuing pattern of defamation through May 17, 1983, however, the court declined to decide this affirmative defense on a motion to dismiss. Gibson now raises the limitations defense in the present motion for summary judgment, arguing that the undisputed facts show the period was exceeded in this case. Walker has been given the opportunity to present evidence tending to show the period was not exceeded or that it should be tolled for equitable reasons.

In Walker's responses to Gibson's interrogatories, Walker set forth the specific defamatory statements of which he complains. These include February 11 and April 16, 1982 statements that Walker sexually harassed a fellow employee; February 11, April 19, and June 4, 1982 statements that Walker had body odor; and October 26 and November 1, 1982 statements that Walker had used a superior's chauffeur. (Plaintiff's Answers to Defendant's First Set of Interrogatories, # 3.) Walker further answered

  On May 17, 1983 Gibson repeated all charges in
  front of Rosemary Kegley, Robert Marshall,
  Norbert Adams, Jay Carley, Ken Denton and the
  Hearing Officer at Fort Sheridan.

(Id.)

Gibson is correct that all of the statements except those made on May 17, 1983 occurred before February 8, 1983 (one year before the filing of the complaint on February 8, 1984.) Gibson argues further that the May 17, 1983 statements are protected by absolute judicial immunity, and hence cannot be the basis for a timely defamation claim.

Although Walker's interrogatory answer is unclear as to the context of the May 17 statements, Walker does not dispute Gibson's characterization of those statements as made by him to members of a grievance committee at a hearing on charges brought against him by Walker. The parties agree that in Illinois, absolute immunity attaches to statements made in connection with judicial proceedings. The Illinois Appellate Court in McCutcheon v. Moran, 99 Ill. App.3d 421, 54 Ill.Dec. 913, 425 N.E.2d 1130 (1st Dist. 1981), explained this rule as follows:

  It has long been the recognized rule of law that
  whatever is said or written in a legal proceeding
  which is pertinent and material to the matters in
  controversy is privileged and no action of
  slander or libel can be maintained upon it.
  [Citations omitted.] This privilege is no longer
  limited to formal pleadings and in-court
  communications, ...

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