United States District Court, N.D. Texas, Dallas Division
Kenneth R. Parsons, Jr., Plaintiff,
Horace Mann Educators Corp., et al., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.
to 28 U.S.C. § 636(b) and the district judge's
Standing Order of Reference, Doc. 14, the Court now
considers Defendants Allstate Insurance Company and Gilda
L. Spencer's Rule 12(b)(6) Motion to Dismiss
Plaintiff's First Amended Complaint, Doc. 24, and
Defendants Horace Mann Educators Corporation and Douglas
Kevin George's Second Amended Rule 12(b)(6) Motion to
Dismiss, Doc. 25. For the reasons that follow, the
motions should be
filed this lawsuit on July 16, 2018. Doc. 3. In the operative
complaint, he alleges that he was an employee of Defendant
Allstate Insurance Company (“Allstate”) from 2006
until his termination in 2010, after which he worked at
Defendant Horace Mann Educators Corporation (“Horace
Mann”) starting in 2013. Doc. 8 at 5-6, 9-10. While
working at Horace Mann, Plaintiff reported unethical claims
handling by Horace Mann to state officials, after which he
claims Defendants began to harass him. Doc. 8 at 5-6.
Plaintiff resigned from Horace Mann in January 2014 and was
arrested in December 2014 on charges associated with his
employment at Allstate, including embezzlement and corporate
malfeasance. Doc. 8 at 6, 9-10.
alleges that his arrest was the result of a conspiracy among
all Defendants to retaliate against him for reporting Horace
Mann's insurance claim practices. Doc. 8 at 6.
Ultimately, the criminal charges against Plaintiff were
dismissed in September 2016. Doc. 8 at 8-9. Plaintiff asserts
that Defendants (1) violated 42 U.S.C. § 1983; (2)
conspired to interfere with his civil rights in violation of
42 U.S.C. § 1985(3); (3) violated the United Nations
Declaration of Rights of Indigenous Peoples (the
“Declaration”); (4) intentionally and negligently
inflicted emotional distress on him; (5) maliciously
prosecuted him; (6) invaded his privacy; and (7) were
negligent. Doc. 8 at 12-26. Defendants now move to dismiss
Plaintiff's complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Doc. 24; Doc. 25.
plaintiff fails to state a claim for relief under Rule
12(b)(6) when the complaint does not contain “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In order to overcome a Rule 12(b)(6) motion,
a plaintiff's complaint should “contain either
direct allegations on every material point necessary to
sustain a recovery . . . or contain allegations from which an
inference may fairly be drawn that evidence on these material
points will be introduced at trial.” Campbell v.
City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)
considering a Rule 12(b)(6) motion, a court may consider
documents outside the complaint when they are: (1) attached
to the motion to dismiss; (2) referenced in the complaint;
and (3) central to the plaintiff's claims. In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007). Additionally, a court may take judicial notice of
matters of public record without converting a motion to
dismiss into a motion for summary judgment. See
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011) (“Generally, a court ruling on
a 12(b)(6) motion may rely on the complaint, its proper
attachments, documents incorporated into the complaint by
reference, and matters of which a court may take judicial
notice.”) (citation and quotation marks omitted).
Parties' Arguments and Analysis
42 U.S.C. § 1983
complaint, Plaintiff alleges that Defendants conspired with
former Defendant Mecklenburg County, North Carolina to
violate his rights under section 1983. Doc. 8 at 6-8. In
order to successfully maintain a claim against a private,
non-governmental party, a plaintiff must plausibly allege
that the defendant acted under color of state law.
See Cornish v. Corr. Servs. Corp., 402 F.3d
545, 549 (5th Cir. 2005) (section 1983 does not reach
“private conduct, no matter how discriminatory or
wrongful”). After Defendants filed their respective
motions to dismiss, however, Plaintiff stipulated to a
dismissal without prejudice of his case against Mecklenburg
County. Doc. 44. As such, Plaintiff cannot maintain a section
1983 action against the remaining Defendants because, as they
correctly argue, there is no longer a state actor involved in
the case. Doc. 46 at 5-7; Doc. 47 at 2-3.
42 U.S.C. § 1985(3)
alleges that Defendants engaged in “self-dealing to
settle a personal vendetta” against him, shared his
personal information without his consent, and maliciously
pursued false criminal charges against him in “a scheme
to ruin [his] physical, emotional, and financial
state.” Doc. 8 at 21-23. Defendants argue, in relevant
part, that Plaintiff has not stated a ...